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SEC Updates to Disclosure Rulebook and Fee Rate

On August 17, 2018, the Securities and Exchange Commission (“SEC”) finalized a series of amendments to its rules and forms with the aim of reducing redundant and outdated disclosure requirements for public companies. Although many of the modifications simply “clean up” references and cross-references that have become outdated due to changes in accounting terminology or other revisions to the SEC’s forms and rules, several of the amendments do serve to remove certain disclosure requirements previously required by the SEC. The summary below outlines those modifications that may be of significance to public companies.

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U.S. House Passes JOBS Act 3.0

On July 17, 2018, the U.S. House of Representatives passed the “JOBS and Investor Confidence Act of 2018.” This bill is the third piece of the “Jumpstart Our Business Startups (JOBS) Act” legislation, and its aim is to reform capital markets to assist small businesses and entrepreneurs in accessing capital. The bill is set to be voted on by the Senate during the fall and will become effective 90 days after it is signed by the President.

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SEC Issues Guidance on Cybersecurity Disclosures

On February 20, 2018, the Securities and Exchange Commission (SEC) issued interpretive guidance to assist public companies in preparing disclosures about cybersecurity risks and incidents. This guidance indicates that the SEC is expecting more robust cybersecurity-related disclosures in the filings of public companies and encourages companies to implement comprehensive cybersecurity policies and procedures.

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SEC Issues Additional Interpretive Guidance on Pay Ratio Rule

On September 21, 2017, the Securities and Exchange Commission (SEC) issued interpretive guidance on the CEO pay ratio rule. Simultaneously, the SEC’s Division of Corporation Finance issued guidance on calculation of the pay ratio and updated C&DIs related to the new guidance. Together, these issuances strongly suggest that the SEC is not modifying or deferring the effectiveness of the rule and that it will be in place for the upcoming 2018 proxy season.

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SEC Expands Confidential Draft Registration Statement Procedures to All Issuers

Beginning on July 10, 2017, the Securities and Exchange Commission’s (“SEC”) Division of Corporation Finance will accept nonpublic draft registration statements from all issuers relating to IPOs and initial registrations under Section 12(b) of the Securities Exchange Act of 1934 (“Exchange Act”).

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UPDATE ON THE SEC’S "CONFLICT MINERALS" DISCLOSURE RULES: D.C. DISTRICT COURT UPHOLDS COURT OF APPEALS DECISION

On April 3, 2017, the D.C. District Court affirmed the 2014 decision by the U.S. Court of Appeals for the D.C. Circuit, striking down part of the U.S. Securities and Exchange Commission’s (“SEC”) conflict minerals rules that require publicly-traded companies to disclose whether their products contain certain minerals from certain central African countries.

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New SEC Rule Requires Hyperlinks to Exhibits in SEC Filings

The U.S. Securities and Exchange Commission (“SEC”) has adopted new rules making it easier for investors to find exhibits to an issuer’s public filings. Currently, issuers submit electronic filings to the SEC using the Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR”), which include exhibits that are incorporated by reference to earlier filings. Investors are therefore required to search through earlier filings in order to find these exhibits, such as material contracts, articles of incorporation, and other material documents.

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The SEC Continues to Pursue Enforcement Actions Against Companies For Whistleblower Violations

Protecting and encouraging whistleblowers has been a priority for the U.S. Securities and Exchange Commission (“SEC”) and its enforcement division. The SEC recently announced enforcement actions against two companies for their use of restrictive language in severance agreements that required departing employees to waive their rights to any monetary recovery under Rule 21F-17 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The rule, promulgated under the Dodd-Frank Act, is part of the SEC’s whistleblower program and is intended to prohibit employers from interfering with an employee’s right to report potential securities law violations to the SEC.

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SEC Issues Guidance on Submission of Annual Reports for Information Purposes

On November 2, 2016, the Securities and Exchange Commission (“SEC”) published new guidance in the form of a Compliance and Disclosure Interpretation (“C&DI”) on the requirement that registrants submit copies of their annual report to the SEC for information purposes.

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Reminders for the 2017 Proxy Season

Many calendar year-end companies are beginning to prepare for annual meetings and related proxy soliciting activities. As part of that preparation, companies are turning to recent SEC rules, regulations, and policy updates. This advisory provides some reminders and updates for companies as they prepare for the 2017 proxy season.

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