May 7, 2012

Corp Fin Issues 24 More JOBS Act FAQs

On Thursday, Corp Fin added more JOBS Act FAQs – #18-41 in their series – related to Title I of the JOBS Act regarding scaled disclosure and EGCs. The first 17 were issued three weeks ago. We are continuing to post oodles of memos regarding them in our “JOBS Act” Practice Area. According to this Reuters article, the JOBS Act has piqued the issue of some European companies to do IPOs in the US.

Thanks to the yeoman efforts of our gang of ’33 Act experts, we have rushed the May-June issue of The Corporate Counsel to the printers over the weekend, which contains in-depth and practical guidance on the JOBS Act, including how these latest FAQs factor into the new framework. If you’re not yet a subscriber, try a no-risk trial now to get the issue as soon as it’s dropped in the mail…

Corp Fin Reconsiders CDI on Trust Indenture Act & Asset-Backed Securities

On Thursday, Corp Fin issued the note at the end of Trust Indenture Act CDI 202.01 to note its reconsidering the CDI due a court case as noted below:

202.01 Certificates representing a beneficial ownership interest in a trust are offered to the public pursuant to a registration statement under the Securities Act. The assets of the trust include a pool of mortgage loans with multiple obligors administered pursuant to a “pooling and servicing agreement.” Partial payment of the certificates is guaranteed by a third party. The certificates are treated as exempt from the Trust Indenture Act under Section 304(a)(2) thereof. The guarantee of the certificates is exempt under Section 304(a)(7). [March 30, 2007]

N.B.: On April 3, 2012, a federal district court in the Southern District of New York ruled, in denying a motion to dismiss, that the Trust Indenture Act of 1939 applies to asset-backed securities in the form of certificates. See Retirement Board of the Policeman’s Annuity and Benefit Fund of Chicago v. The Bank of New York Mellon, No. 11 Civ. 5459 (WHP), 2012 U.S. Dist. LEXIS 47133 (S.D.N.Y. Apr. 3, 2012).

The staff is considering CDI 202.01 in light of this ruling. [May 3, 2012]

CalSTRS Files First Shareholders Derivative Lawsuit

As noted in this NY Times article, CalSTRS has filed a shareholder derivative lawsuit against the officers and directors of Wal-Mart over allegations that the company violated the Foreign Corrupt Practices Act.

Notably, its the first time that this large institutional investor has filed a shareholders derivative lawsuit. In my opinion, this could be the biggest surprise development of a pretty wild proxy season as there is nothing more effective than “governance by gunpoint”…Chesapeake Energy next?

– Broc Romanek