E-Minders October 2016


In This Issue:

E-Minders is our monthly e-mail newsletter containing the latest developments and practical guidance for corporate & securities law practitioners.

We view TheCorporateCounsel.net as the gathering place for the community and encourage those who may not yet be members to take advantage of a "Free for Rest of '16" No-Risk Trial to see what you are missing. Here are 10 Good Reasons to try us now.

You can subscribe below to receive a complimentary E-Minders subscription - even if you don't subscribe to TheCorporateCounsel.net. Our hope is that once you get to know us, you will understand the true value of a subscription to TheCorporateCounsel.net. Note that subscribers to TheCorporateCounsel.net should sign up below for E-Minders too, as we don't have the e-mail addresses for many people in our community.

Our Executive Pay Conferences: Just 3 Weeks Left! We have posted the registration information for our popular conferences - "Tackling Your 2017 Compensation Disclosures: Proxy Disclosure Conference" & "Say-on-Pay Workshop: 13th Annual Executive Compensation Conference" - to be held October 24-25th in Houston and via Live Nationwide Video Webcast. Here are the agendas - 20 panels over two days.

Last Chance to Register: Huge changes are afoot for executive compensation practices with pay ratio disclosures on the horizon. We are doing our part to help you address all these changes - and avoid costly pitfalls - by offering a special early bird discount rate to help you attend these critical conferences (both of the Conferences are bundled together with a single price). So register now.

It's Printed: 2017 Edition of Romanek's "In-House Essentials Treatise": We are happy to say the 2017 Edition of Romanek's "The In-House Essentials Treatise" is printed & mailed. Here's the 90 pages of our "Detailed Table of Contents" listing the topics – so you can get a sense of the Treatise's practical nature. You will want to order now so you can receive it as soon as possible.

With over 1700 pages, this tome is the definition of being practical. You can return it any time within the first year – and get a full refund if you don't find it of value.

It's Printed: 2017 Edition of Romanek's "Proxy Season Disclosure Treatise": Broc Romanek has wrapped up the 2017 Edition of the definitive guidance on the proxy season – Romanek's "Proxy Season Disclosure Treatise & Reporting Guide" – and it's been printed. With over 1500 pages – spanning 32 chapters – you will need this practical guidance for the challenges ahead. Here's the Detailed Table of Contents listing the topics so you can get a sense of the Treatise's practical nature.

Upcoming Webcasts on TheCorporateCounsel.net: Join us on October 4th for the webcast - "Board Refreshment & Recruitment" - to hear Wilson Sonsini's Lydia Beebe, Davis Polk's Ning Chiu, Spencer Stuart's Julie Daum, South Jersey Industries' Gina Merritt-Epps and Global Governance Consulting's Susan Wolf analyze the latest director recruitment and board evaluation practices.

And join us on October 18th for the webcast - "Virtual-Only Annual Meetings: Nuts & Bolts" - to hear HP's Katie Colendich, Broadridge's Cathy Conlon, Ciber's Tara Dunn, GoPro's Eve Saltman and the Veaco Group's Kris Veaco as they describe the recent trend towards virtual-only annual meetings, including numerous first-hand accounts of the processes necessary to pull them off.

And join us on January 18th for the webcast - "Pat McGurn's Forecast for 2017 Proxy Season" - when Davis Polk's Ning Chiu and Gunster's Bob Lamm join Pat McGurn of ISS and the proxy season expert to recap what transpired during the 2015 proxy season and what to expect for 2016.

And join us on January 24th for the webcast - "Audit Committees in Action: The Latest Developments" - to hear Morgan Lewis' Rani Doyle, Deloitte's Consuelo Hitchcock and Gibson Dunn's Mike Scanlon catch us up on a host of new SEC & PCAOB developments that impact how audit committees operate - and more.

And join us on February 2nd for the webcast - "Conflict Minerals: Tackling Your Next Form SD" - to hear our own Dave Lynn of Morrison & Foerster, Ropes & Gray's Michael Littenberg, Elm Sustainability Partners' Lawrence Heim and Deloitte's Christine Robinson discuss what you should now be considering as you prepare your Form SD for 2016.

