Up To Date: Current Developments In Securities Laws - January 2014 (No. 14)

Author:Ms Yelena Barychev, Francis E. Dehel, Melissa Palat Murawsky and Michael E. Plunkett
Profession:Blank Rome LLP


Disclosure Pendulum May Start Swinging Back

During the last decade, practitioners have been continuously amazed with the increasing level of public company regulation. The general direction of the Sarbanes-Oxley Act and the Dodd-Frank Act, and naturally the SEC rules implementing these acts, has always been more and more disclosure (the more granular and detailed—the better). It seemed like the disclosure pendulum was swinging higher and higher towards overregulation and that it would never go back. But the report on public company disclosure issued by the SEC on December 20, 2013, as mandated by the JOBS Act, gives a lot of hope that the disclosure pendulum may eventually start swinging back.

This Report on Review of Disclosure Requirements in Regulation S-K, which largely follows the concepts outlined by SEC Chair Mary Jo White in her October speech before the National Association of Corporate Directors, recommended to Congress a comprehensive review of SEC disclosure rules and forms focusing on the following potential areas:

modernizing and simplifying Regulation S-K requirements in a manner that reduces the costs and burdens on companies while still providing material information; eligibility for further scaling of disclosure requirements and definitional thresholds for smaller reporting companies, accelerated filers and large accelerated filers; evaluating whether Industry Guides still elicit useful information and conform to industry practice and trends; reviewing financial reporting requirements of Regulation S-X and financial statement disclosure requirements of Regulation S-K (e.g., annual and quarterly selected financial data disclosure and the ratio of earnings to fixed charges); and disclosure requirements contained in SEC rules and forms (e.g., Forms 10-Q and 8-K). The Staff provided detailed guidance on its suggested review of Regulation S-K, which would address the following issues:

principles-based approach as an overarching component of the disclosure framework (e.g., using a disclosure model of current MD&A requirements) (which may have an unintended consequence of leading to more disclosure rather than less); current scaled disclosure requirements and whether further scaling would be appropriate for emerging growth companies or other categories of issuers; filing and delivery framework based on the nature and frequency of the disclosures (e.g., a "core" disclosure or "company profile" filing with information that changes infrequently, periodic and current disclosure filings with information that changes from period to period, and transactional filings that have information relating to specific offerings or shareholder solicitations); and readability and navigability of disclosure documents (e.g., the use of hyperlinks) as well as replacing quantitative thresholds (e.g., Item 103 (Legal Proceedings), Item 404 (Transactions with Related Persons, Promoters and Certain Control Persons) and Item 509 (Interests of Named Experts and Counsel)) with general materiality standards. In addition to these issues, the Staff identified the following specific areas of Regulation S-K disclosure that could benefit from further review:

risk-related requirements, such as risk factors, legal proceedings and other quantitative and qualitative information about risk and risk management, with potential consolidation into a single requirement; relevance of current requirements for the description of business and properties; corporate governance disclosure requirements (to confirm that the information is material to investors); executive compensation disclosure (to confirm that the required information is useful to investors); offering-related requirements (in light of the changes in offerings and the shift from paper-based offering documents to electronically-delivered offering materials); and exhibits to filings (to confirm whether the required exhibits remain relevant and whether other documents should be added). CORPORATE GOVERNANCE

NASDAQ Amended its Independence Standards for Compensation Committee Members

On December 11, 2013, the SEC published a notice of filing and immediate effectiveness of the proposed rule change related to the independence of compensation committee members under the listing standards of The NASDAQ Stock Market LLC (Rule 5605(d)(2)(A) and IM-5605-6). NASDAQ replaced the prohibition on the receipt of compensatory fees by compensation committee members with a requirement that a board of directors instead consider the receipt of such fees when determining eligibility for compensation committee membership. NASDAQ cited the feedback that it had received from listed companies as the reason for these changes. The new rules are almost identical to the NYSE's rules related to compensation committee independence and, if adopted, would remove the anomaly of NASDAQ listing rules being more stringent than NYSE rules.

The new Rule 5605(d)(2)(A) states that in affirmatively determining the independence of any compensation committee member, the board must consider all factors specifically relevant to determining whether a director has a relationship to the company which is material to that director's ability to be independent from management in connection with the duties of a compensation committee member, including, but not limited to:

the source of compensation of such director, including any consulting, advisory or other compensatory fee paid by the company to such director; and whether such director is affiliated with the company, a subsidiary of the company or an affiliate of a subsidiary of the company. In IM-5605-6, NASDAQ clarified that when considering the sources of a director's compensation in determining compensation committee member independence, the board should consider whether the director receives compensation from any person or entity that would impair the director's ability to make independent judgments about the company's executive compensation, including compensation for board or board committee services.

The approach to the affiliation prong of the...

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