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SEC Rule 144 Proposals Target “Toxic” Convertible Securities and Paper Filings

Last week the SEC proposed to amend Rule 144 in order to:

  • Eliminate tacking for shares underlying market-adjustable securities of unlisted companies
  • Update and simplify certain filing requirements, including mandating electronic filing of Form 144s

Elimination of tacking for shares underlying market-adjustable securities of unlisted companies

The proposals would amend Rule 144(d)(3)(ii) to eliminate “tacking” for securities acquired upon the conversion or exchange of the market-adjustable securities of an unlisted company – that is, a company without any securities listed, or approved for listing, on a national securities exchange. As a result, the holding period for the underlying securities — either six months for securities issued by a reporting company or one year for securities issued by a non-reporting company — would not begin until the conversion or exchange of the market-adjustable securities.

In the SEC’s view, the change is needed because applying Rule 144 “tacking” provisions to market-adjustable securities undermines one of the key premises of Rule 144, which is that holding securities at risk for an appropriate period of time prior to resale can demonstrate that the seller did not purchase the securities with a view to distribution and as a result is not an underwriter for the purpose of Securities Act Section 4(a)(1).

In transactions involving market-adjustable securities, the discounted conversion or exchange features in these securities typically provide holders with protection against investment losses that would occur due to declines in the market value of the underlying securities prior to conversion or exchange. Often,

SEC affirms NYSE rule changes allowing primary capital raises by issuers in direct listings

Yesterday, by another 3-2 vote, the SEC approved changes to NYSE listing rules relating to primary direct listings after conducting a “de novo” review following objections raised by certain investors and commentators.

In August, using delegated authority, the SEC’s Division of Trading and Markets had approved changes to NYSE listing rules to allow companies to raise capital in connection with a direct listing on the NYSE without a firm commitment offering.  Shortly afterwards, the SEC notified the NYSE that the rule changes had been stayed following receipt of notice from the Council of Institutional Investors (CII) that the CII was submitting a petition for a full Commission review of the delegated approval by the Division.

The Commission conducted a de novo review, considering the CII petition and comments submitted.  The majority decided to affirm the rule change – described in our earlier post – as consistent with applicable law.  The CII’s principal concerns, which were shared by Commissioners Lee and Crenshaw, related to:

  • The lack of an underwriter and corresponding due diligence, resulting in reduced investor protection
  • The reduced ability for shareholders to recover damages for false or misleading disclosures, due to the judicial doctrine of “traceability,” under which courts have held that plaintiffs lack standing to pursue claims if they cannot trace their purchased shares back to the offering covered by the registration statement

In response to these concerns, the SEC majority concluded:

  • Primary direct listings will be registered under the Securities Act and subject

SEC Shows no Goodwill for Issuer

December 16, 2020

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SEC Shows no Goodwill for Issuer

December 16, 2020

Authored by: Ashley Ebersole

The SEC sued Sequential Brands on December 11 in Manhattan federal court, alleging that it failed to accurately calculate and disclose impairments to its goodwill in 2016 and early 2017.  According to the Complaint, this resulted in Sequential’s misleading investors by filing incomplete periodic reports, and failing to maintain both accurate books and records or a system of accounting controls to assure accurate transaction reporting.      

Goodwill is an intangible asset recorded when one company pays more than net fair value to purchase another company.  GAAP mandates that acquiring companies assess potential impairments to their goodwill at least once a year and after any “triggering events,” and that any impairments to goodwill be recorded.  As alleged in the SEC’s Complaint, Sequential‘s annual goodwill testing beginning in fall 2016 that identified no goodwill impairment.  But weeks later, the company performed two additional internal calculations in December 2016 using the same methodology employed in its annual testing (and described in public filings).  These calculations indicated that Sequential’s goodwill was likely impaired, but the company did not share these results with its auditor.  The SEC alleges that rather than recording this impairment, Sequential performed a third, qualitative assessment that concluded goodwill was not impaired, but failed to account for internal fair value calculations and significant negative developments in its business.  Sequential thus avoided recording any goodwill impairment in 2016, which the Complaint says preserved its operating income at an inflated level, conveyed a false impression of financial health, and led to its filing

SEC Penalizes Public Company for Misleading Disclosures of COVID-19 Impact

In its first enforcement action against a public company for misleading disclosures regarding COVID-19’s business impact, the SEC released a December 4 Order Instituting Proceedings against The Cheesecake Factory Inc. and accepted its offer of settlement for a civil penalty of $125,000.  The charges arose from conduct in the period as the COVID-19 pandemic was first spreading across the United States.

