February 28, 2005

How to File a Form 12b-25 and What to Watch Out For…

As we recently wrote about – in great detail – in the Jan-Feb issue of The Corporate Counsel, understanding Form 12b-25 in advance of this year’s Form 10-K filing deadline is particularly recommended because of the uncertainty many companies are facing with respect to their ability to get their internal control reports finalized and filed by the Form 10-K due date. This is likely to result in an increased number of Form 12b-25 filings and more detailed disclosure than what is typically found in those filings.

Bearing that in mind, it’s probably a good time to understand what is involved with a Form 12b-25 filing – particularly since the SEC Enforcement Division just brought a case against FFP Marketing (and the two employees responsible for preparing the 12b-25 filing) for deficient 12b-25 disclosure. If the independent examiner’s report in the Spiegel case didn’t drive the point home that Form 12b-25s are disclosure documents, this case certainly does. Learn more in this interview with Tom Hanley on SEC Enforcement’s Interest in Form 12b-25 Filings.

Siebel’s 1st Amendment Fight Against Reg FD

Today, is carrying this article about Siebel Systems’ upcoming court fight – on March 15 – during which the company will argue that the First Amendment’s right to free speech protects its CFO and an investor relations officer against a SEC complaint that alleges the company—for the second time—violated Regulation FD. This case is the first contested action ever brought by the SEC seeking to enforce Reg FD; the other five have settled.

IPO Litigation Opinion Now Available

On in the “Securities Litigation” Practice Area, we have posted the opinion and order of the District Court regarding In re Initial Public Offering Securities Litigation, which grants preliminary approval of the proposed settlement of plaintiffs with issuers and individual defendants in 298 coordinated cases involving IPOs of technology stocks, contingent on certain modifications.

The proposed settlement was opposed by the underwriter defendants on various grounds. The court conditioned its preliminary approval on modification of the proposed bar order – which the court found was broader than authorized under the Private Securities Litigation Reform Act. The opinion has a discussion of various PSLRA provisions, including proportionate liability (pp. 36-38); settlement discharge (pp. 38-43); and judgment reduction (pp. 43-46). Thanks to Mike Holliday for tracking this down!