There is no cost for these webcasts if you are a member of TheCorporateCounsel.net. If you are not a member, take advantage of our no-risk trial to access the programs. You can sign up for this no-risk trial online, send us an email at info@thecorporatecounsel.net - or call us at 925.685.5111.

Upcoming Webcast on CompensationStandards.com: Join us on January 11th for the webcast - "The Latest Developments: Your Upcoming Proxy Disclosures" - to hear Mark Borges of Compensia, Alan Dye of Hogan Lovells and Section16.net, Dave Lynn of CompensationStandards.com and Morrison & Foerster and Ron Mueller of Gibson Dunn discuss all the latest guidance about how to overhaul your upcoming disclosures in response to pay ratio and say-on-pay - including the latest SEC positions, as well as how to handle the most difficult ongoing issues that many of us face.

No registration is necessary - and there is no cost - for these webcasts for CompensationStandards.com members. If you are not a member, take advantage of our no-risk trial to access the programs. You can sign up online, send us an email at info@compensationstandards.com - or call us at 925.685.5111.

Upcoming Webcasts on DealLawyers.com: Join us on November 15th for the webcast - "This Is It! M&A Nuggets" - to hear Weil Gotshal's Rick Climan, Kaye Scholer's Joel Greenberg and McDermott Will's Wilson Chu impart a whole lot of practical guidance!

And join us on January 19th for the webcast - "Privilege Issues in M&A" - during which Alston & Bird's Lisa Bugni, Bass Berry's Joe Crace and Calfee Halter's (and DealLawyers.com's Editor) John Jenkins discuss how to deal with the attorney-client privilege in M&A transactions - including practical guidance on how to address privilege issues in acquisition agreements and the latest on the applicability of the "common interest" doctrine to M&A communications.

And join us on February 15th for the webcast - "Activist Profiles & Playbooks" - to hear Bruce Goldfarb of Okapi Partners, Tom Johnson of Abernathy MacGregor, Renee Soto of Sotocomm and Damien Park of Hedge Fund Solutions LLC identify who the activists are - want what makes them tick.

No registration is necessary - and there is no cost - for these webcasts for DealLawyers.com members. If you are not a member, take advantage of our no-risk trial to access the programs. You can sign up online, send us an email at info@deallawyers.com - or call us at 925.685.5111.

Upcoming Webcast on Section16.net: Join us on January 31st for the webcast - "Alan Dye on the Latest Section 16 Developments" - to hear Alan Dye of Section16.net and Hogan Lovells discuss the most recent updates on Section 16, including new SEC Staff interpretations and Section 16(b) litigation.


The Wells Fargo Clawback: Innovative - & Wave of the Future?

As noted in this NY Times article, MarketWatch article and Reuters article, CEO John Stumpf and the (now former) head of community banking for Wells Fargo have agreed to forfeit unvested equity awards to the tune of $41 million and $19 million, respectively (the CEO also agreed to forego bonuses for this year, nor draw any salary while an internal investigation is ongoing). These actions by the board more than effectuate what the company's clawback policy would have otherwise required. The look of clawbacks going forward, perhaps? Here's the related Form 8-K that Wells Fargo filed in late September.

Here are five notable items:

- The board was able to impose an "unvested equity" clawback that was much easier than clawing back dollars/stock that had already been delivered into the executive's hands.
- Avoids possible need for the executive to amend past tax returns & file for a credit under Code Section 1341 (which Mike Melbinger has discussed in a few blogs).
- Necessary PR move, as the board was under a lot of pressure to show responsiveness. This came at little immediate cost to the company or the CEO (merely cancelling unvested equity awards for Stumpf). In theory, these forfeited awards could be made up in the future.
- We'll see whether this situation leads to a restatement for the company. So far, news reports suggest it's immaterial to the company's financials. "Restatement" is such a subjective term as the numbers of "formal" restatements - those deemed material enough for an Item 4.02 8-K - are way, way down. In comparison, revision restatements (stealth?) are over 70% of all restatements now.
- Maybe a good lesson for drafting future clawback policies: don't provide for a clawback triggered only upon a restatement...