As recounted in the SEC’s Order, Cheesecake Factory repeatedly made 8-K current report filings in March and April 2020.  Those disclosures presented a misleading optimistic assessment that its restaurants were “operating sustainably at present” under an off-premises (takeout and delivery) dining model.  The Order further detailed that the restaurant chain’s “operating sustainably” assessment failed to account for corporate expenses, and its misleadingly positive portrayal was contrary to the reality that Cheesecake Factory was losing $6 million cash per week and its cash on hand could support only a few more months of operations.  Finally, in the latest iteration of “you cannot characterize as a possibility that which has already occurred,” Cheesecake Factory was penalized for the March disclosure that it was “evaluating additional measures to further preserve financial flexibility.”  This omitted that the company had already determined to take some measures, as exemplified by its late March notification to landlords that it would not be making April rent payments.

While just the first of its kind, this action is consistent with the Division of Corporation Finance’s March 25, 2020 Disclosure Guidance that cautioned reporting companies regarding disclosure

The SEC Experiments: Proposed Amendments to Include Certain Gig Workers in Compensatory Offerings under Rule 701 and Form S-8

The SEC recently voted to approve proposed amendments to Rule 701 and Form S-8 governing the offer or sale of securities to employees through compensation programs.  The proposed amendments provide for a temporary, five-year expansion of Rule 701 and Form S-8 to permit public and private companies to issue securities as compensation to certain “platform,” or “gig” workers, subject to various conditions.

Rule 701 provides an exemption from registration under the Securities Act of 1933, as amended, for the sale of securities by privately held companies to compensate employees, consultants, advisors and certain others under written compensatory benefit plans or written agreements.  Form S-8 is used by SEC reporting companies to register the sale of public company securities to employees, consultants and advisors.  Neither Rule 701 nor Form S-8 currently covers issuances to platform workers.

The proposed amendments to Rule 701 would allow a non-reporting company to offer and sell securities to “platform workers,” who are defined in the amended rules as workers who, pursuant to a written contract or agreement, provide services to an issuer or a third party through the issuer’s “internet-based marketplace platform or through another widespread, technology-based marketplace platform or system.”  The proposed amendments to Form S-8 would permit a reporting issuer to include that same category of workers in compensatory offerings registered on Form S-8.  The proposed amendments also include conditions that are designed to limit the possibility that the amended rules could result in offers and sales of securities for capital-raising, rather than

SEC Proposes Significant Amendments to Rule 701 and Form S-8 to Better Align with Current Employment Practices

The SEC recently approved proposed amendments to rules governing the offer or sale of securities to employees through compensation programs. The proposed changes to Rule 701 — which exempts sales of securities by privately held companies made to compensate employees, consultants and advisors — and Form S-8 – which is the form used to register the sale of public company securities to employees and others — are designed to modernize the framework for compensatory securities offerings in light of the significant evolution in such offerings and the composition of today’s workforce.

We have prepared a client alert describing the amendments that can be found here.

New SEC Enforcement Priorities Likely Under Biden Administration

November 18, 2020

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BCLP Washington Partner Ashley Ebersole was quoted Nov. 13 by Compliance Week regarding possible new enforcement priorities at the Securities and Exchange Commission under a Biden administration. Much will hinge on selection of a new SEC chairman, as current Chairman Jay Clayton has announced his intent to step down at year end before his term officially is scheduled to end in June 2021. “Selection of the new SEC chair, whether from inside the agency or outside, will signal much in terms of the likely approach,” said Ebersole, a former SEC attorney. He also noted that compliance officers “should be prepared for a continued SEC enforcement focus on pursuing fraud involving Main Street investors, but also a likely redoubling of efforts to sanction conduct by financial institutions.”

