July 20, 2004

JCEB Notes with SEC Posted!

One challenging aspect of practicing securities law is that there are so many different sources of SEC guidance. The most authoritative are those adopted by Commissioners, including rules and regulations as well as interpretive and adopting releases. Then, there are nearly a half-dozen sources of informal guidance from the SEC Staff, such as no-action letters, staff legal bulletins, FAQs and the Telephone Interpretation Manual.

Probably the least authoritative source of guidance are those informal conversations that each of us have with the SEC Staff, including those conducted in a group. Each Spring, the ABA’s Joint Committee on Employee Benefits (known as the “JCEB”) meets with a number of federal agencies in an attempt to obtain interpretive guidance on various issues, including a meeting with Corp Fin Staff. These meetings can be quite productive and have provided great insight on the latest Corp Fin thinking on a variety of insider-compliance issues.

We are excited to be able to post reports – going back to 1997 – of the JCEB meetings with the SEC staff, with a big thanks to Gloria Nusbacher of Hughes Hubbard & Reed LLP, who acted as Reporter for such meetings. This notes are posted in “Practice Areas,” as well as our home page.

Of course, these reports come with a number of disclaimers and should be read with those in mind ( the responses reflect the unofficial, individual views of the SEC Staff as of the time of the discussion, and do not necessarily represent the position of the SEC or other Staff members – and the views of the SEC Staff change over time and you should not necessarily rely on the positions reflected in these reports.)

NASD Issues Shelf Offering Proposal

The NASD has proposed rule changes to amend the its rules regarding the filing requirements and regulation of shelf offerings by investment bankers. This is the first activity in this area since the September 2001 proposal in NASD Notice to Members 01-59. The NASD states that significant revisions have been made since that proposal. It is expected that the SEC will put these proposed rule changes out for public comment.

Although the rules directly affect NASD members, companies have an interest to insure that the rules would not delay shelf offerings and their ability to take advantage of market opportunities.

Know The Cost Of Golden Parachute Gross-Up Provisions

As a nice follow-up to the NY Times article I blogged about yesterday, we have posted a practice pointer by Linda Griffey of O’Melveny & Myers to about “Know The Cost Of Golden Parachute Gross-Up Provisions.”