On December 11, the Court of Appeals for the Fifth Circuit vacated Nasdaq Listing Rule 5605(f) and Nasdaq Listing Rule 5606(a) (together with Nasdaq Listing Rule IM-5900-9, the Board Diversity Rules) by a 9-8 vote. In Alliance for Fair Board Recruitment v. SEC, the Fifth Circuit held that the Securities and Exchange Commission (SEC) acted outside of its authority when it approved Nasdaq’s Board Diversity Rules in 2021.
Continue Reading Fifth Circuit Vacates Nasdaq Board Diversity RulesHow to Tackle Greenwashing Claims
I authored an article for Bloomberg Law discussing steps companies can take to protect themselves in the shifting and complex landscape of environmental, social, and governance (ESG) transparency.
To reduce the risk of greenwashing claims, I recommend that companies have third-party auditors verify their ESG data and establish strong internal controls.
Continue Reading How to Tackle Greenwashing ClaimsPCAOB Delays NOCLAR Rulemaking to 2025 Amid Controversy and Election-Year Dynamics
The Public Company Accounting Oversight Board (PCAOB) delayed the adoption of a final rule with respect to its June 2023 proposal (Proposal) to increase auditors’ responsibility to evaluate and disclose a public company’s noncompliance with laws and regulations (NOCLAR). While the PCAOB originally indicated the Proposal would be adopted in 2024, the PCAOB’s website now states there will be no further action on the Proposal until 2025.
Continue Reading PCAOB Delays NOCLAR Rulemaking to 2025 Amid Controversy and Election-Year DynamicsWatch Now | ESG Outlook: Preparing for the 2025 Reporting Season Webinar
Join us, along with prominent environmental, social and governance (ESG) and corporate and securities thought leaders for the next session in our ESG Impact Webinar Series. As public companies prepare for the 2025 reporting season amid the transition to the new administration, staying ahead of the curve is essential.
Continue Reading Watch Now | ESG Outlook: Preparing for the 2025 Reporting Season Webinar
Motion for Summary Judgement Denied: Battle over California Climate Legislation Continues
Soon after California passed far-reaching climate legislation last year (referred to herein as SB 253 and SB 261; see our earlier blog post here and here for background), it was challenged in the U.S. District Court for the Central District of California (the district court). In Chamber of Commerce of the United States of America et al. v. California Air Resources Board et al., No. 2:24-cv-00801 (C.D. Cal. 2024), the plaintiffs claimed that SB 253 and 261 violated the First Amendment, among other constitutional challenges.
Continue Reading Motion for Summary Judgement Denied: Battle over California Climate Legislation ContinuesSEC Charges Former Public Company Director and CEO with Concealing Close Friendship with Company Executive
As most public companies enter their fourth fiscal quarter and look ahead to filing their Form 10-Ks and proxy statements, a recent settlement agreement announced by the Securities and Exchange Commission (the SEC) serves as a cautionary tale about director independence and SEC disclosure requirements.
Continue Reading SEC Charges Former Public Company Director and CEO with Concealing Close Friendship with Company ExecutiveUpdate (and Refocus) on California Climate Disclosures
As anticipated, on September 27, California Governor Gavin Newsom signed into law Senate Bill 219 (SB 219), after the California legislature passed it on August 31, 2024. SB 219 amends the Climate Corporate Data Accountability Act (SB 253) and the Climate‐Related Financial Risk Act (SB 261), both of which are summarized in our previous blog post.
Continue Reading Update (and Refocus) on California Climate DisclosuresRecyclable K-Cups: Investors Beware?
On September 10, the Securities and Exchange Commission (the Commission or SEC) charged Keurig Dr Pepper Inc. (Keurig) for making inaccurate statements about the recyclability of its K-Cup single-use beverage pods. Without admitting or denying the findings in the order, Keurig agreed to a cease-and-desist order and to pay a civil penalty of $1.5 million.
Continue Reading Recyclable K-Cups: Investors Beware?The Time is Here: Public Companies Should be Mindful of the Upcoming Insider Trading Policy Form 10-K Exhibit Filing Requirement
In connection with the upcoming Form 10-K/proxy season, public companies with a fiscal year ending on December 31 will be required, for the first time, to publicly file their insider trading policies as exhibits to their Annual Report on Form 10-K pursuant to Item 408(b) of Regulation S-K. Prior to this SEC rules requirement, it was fairly uncommon for public companies to make their insider trading policies publicly available (on a voluntary basis).
Continue Reading The Time is Here: Public Companies Should be Mindful of the Upcoming Insider Trading Policy Form 10-K Exhibit Filing RequirementJust In! More Guidance on Material Cybersecurity Incidents (Item 1.05 of Form 8-K)
On June 24, the Securities and Exchange Commission (SEC) released five additional Compliance and Disclosure Interpretations for Item 1.05 of Form 8-K (Material Cybersecurity Incidents). These interpretations provide additional guidance as to whether and when materiality determinations should be made and when related reporting obligations arise.
Continue Reading Just In! More Guidance on Material Cybersecurity Incidents (Item 1.05 of Form 8-K)