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The SEC’s Flawed Changes To Exchange Act Forms

Title I of the Jumpstart Our Business Startups (aka JOBS) Act amended the Securities Act and the Exchange Act to provide some regulatory relief to issuers that qualify as an “emerging growth company”.  Recently, the Securities and Exchange Commission adopted various changes to its forms and rules to conform to Title I.  The SEC elected not to comply with the notice and…

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Did The SEC Staff Bypass The APA In Issuing New And Revised Non-GAAP Financial Measure C&DIs?

Earlier this week, the staff of the SEC’s Division of Corporation Finance issued several new, and rewrote several existing, Compliance and Disclosure Interpretations (“C&DIs”) relating to Non-GAAP Financial Measures.  Recently, the SEC has been signaling that it intends to crack down on company disclosures of Non-GAAP Financial Measures.  While some are likely to welcome additional guidance…

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Did The SEC Violate The Administrative Procedure Act?

Yesterday, Broc Romanek wrote about the joint dissent issued by Commissioners Daniel M. Gallagher and Michael S. Piwowar with respect to the Commission’s recent adoption of Regulation SBSR which requires regulatory reporting of security-based swap information and the public dissemination of security-based swap transaction, volume, and pricing information by registered security-based swap data repositories.  But when exactly…

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The SEC’s Rule Making Rule Doesn’t Follow The Rules

As discussed in yesterday’s post, Congress has once again directed the Securities and Exchange Commission to engage in rule making.  The SEC almost always adopts rules through the informal rule making procedures of the Administrative Procedure Act (5 U.S.C. § 553) rather than the formal, on the record provisions (5 U.S.C. §§ 556 & 557).  In general, Section 553…

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C&DIs And The APA

On Monday, Broc Romanek wrote that the SEC’s Division of Corporation Finance has issued a new Compliance & Disclosure Interpretation clarifying how say-on-pay proposals should appear on the proxy card.   Many may welcome additional guidance from the staff.  I’m concerned. C&DIs reflect the views of the Corp Fin staff.  Although the SEC’s website claims that C&DIs are not…

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