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It doesn’t appear that any more certainty on the finer points of the 703 table can be derived from the staff’s Tuesday meeting with the ABA’s JCEB – as many of the open issues are rather complicated and the staff likely wants to ensure its interps are appropriate before they are issued in “final.” My guess is that the staff will put out written guidance on these open issues, but will not be able to do so before Monday’s 10-Q deadline for accelerated filers.

The issues that appear to be soundly resolved are the ones noted in my Tuesday blog, such as net withholding/exercises of options don’t need to be included in the table – but stock-for-stock exchanges should be included.

Beyond that, bear in mind that the staff’s general view is that the table is supposed to provide a broad and comprehensive picture of the repurchase activity going on within a company (i.e. more inclusive than what Rule 10b-18 covers). So it might be better to err on the conservative side until written guidance is available.

Once firm guidance is available, the question then is whether you need to amend this 10-Q if the numbers in the table would have been different under the guidance (note that it’s only a 3-month table, so there would be no natural opportunity to correct what you included in the last 10-Q). My bet is that, in most cases, there will be an argument that the changes are not material – but that argument likely would be bolstered if you provide too much disclosure now, rather than too little.

Our Spring Cleaning

I often get asked why there is no search engine on TheCorporateCounsel.net. The reason is that I was never satisfied with the quality of results from the engines we have tried.

However, to facilitate your ability to find useful information on the site, I have significantly increased the number of “Practice Areas” on the site – with over 100 of them now! I believe this indexing approach is the best search solution for the site. Our Practice Areas can be accessed by hitting the button with that name at the top of every page on the site.

Scrushy’s Attempt to Render SOX Unconstitutional

As I blogged a while back, HealthSouth’s former CEO, Richard Scrushy argues that Sarbanes-Oxley – particularly Section 906 – is unconstitutional in this recent motion to dismiss criminal charges. It is hard to tell what the Judge’s response is, due to many of the Judge’s orders being sealed (see the N.D. Alabama web page for notable cases).