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Public Company Option Grants in 2024

Public companies planning to grant stock options, SARs or similar option-like instruments to executive officers in 2024 should consider whether to avoid the windows in which a new disclosure requirement under SEC rules...more

Public Companies Should Pay Attention to the Corporate Transparency Act

Public Companies are Exempt, But . . . Public companies have an exemption from the filing requirements under the new Corporate Transparency Act (CTA) reporting rules. The public company exemption applies to companies that...more

Tighter SEC Cybersecurity Incident Disclosure ‎Requirements Go into Effect Today

The new SEC cybersecurity rules (Release No. 33-11216), codify and build on earlier SEC guidance on cybersecurity risks and incidents and require specific cybersecurity-related disclosures....more

There Is a Big Difference Between ‎‎“Void” and “Voidable”‎

In the iconic “The Princess Bride,” Miracle Max observes that there is a big difference between “all dead” and “mostly dead” and then goes on to prove it. In Holifield v. XRI Investment LLC, 2023 WL 5761367 (Del. Supr. Sept....more

Delaware Court of Chancery Approves ‎Differential Voting Within Same Class

Two recent decisions of the Delaware Court of Chancery offer increased flexibility for Delaware corporations to adopt differential voting by stockholders. Differential voting has typically been used to give key stockholders...more

M&A Broker Exemption Update‎

We are updating our March 6, 2023 QuickStudy that discussed the new statutory exemption under section 15(b)(13) of the Securities Exchange Act of 1934 from broker registration that allows unregistered M&A advisers to provide...more

SEC Adopts Revised Stock Buyback Disclosure Requirements

On May 3, 2023, the SEC adopted final rules relating to corporate stock buybacks. The new rules have some significant differences from those the SEC proposed in December 2021. While the new rules do require significantly...more

Short Extension of Clawback Policy Deadline Suggests Listed Companies Will Need to Adopt Policies by early August

On April 24, 2023, the SEC extended, for a short time, the deadline for the effectiveness of stock exchange listing requirements under the Dodd Frank Act that will require listed companies to adopt clawback policies for...more

Updating Clawback Policies

The public comment period for the new NYSE and Nasdaq listing standards requiring public companies to have expanded clawback policies ended on April 3, 2023. The new standards will require listed companies to have clawback...more

SEC Turns Workplace Misconduct into Disclosure Controls Violation; ‎ Clarifies Protection for Whistleblowers

The SEC announced on February 3, 2023 a settled enforcement action against Activision Blizzard, Inc., finding that it failed to have adequate controls for reporting widespread workplace misconduct to management and used...more

Recent Delaware and Other Decisions Relevant to the MBCA

This article describes two recent Delaware decisions relevant to the Model Business Corporation Act (the “MBCA”). One of those decisions relates to a board’s determination of the availability of surplus to support...more

SEC Adopts New Restrictions on 10b5-1 Plans,‎ Related Disclosure Requirements and Section 16 Filing Changes

On December 14, 2022, the SEC unanimously adopted cooling-off periods and other changes to how plans adopted under Rule 10b5-1 (“10b5-1 Plans”) will work going forward. Executive officers and directors of public companies...more

UK Capital Markets Developments: The ‎Edinburgh Reforms

On December 9th, the UK Government, as part of the Edinburgh Reforms, announced a number of reforms to the UK capital markets landscape. Many of the changes reflect existing post-Brexit governmental findings, following...more

Lessons From SEC Enforcement Actions Involving Corporate Lawyers

The Securities and Exchange Commission (“SEC”) has recently brought several enforcement actions that directly or indirectly involved lawyers. These actions provide reminders to lawyers of their professional responsibility in...more

Delaware Now Permits Exculpation of Corporate Officers

The Delaware General Corporation Law (§ 102(b)(7)) has been amended, effective August 1, 2022, to permit exculpation of corporate officers, but in a more limited way than the exculpation of directors that has long been...more

SEC Proposes Climate-Related Disclosure Rules – What You ‎Need to Know

On March 21, 2022, the Securities and Exchange Commission (“SEC”) proposed new rules (the “Proposal”) that, if finalized, will require reporting companies to disclose climate-related risks, metrics, and other information in...more

SEC Proposes to Shorten Schedule 13D/G Filing Deadlines and Count Equity Derivatives

Last week, the SEC proposed new rules that would shorten the time periods for filing a Schedule 13D or 13G after acquisition of beneficial ownership of 5% or more of the voting stock of a public company from 10 days to 5...more

Delaware Court Addresses De-SPAC Merger Claims

In an important decision, the Delaware Court of Chancery, in In re Multiplan Corp. Stockholders Litigation, 2022 WL 24060 (Del. Ch. Jan. 3, 2022), in denying the defendants’ motion to dismiss, addressed claims against the...more

Delaware Clarifies Its Rules Governing Stockholder Derivative Actions

Derivative actions play an important role in policing corporate insider conduct and compliance by directors and controlling stockholders with their fiduciary duties. A derivative action enables a stockholder, upon...more

Nasdaq Introduces Board Diversity Requirements

On August 6, 2021, the U.S. Securities and Exchange Commission approved Nasdaq’s proposed rule regarding diversity of boards of directors. The approved rule requires that most companies listed on Nasdaq (i) “[p]ublicly...more

Charges Against Nikola Founder Provide Reminder to Use Caution in All Public Statements and Offer Governance Lessons

On July 29, 2021, both the SEC and the U.S. Attorney for the Southern District of New York announced charges against Trevor Milton, the founder, former CEO and former executive chairman of Nikola Corporation, a company...more

Delaware Court of Chancery Finds That Crossing the “Fine Line Between Glaringly Egregious Conduct and an Aggressive Litigation...

As discussed last January, Delaware courts have lowered the threshold for stockholders to gain access to books and records. Stockholders are permitted to obtain books and records so long as they can show a credible basis to...more

SEC Reminds Companies That Earnings Management Can Have MD&A Consequences

In a settled enforcement action against Under Armour Inc. announced on May 3, 2021 the SEC reminded companies that managing earnings, even if accounted for correctly, can have MD&A implications triggering disclosure...more

United States District Court Accepts the “Valid When Made” Doctrine

In Robinson v. National Collegiate Student Loan Trust 2006-2, the U.S. District Court for the District of Massachusetts accepted the validity of the “valid when made” doctrine. The District Court’s acceptance is noteworthy...more

Delaware Court of Chancery Reminds That Rights Plans Have Limits

The Delaware Court of Chancery, in The Williams Companies Stockholder Litigation, 2021 WL 754593 (Del. Ch. Feb. 26, 2021), struck down a shareholder rights plan (commonly known as a “poison pill”) adopted by The Williams...more

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