SEC Proposes Mandating Links to Exhibits

In early September, the SEC issued this proposing release that would require companies to include links to exhibits in most SEC filings. A rule like this would definitely make EDGAR filings more user-friendly. This blog by Davis Polk's Ning Chiu summarizes the "clunky" way that EDGAR users currently navigate their way to a company's exhibits:

Currently, anyone trying to access an exhibit that has been incorporated by reference instead of filed with the document must first review the exhibit index to determine which company filing includes a particular exhibit, and then search through the company's Edgar history to find the exhibit. The SEC believes this process is burdensome, and has now proposed rules that would require a link to each exhibit listed in the exhibit index of any registration statement or report subject to Item 601 of Regulation S-K.

The current format also makes it a little cumbersome to access exhibits that are filed with the document itself - you have to find the exhibit you're looking for in the document, then back out of the document to a page where separate links to each exhibit appear - and then click on the exhibit that you need.

One potential issue for some filers is that exhibits would need to be filed in HTML - since the ASCII format does not support hyperlinks. The SEC raised this issue in the release, but also noted that during 2015 - over 99% of all filings on the forms that would be affected by the proposal were filed in HTML.

We are posting memos in our "Exhibits" Practice Area.


Corp Fin: New CDI on 401(k) Broker Windows

In late September, Corp Fin issued this new "CDI 139.33/126.41" under the Securities Act Section 5/ Form S-8 areas - while withdrawing "CDI 239.16/226.15."

The new CDI deals with whether a company-sponsored 401(k) plan that doesn't have an employer securities fund alternative might still be deemed to be offering securities that require '33 Act registration (when the plan permits contributions through a self-directed "brokerage window"). The CDI concludes that "it depends" - whether the securities need to be registered "depends on the extent of the employer company's involvement." And the CDI goes on to provide more gloss...


Dodd-Frank Repeal: "Financial CHOICE Act" Passes Committee

It seems that ever since Congress passed Dodd-Frank, the House GOP has been trying to repeal major chunks of it. This year is no exception. As noted in this Reuters article, the House Financial Services Committee has passed the "Financial CHOICE Act of 2016" (which I've blogged about several times before - remember my reference to choking a horse; see this MarketWatch article). Here's a new letter from CII opposing the bill...

In mid-September, SEC Chair Mary Jo White threw out the first pitch at a Washington Nationals game! And the US Chamber's Center for Capital Markets Competitiveness has published its latest "Plan to Reform America's Capital Markets"...


House's "Accelerating Access to Capital Act": Penny Stocks Back In Vogue?

Having worked at the SEC during the heyday of penny stock fraud, Broc can't help but chuckle at the notion of Congress trying to ramp those terrible deals back up in the just passed "Accelerating Access to Capital Act" (HR 2357), which incorporates the "Micro Offering Safe Harbor Act" and the "Private Placement Improvement Act." Of course, not every penny stock offering was fraudulent - but plenty were back then. President Obama has threatened to veto this bill if the Senate ever passed it. Here's the intro from this WSJ article:

Penny-stock firms, which regulators warn are more susceptible to manipulation by swindlers and company insiders, would be granted access to a regulatory shortcut for selling stock under legislation approved Thursday by the House of Representatives. The House voted 236-178, largely along party lines, to approve legislation that would allow microcap companies to tap a method of issuing shares that typically involves less oversight by regulators. Republicans who supported the legislation said it would allow smaller companies to use a fundraising tool that has so far been restricted to bigger companies. "Extending these cost-saving provisions to smaller companies that large companies are currently able to enjoy is absolutely critical, and makes a difference for in their ability to issue additional offerings, expand their business and create more jobs," said Rep. Ann Wagner (R., Mo.), who sponsored the legislation. Only one Republican opposed it.

The bill, which doesn't have a Senate sponsor, would allow microcap companies, including those that don't meet exchange-listing standards, to offer stock on a rolling basis without having each sale approved by the Securities and Exchange Commission. The SEC defines microcaps as companies whose shares outstanding are valued at less than $300 million.

Meanwhile, here's a letter from CII about the proxy advisors bill...


House Passes Private Equity Deregulation Bill

Here's news from the intro of this WSJ article:

House lawmakers on Friday approved a bill to ease regulatory requirements on private-equity managers, legislation that the White House has threatened to veto. The House voted 261 to 145 to advance the bill sponsored by Rep. Robert Hurt (R., Va.), largely along party lines. The measure exempts private-equity firms from having to provide regulators with certain information, such as the debt levels of their portfolio companies and the countries where investments were made.

