Now This Is Truly Discomfiting – The SEC Proposes To Give Itself A 270 Day Extension!


In July 2010, Congress ordered the Securities and Exchange Commission to adopt a resource extraction rule within 270 days (i.e., by April 17, 2011).  The SEC missed that deadline by 1 year, 4 months and 2 days (or a total of 490 days).  In 2013, however, the U.S. District Court for the District of Columbia vacated

When Is Medical Information Considered Sensitive?

As discussed in yesterday’s post, the Securities and Exchange Commission has proposed that persons involved in administrative proceedings be required to submit all documents and other items electronically.  Under the SEC’s proposal, parties would be required to omit “sensitive health information” that is identifiable by individual.  The Privacy Act of 1974, however, prohibits agencies from disclosing information that

SEC Proposes “A Clearly Unwarranted Invasion of Personal Privacy”

Last week, the Securities and Exchange Commission proposed that persons involved in administrative proceedings be required to submit all documents and other items electronically.  The SEC is proposing these rules as part of its effort to create a comprehensive Internet-based electronic system that would, among other things, allow for the electronic filing and service of documents in

Where In The World Is An Issuer’s Home Country?

The Securities and Exchange Commission’s proposed rules setting listing standards for recovery of erroneously awarded compensation would allow exchanges to permit foreign private issuers to forgo recovery as impracticable if the recovery of erroneously awarded compensation pursuant to Section 10D would violate the home country’s laws so long as certain other conditions are satisfied.  Although the

California Judge Sides With Congress and Fifth Circuit In Whistleblower Split

Sean McKessy, Chief, Securities and Exchange Commission’s Office of the Whistleblower, Division of Enforcement discussed a recent split between the circuits this webcast broadcast last Thursday by  The split concerns whether the Dodd-Frank Act prohibits employer retaliation only against “whistleblowers”, who are defined as: . . . any individual who provides, or 2 or more individuals acting jointly who provide,

A Most Nescient Comment?


Monday was the close of the comment period on the Securities and Exchange Commission’s proposed rules with respect to listing standards requiring recovery of erroneously paid incentive compensation. In addition to myself, several commenters pointed out that the proposed rules make no allowance for state law.  I noted a potential conflict with California Labor Code

Court Rules That The SEC Unlawfully Withheld Action Mandated By Congress

Last fall, I wrote about Oxfam America’s second lawsuit to force the Securities and Exchange Commission to adopt a resource extraction disclosure rule under Section 1504 of the Dodd-Frank Act.  Readers may recall that Congress ordered the SEC to adopt rules by April 17, 2011.  The SEC, however, missed that deadline by over a year and

Can The SEC Ignore Congress’ Plain Language?

In proposing executive incentive compensation clawback rules, the Securities and Exchange Commission departs materially from the plain words of Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.  Section 954 (codified at Section 10D of the Securities Exchange Act of 1934) states that an issuer will recover incentive-based compensation received during the

SEC Is Sued Again For Doing Nothing

Yesterday, Broc Romanek wrote about a lawsuit filed earlier this week against the Securities and Exchange Commission due to its failure to respond to a petition asking the Commission to adopt political spending disclosure requirements. But must the Commission act on the petitions that are submitted to it?  Rule 192 of the Commission’s Rules of

How Many Board Members Are Required To Take Action?

Suppose your corporation has a five member board of directors but two seats are vacant.  Suppose further that your corporate bylaws included the following two provisions: A.  Three members of the board shall constitute a quorum for the purpose of transacting any business of the board. B.  Any final action of the board shall be