July 8, 2009

Nasdaq Speaks ’09: Latest Developments and Interpretations

Tune in tomorrow for the webcast – “Nasdaq Speaks ’09: Latest Developments and Interpretations” – to hear the following experts cover all the latest on the Nasdaq (please print off these “Course Materials” in advance):

– Mike Emen, Senior Vice President, Nasdaq’s Listing Qualifications Department
– Arnold Golub, Vice President, Nasdaq’s Office of General Counsel
– David Compton, Director, Nasdaq’s Listing Qualifications Department
– Randy Genau, Director, Nasdaq’s Listing Qualifications Department
– Suzanne Rothwell, Counsel, Skadden, Arps, Slate, Meagher & Flom LLP

Here are other upcoming webcasts:

– “Venture Capital: Facing a Changing World” (9/15)
– “How to Prepare for a Proxy Access World” (9/17)

Act Now: Try a ‘Rest of 09 for Half-Price’ no-risk trial now to catch these critical webcasts and more.

More Edgar Problems: The Need for Transparency

A few months ago, I blogged about how periodic Edgar outages and how the SEC does a poor job of communicating about them. Unfortunately, I can report that “it’s business as usual” and that outages continue and that the SEC not only doesn’t make the filing community aware of them, it might be said that they are “buried.”

Last Thursday, I understand that Edgar was out for more than an hour in the late afternoon and some fee-bearing filings were tied up starting well before the 5:30 pm eastern same-day filing deadline. In many cases, the SEC’s system did not return an Accession Number (ie. an acknowledging receipt) and the SEC’s Filer Support staff was unable to confirm whether filings had been received. During this time, the SEC’s “Latest Filings Received and Processed” page showed that no filings had been received/disseminated starting at 5:45 pm.

What if a company discloses material information on a filing and it doesn’t show up on the SEC’s site? But even beyond that type of concern, I believe that the SEC has a duty to inform the filing community if it has an outage. There has to be some way that they can do that so that everyone doesn’t stay in the dark…

Here is a query for you: Do you know what the implication would be if an issuer filed pursuant to Rule 462(b) where the issuer can begin selling securities immediately upon acceptance of the filing (even if the filing is made after 5:30 pm)? Such an example is Submission Type S-3 MEF. Similarly, when automatic shelf-registration statements of securities of well-known seasoned issuers are submitted under Rule 462(e), they often plan to start selling securities immediately (though they are limited to pre-17:30 filings in order to go effective the same day).

If the SEC system doesn’t actually accept their filings – as a result of EDGAR system issues – must they wait to begin selling securities….and perhaps miss a window of opportunity? Let me know what you think.

Survey Results: To Whom Does Your General Counsel Report?

Below are some interesting results from a recent poll on this blog – the respondents indicated that their general counsel reports to:

– CEO only – 72%
– CEO and other operational officers – 6%
– CEO and board member – 10%
– Other operational officer(s) but not CEO – 10%
– Board member(s) but not CEO – 2%

– Broc Romanek