The legislation, which lacks a companion bill in the Senate and is opposed by the Obama administration, faces long odds of becoming law. Its likelihood of enactment hangs on the possibility of its provisions being added to a must-pass spending bill Congress often advances at the end of the year. The bill comes after years of failed attempts by the industry to exempt most managers of private-equity funds from having to register with the Securities and Exchange Commission. Instead, Friday's legislation aims to roll back regulatory provisions that supporters say are unduly burdensome and crimp funds' investment in companies that create jobs. Thirty-five Democrats supported the measure. Managers of private-equity funds pool their money alongside institutional investors such as pension funds and university endowments to buy equity stakes in companies or pieces of them.

Before Friday's vote, the House agreed to modify some provisions that opponents found objectionable, approving by voice vote an amendment sponsored by Rep. Bill Foster, an Illinois Democrat. The amendment has the effect of preserving investor-protection rules set up in the wake of the Bernard Madoff Ponzi scheme. Those rules require that funds undergo a third-party audit or a surprise SEC examination to verify they actually own the assets they say they do.


Civil Penalties: SEC Increases Max Payable for Securities Law Violations

Here's something that Alan Dye blogged on his "Section16.net Blog":

The SEC has adopted an interim final rule to adjust for inflation the maximum civil money penalties payable for violations of the federal securities laws. The adjustments were mandated by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

The adjustments most pertinent to Section 16(a) compliance are those made to the monetary penalties the SEC may impose in cease and desist proceedings brought under Section 20C of the Exchange Act, since most enforcement actions that are based solely on Section 16(a) violations are brought under Section 20C. Section 21B(a) of the Exchange Act permits the SEC to impose a civil money penalty in a cease and desist proceeding brought under Section 20C if the SEC finds that the respondent is violating or has violated a provision of the Exchange Act (including Section 16(a)) or is or was a cause of such a violation. Section 21B(b) prescribes three tiers of penalties, depending on the nature of the violation, and establishes a maximum penalty for each tier. Each maximum penalty is subject to adjustment upward for inflation.

Here are the three tiers and the new maximum penalty amounts. The maximum penalties prior to the recent adjustments are set forth in parentheses:

- First tier is available for any type of violation, and permits a fine of up to$8,908 ($7,500) per violation for a natural person and $89,078 ($80,000) per violation for any other person.
- Second tier is available only for violations involving fraud, deceit, manipulation, or deliberate disregard of a regulatory requirement, and permits a fine of up to $89,078 ($80,000) per violation for a natural person and $445,390 ($400,000) per violation for any other person.
- Third tier is available only if the requirements for the second tier are met and the violation resulted in substantial losses or a significant risk of substantial losses to other persons. Fines for third tier violations can range up to $178,156 ($160,000) per violation for a natural person and $890,780 ($775,000) per violation for any other person.


The "Other" Reg Flex Agenda: Piwowar Tries to Make It "Real"

As Broc has blogged many times (here's one), the SEC's Reg Flex Agendas tend to be "aspirational" - and experience bears that out as the SEC often misses its "target" deadlines. Broc loathes blogging when a new Reg Flex Agenda comes out - because some folks read too much into it. In fact, he's only blogging about it now to try to stave off more misinformation (until just the last few years, the Reg Flex Agenda was completely ignored by everyone)!

In mid-September, the SEC issued this Reg Flex Agenda, which is a different type of one than the ones that folks normally pay attention to - the new one is under Section 610 of the Regulatory Flexibility Act & requires federal agencies "to review its rules that have a significant economic impact upon a substantial number of small entities within ten years of the publication of such rules as final rules." The other type of Reg Flex Agenda is like this one that foretells possible new rulemaking. One is forward-looking/future action; the other is to review old rules already on the books to see if they are still "state of the art."

Anyway, in tandem with this new Reg Flex Agenda, SEC Commissioner Piwowar issued this statement - begging people to comment on the newly posted Reg Flex Agenda (particularly Reg NMS). As Piwowar notes in his statement: "the annual Rule List has prompted, on average, only one comment." It's likely that Piwowar asked that Reg NMS be included in the list - the inclusion of that item doesn't necessarily mean that Chair White thinks it should be. Because the list has little meaning - because it's aspirational...