SEC Modernizes Auditor Independence Rules to Focus on Actual Threats to Objectivity

The Securities and Exchange Commission (the “SEC”) recently adopted final amendments to the auditor independence requirements set forth in Rule 2-01 of Regulation S-X.  The SEC stated that the final amendments were based on recurring fact patterns that the SEC staff has observed over the years in which certain relationships and services triggered technical independence rule violations without necessarily impairing an auditor’s objectivity and impartiality.  These relationships either triggered non-substantive rule breaches or required potentially time-consuming audit committee review of non-substantive matters, thereby diverting time, attention, and other resources of audit clients, auditors, and audit committees from other investor protection efforts.

In the adopting release, the SEC stated that the amendments “…maintain the bedrock principle that auditors must be independent in fact and in appearance while…more effectively focusing the independence analysis on those relationships or services that are more likely to threaten an auditor’s objectivity and impartiality.”  The SEC anticipates that Rule 2-01, as amended, will make the auditor independence rules easier to apply and appropriately limit the situations in which auditors are not deemed to be independent.

The amendments include, among others:

  • In connection with determining whether auditor independence exists in the context of initial public offerings, an amendment shortening the applicable look-back period to cover the immediately preceding fiscal year (rather than the period covered by the registration statement, which can be up to three years);
  • In connection with identifying relationships that may preclude a finding of auditor independence, an amendment providing that a sister entity

DOJ Releases Framework for Cryptocurrency Enforcement

On October 8, 2020, the U.S. Department of Justice (“DOJ”) released the publication “Cryptocurrency: An Enforcement Framework,” (“Framework”) which described emerging threats and enforcement challenges associated with cryptocurrency. DOJ’s Cyber-Digital Task Force produced the Framework to highlight important relationships DOJ has built with other domestic and international regulatory and enforcement partners, and its strategic response to address emerging issues concerning cryptocurrency and the “blockchain” or “distributed ledger” technology underlying it.  The Framework’s stated goal is to ensure that cryptocurrencies and associated technologies are safe and do not imperil public safety or national security. While DOJ explicitly recognizes cryptocurrency’s potential in the Framework, it also outlines both threats and illicit opportunities that cryptocurrency provides for nefarious actors.

For a full discussion of the Framework, please refer to this BCLP client alert co-authored by Ashley Ebersole, Ben Saul, Mark Sere and Jason Semmes.

SEC Charges Andeavor LLC With Stock Buyback Controls Violations

On October 15, 2020, the Securities and Exchange Commission (“SEC”) announced settled charges against U.S. refiner Andeavor LLC (“Andeavor”) for inadequate controls related to a stock buyback plan it executed while it was in talks to be acquired by Marathon Petroleum Corp. in 2018. Without admitting the SEC’s findings, Andeavor agreed to pay a $20 million penalty to settle the charges.

According to the SEC, in March of 2017 Andeavor’s then-Chairman and CEO began confidential discussion with Marathon’s Chairman and CEO about a potential business combination. After months of analysis regarding the potential synergies that a combined company would produce, the CEOs agreed to suspend their discussions. Then in February 2018, just two days before a meeting to resume talks about a potential deal, Andeavor’s CEO directed its then-CFO to initiate a share buyback to repurchase $250 million of shares. The SEC found that Andeavor’s internal accounting controls failed to ensure the buyback adhered to the company’s securities trading policy, a policy that prohibited repurchases while the company was in possession of material non-public information.

Andeavor used an abbreviated and informal process to evaluate whether the requirements for the buyback were satisfied. That process did not require conferring with persons reasonably likely to have material non-public information about corporate developments prior to approval of the share repurchase. As a result, no one involved in Andeavor’s process discussed with Andeavor’s CEO the prospects that Andeavor and Marathon would agree to a deal. Because they did not do so, the company

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