TheCorporateCounsel.net

November 14, 2008

Corp Fin’s New Bag of Tricks: E-mail Your Questions!

Yesterday, Corp Fin posted this overview of its policy offices, including some organization chart information. My guess is the SEC will have trouble keeping their org chart updated, as we have found maintaining our own “Corp Fin Org Chart” challenging given the surprising number of moves over time – but we do keep it updated.

The big news is that these policy offices – including all your favorites like Chief Counsel’s, OMA, International and Chief Accountant’s – will now accept interpretive queries in writing via this online form.

Wow! It will be interesting to see if the volume of queries changes at all – my guess is it will go up, which will be a bummer for the Staff. But on the plus side from the Staff’s perspective, the queries will likely be couched more clearly when reduced to writing. Having worked myself in Chief Counsel’s office, it can be difficult to try to answer a question posed over the phone, particularly if the questioner is strangely vague or inexperienced (or drunk, but that’s a long story).

Then again, one may have the jaundiced view expressed by a member yesterday: “The chances of getting email questions answered by Corp Fin are about as good as getting phone calls answered these days – slim to none.”

November-December Issue: Deal Lawyers Print Newsletter

This November-December issue of the Deal Lawyers print newsletter was just sent to the printer and includes articles on:

- Responding to Liquidity/Capital Constraints: The Joint Venture Decision Tree
- Breaking Up is Hard to Do – and Must Be Done Carefully
- Lessons from the Meltdown: Reverse Termination Fees
- Getting Engaged: When Hiring an M&A Financial Advisor, It’s All About the Contract
- Leveraging a Dealroom: A “How To” Guide
- Expanded Liability for Representations and Warranties: Limiting Survival Provisions
- Liquidity Facilities: The SEC Moves Towards Less Tender Offer Regulation

As all subscriptions are on a calendar-year basis, please renew now to receive the next issue. If you’re not yet a subscriber, try a 2009 no-risk trial to get a non-blurred version of this issue (and the rest of ’08) for free.

FINRA Proposes Changes to Research Quiet Period

Recently, Margaret Tahyar of Davis Polk noted the following from Harvard Law’s “Corporate Governance” Blog:

FINRA proposed new “Research Registration and Conflict of Interest Rules.” The proposed rules would replace the existing NYSE and NASD Rules governing research analyst conflicts of interest and would also supersede the proposed changes to those rules published by the SEC in January 2007.

Significantly, the proposed rules would shorten, and in some cases eliminate, the “quiet period” during which a member firm participating in an offering cannot publish or distribute research reports about the issuer, and the firm’s research analyst cannot make public appearances relating to the issuer.

Under current rules, the quiet period is:

- 40 days following the date of the initial public offering for lead underwriters and 25 days after the offering for other underwriters or dealers;

- 10 days following a follow-on offering; and

- 15 days before and after expiration, waiver or termination of a lock-up agreement.

Under the proposed rules, the quiet period would be limited to a single 10-day period following an IPO. Follow-on offerings and lock-up expirations, waivers and terminations would no longer trigger a quiet period. Note that the 25-day prospectus delivery period for an IPO may lead to all underwriters continuing to maintain a 25-day quiet period.

FINRA is requesting comment on the proposed rules by November 14, 2008. If, after receiving comment, FINRA determines to proceed with the proposed rules, it would need to file them with the SEC for approval. The SEC would publish the proposed rules in the Federal Register and subject them to an additional public comment period. The period for comment ends today.

- Broc Romanek