Broc leaves you with three thoughts:

1. The SEC Chair primarily sets the agenda for the agency's rulemaking (see the transcript from our webcast: "How the SEC Really Works"). For the most part, it doesn't matter how many people seek a rulemaking change. Remember that the political contribution rulemaking petition has garnered over 1 million comments in support - and the SEC hasn't proposed anything there.

2. This year's Reg Flex Agenda is even more aspirational than normal - because there is a high likelihood that the SEC Chair (and some of the Division Directors) will be gone soon after the upcoming Presidential election. A new SEC Chair will then eventually be appointed - and that Chair will be driving the bus in 2017.

3. Our community has more than enough things to comment on these days. The pace of change is breathtaking. We don't need to be commenting on topics that aren't even proposed yet...


The "Lookback" Reg Flex Agenda: What's On The List?

Here are a few notables from the newly posted Reg Flex Agenda:

- Securities offering reform
- Section 16, including Item 405 disclosures
- Accelerated filer definition & deadlines
- XBRL
- IFRS
- Penny stock
- Shell companies
- Deregistration under Section 12(d)


Non-GAAP: Here Comes SEC's Enforcement!

We recently learned that some companies have been contacted by the SEC's Division of Enforcement concerning their non-GAAP disclosure practices.  Enforcement's interest appears to focus on Item 10(e) of Regulation S-K's requirement that companies disclosing a non-GAAP measure in SEC filings and earnings releases must also present the most directly comparable GAAP measure with equal or greater prominence.

The disclosures being called into question were made in earnings releases - and predate the issuance of Corp Fin's updated CDIs in May. Enforcement's interest does not appear to have been prompted by the comment letter process, but instead seems to be the result of its own initiative. Could we be looking at a new sweep?

Although the disclosures that have been questioned were made within the last year, the companies under scrutiny are being asked to provide relevant documents covering multiple years. They are also being asked to identify any other instances of Reg G violations beyond those cited by Enforcement.

Also see the July-August issue of "The Corporate Counsel," which also delves into these broad Enforcement requests from the SEC in the non-GAAP area...


Non-GAAP: Many Quickly Moving GAAP Numbers Up (But 20% Still Don't)

Here's an excerpt from this Audit Analytics blog (also see these memos posted in our "Non-GAAP Measures" Practice Area):

According to Audit Analytics' research published in a recent WSJ article, however, there is some evidence of a changing tide; in the most recent quarterly reports, more than 80% of the SP500 companies reported GAAP results first, compared to 52% in the prior quarter.

Nevertheless, only a handful of companies have so far stated their intent to drop non-GAAP numbers completely. The vast majority of companies will still present non-GAAP results, albeit presented after comparable GAAP numbers, with better labeling and clearer descriptions.

But let's take this line of thought a bit further. If custom metrics are so important to investors, then, analogous to GAAP results, it should be important to investors when non-GAAP metrics turn out to be misstated. What would happen if non-GAAP numbers were to be revised - for example, to correct an error?

We have seen a few instances where this question would be very relevant. In a handful of cases where non-GAAP numbers were intentionally manipulated, we've seen an array of related negative events (including management turnover and SEC investigation), which makes these cases hard to overlook. So if errors are found in non-GAAP metrics, how should investors be notified? Non-GAAP numbers are not audited, there is no Item 4.02 requirement for them, and there are rarely any SOX 302 or 404 implications.

A few recent examples, provided below, provide some insight into how companies may disclose error corrections that affected only the non-GAAP presentation (i.e., comparable GAAP results were not revised). In both cases, the correction was discussed in a footnote to the non-GAAP reconciling tables.

Also check out this MarketWatch article which notes that the SEC's Enforcement Division & DOJ brought a parallel case against a financial professional at a REIT for using non-GAAP metrics fraudulently...


