May 28, 2008

Now Available: May-June Issue of The Corporate Counsel

We just put the finishing touches and mailed the May-June ’08 issue of The Corporate Counsel, which includes analysis of:

– More on Obtaining Staff Guidance
– Amended Rule 144—Impact on Pledgees and Donees
– More on the New 8-K CDIs
– Parsing the Integration Safe Harbors
– Corp Fin’s Mini Re-Org
– S-3 Eligibility Waivers—8-K Latitude?
– Staff Says No Non-GAAP Financial Statements
– Use of Company Stock to Make Matching Contribution to 401(k) Plan—NYSE Notice and Shareholder Approval Requirements
– 8-K Reporting of JPMorgan Chase’s CEO Option/SAR Grant
– Bebchuk Status Report

If you are not a subscriber to The Corporate Counsel, try a no-risk trial today. If you still need to renew your subscription for this year, do so today so you won’t miss this critical guidance.

Using SOX 302 Certifications to Plead Scienter

Since the enactment of the Sarbanes-Oxley Act, courts have been split on the extent to which CEO/CFO certifications may be used by private plaintiffs to satisfy the requirement for pleading scienter under Section 10(b) and Rule 10b-5.

In this podcast, Howard Suskin and Jennifer Lawson of Jenner & Block provide insight into the use of SOX Section 302 certifications to plead scienter, including:

– How are Section 302 certifications being used by plaintiff’s lawyers in lawsuits?
– What are the courts’ reactions so far? Are they drawing an inference of scienter?
– What do you advise companies to do now to minimize the risk of scienter being found?

You can also access a related memo on this topic in our “Securities Litigation” Practice Area.

IFRS 101: Educating the New Class of Accountants

If International Financial Reporting Standards (IFRS) is really going to come to pass for US issuers in the next five years or so, then some radical changes will need to be made to our US GAAP-based system – and soon. One of the most important areas where this change needs to occur is in the accounting departments of our colleges and universities, on the theory that accounting majors should not be wasting their time learning the intricacies of US GAAP, if what they will have to apply in four years is IFRS as established by the IASB.

This article notes that the Big Four accounting firms are moving forward with efforts to help develop IFRS-focused curricula and to provide other resources that may be used by academia. These efforts are encouraging, but perhaps may not be enough to accomplish the real sea change that is needed to make IFRS a reality on such a relatively short timetable. Ultimately, perhaps the ideal would be for graduating students to have a better handle on IFRS than the partners that they go to work for at accounting firms!

The SEC announced that it signed protocols with financial regulators in Belgium, Bulgaria, Norway and Portugal to share information on the application of IFRS. These protocols, which are based on a model protocol developed between the SEC and the Committee of European Securities Regulators, provide for the confidential exchange of issuer-specific information that will be relevant toward implementing IFRS. The SEC has a similar arrangement with the UK Financial Reporting Council and the UK Financial Services Authority.

-Dave Lynn