Cybersecurity Disclosures: Not Happening Much in SEC Filings

Here's an excerpt from this "D&O Diary Blog" about how few public companies are disclosing cybersecurity and data breach incidents in their SEC filings (which could be a concern for investors - and for D&O underwriters);

According to a September 19, 2016 Wall Street Journal article entitled "Corporate Judgment Call: When to Disclose You've Been Hacked," nothwithstanding the long-standing SEC disclosure guidelines, companies are being hacked more frequently but are not disclosing these incidents in their periodic reports to the SEC. The article cites a recent Audit Analytics report, in which the firm reviewed the filings of nearly 9,000 reporting companies during the period January 2010 to the present. The report found that only 95 of these companies had informed the SEC of a data breach. However, according to the Privacy Rights Clearinghouse, the number of data breaches during that period experienced by all U.S. businesses - including both public and private companies - totaled 2,642.

The most important consideration accounting for this apparent discrepancy is the question of "materiality." If the company believes that the incident or incidents it experienced are not "material" within relevant reporting obligation standards, then, many companies apparently are concluding that they have no obligation to report the incident.

Significantly, while only a small number of companies have reported cyber incidents in their periodic reports, a greater number are reporting data breaches and other incidents to other regulators. The Journal article cites the Audit Analytics report as stating that about 300 publicly traded U.S. companies have reported cybersecurity incidents to a state regulator or directly to affected consumers over the past six years.

Obviously, whether or not any potentially reportable item is "material" and therefore subject to disclosure is a judgment call of a type that corporate officials have long been called upon to make. The concern is that these types of judgment calls can be subject to hindsight scrutiny. In that regard, it is probably worth noting that to date the SEC has not yet brought a regulatory enforcement action against a company that failed to disclose a cyberincident - but, the Journal article notes, SEC officials "have not ruled out doing so."


Survey Results: Proxy Mailing Practices

Here's the survey results from our survey about proxy mailing practices:

1. For our proxy materials, we file them:
- On same day we commence mailing of full sets - 76%
- At least one day prior to commencing mailing of full sets - 18%
- We do something different - 7%
- Not sure - 0%

2. We use notice & access (aka e-proxy):
- Yes - 79%
- No - 21%
- Not sure - 0%

3. We print this number of proxy materials to mail:
- Less that 25,000 - 66%
- 25,001 to 75,000 - 18%
- 75,001 to 150,000 - 10%
- More than 150,000 - 3%
- Not sure - 3%

Please take a moment to participate anonymously in this "Quick Survey on Management Representation Letters" - and this "Board Minutes & Auditors."


Whistleblowers: OSHA's Interim Guidance

Here's a note from Hunton & Williams' Scott Kimpel about interim OSHA guidance that was issued in August:

Through a peculiar quirk of Sarbanes-Oxley, OSHA administers Section 806, which provides whistleblower protection for certain parties who report (1) federal mail, wire, bank, or securities fraud, (2) federal law relating to fraud against shareholders, and (3) any rule or regulation of the SEC. The interim OSHA guidance lays out various confidentiality and related provisions in employee settlement agreements that OSHA deems problematic.

Many of the points are derived from the three SEC enforcement cases brought over the past year on this issue. But the OSHA guidance goes a step further and deems problematic any provision that requires a complainant to waive a government whistleblower award. There has been some uncertainty as to the enforceability of such waiver provisions, and the SEC enforcement cases to date do not address the issue directly. While the OSHA guidance is not binding on the SEC, it is still instructive to parties seeking to comply with the SEC whistleblower rules in the absence of any formal guidance from the agency or its staff. Of course, if parties find themselves in a situation in which OSHA has the responsibility to review a settlement agreement, as detailed in the OSHA guidance, we fully expect each of its criteria to apply.


Auditor Independence: SEC Settles 1st Violation Caused By Personal Relationships

Here's the intro from this Cooley blog:

In two orders made public today, the SEC announced settled charges against EY and individual EY auditors with regard to alleged violations of the auditor independence rules as a result of "close personal relationships" with officers at audit clients. According to the press release, these "are the first SEC enforcement actions for auditor independence failures due to close personal relationships between auditors and client personnel."

EY and the other auditors charged consented to the SEC's order without admitting or denying the findings and paid penalties. EY was also censured,and the individuals were suspended from practice before the SEC. These cases are of interest to issuers as well as auditors because the auditors' violations caused the companies involved to violate Section 13(a) of the Exchange Act and Rule 13a-1, which require public companies to file Forms 10-K with financial statements that have been audited by independent accountants.


Cybersecurity: New York Proposes 1st State Legal Framework

Here's an excerpt from this Morgan Lewis article (we're posting memos in our "Cybersecurity" Practice Area):

The New York Department of Financial Services (NYDFS) has proposed cybersecurity rules that would require banks, insurers, and other NYDFS-regulated financial services companies to adhere to stringent cybersecurity requirements mandating firms to test their systems, establish plans to respond to cybersecurity events, and annually certify compliance with the cybersecurity requirements, among other mandates. Comments on the proposed rules are due in 45 days.


Life as a Corporate Lawyer: Brink Dickerson

Broc had a lot of fun taping this 36-minute podcast with Brink Dickerson of Troutman Sanders. He's still chuckling over Brink's response to his query about "least favorite tasks" (starting at the 23:45 mark). We highly encourage you to listen to these podcasts when you take a walk, commute to work, etc. Brink tackles:

1. Where did you grow up?
2. I understand that you may be the only securities lawyer without a customary qualification?
3. How did you end up going to law school?
4. Although you are in Atlanta now, you started practicing in Chicago. How did that come about?
5. What early experiences shaped how you practice law?
6. Were there any particular experiences that impacted how your practice evolved?
7. I understand that you considered joining the SEC at one point. Tell me about that.
8. How do you prepare for a speaking gig?
9. What types of work tasks are your favorite to work on?
10. Least favorite?

This podcast is also posted as part of our "Big Legal Minds" podcast series. Remember that these podcasts are also available on iTunes or Google Play (use the "My Podcasts" app on your iPhone and search for "Big Legal Minds"; you can subscribe to the feed so that any new podcast automatically downloads...


Broc & John: "Blues Brothers Don't Have Nothing on Us"

John & Broc had a lot of fun taping their first "news-like" podcast. This 9-minute podcast is about director compensation & Smithsonian museums - the new African-American museum that just opening (it's already "sold out" for a few months)! We highly encourage you to listen to these podcasts when you take a walk, commute to work, etc. And as we tape more of these, it's inevitable we'll figure out how to be more entertaining...

This podcast is also posted as part of our "Big Legal Minds" podcast series. Remember that these podcasts are also available on iTunes or Google Play (use the "My Podcasts" app on your iPhone and search for "Big Legal Minds"; you can subscribe to the feed so that any new podcast automatically downloads...


Our New "Director Independence Handbook"

Spanking brand new. By popular demand, this comprehensive "Director Independence Handbook" covers the entire terrain, from determinations to handling under proxy advisor definitions. This one is a real gem - 94 pages of practical guidance - and its posted in our "Director Independence" Practice Area.


Cap'n Cashbags: Nepotism Reigns

In this 45-second video, Cap'n Cashbags - a CEO - hires three sons who probably aren't qualified...


More on "The Mentor Blog"

We continue to post new items daily on our blog - "The Mentor Blog" - for TheCorporateCounsel.net members. Members can sign up to get that blog pushed out to them via email whenever there is a new entry by simply inputting their email address on the left side of that blog. Here are some of the latest entries:

- Issuing Shares Via Blockchain: Delaware Poised to Act
- Describing an Officer's Duties 101
- Data Privacy: More Federal Agencies Join Enforcement Bandwagon
- Stats: Controlled Companies
- How Law Firms Should Strengthen Their Cybersecurity


People: Who's Doing What & Where

SEC's Filing Fees: Going Up 15% for Fiscal Year 2017!

In early September, the SEC issued this fee advisory that sets the filing fee rates for registration statements for 2017. Right now, the filing fee rate for Securities Act registration statements is $100.70 per million (the same rate applies under Sections 13(e) and 14(g)). Under the SEC's new order, this rate will go up to $115.90 per million, a 15% hike. This offsets last year's 13% drop.

As noted in the SEC's order, the new fees will go into effect on October 1st like the last four years (as mandated by Dodd-Frank) - which is a departure from years before that when the new rate didn't become effective until five days after the date of enactment of the SEC's appropriation for the new year - which often was delayed well beyond the October 1st start of the government's fiscal year as Congress & the President battled over the government's budget.


Conference Calendar


What's New on Our Websites

Among other new additions, during the last month we have:


Your Input, Please

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