August 25, 2017

SEC’s Filing Fees: Going Up 7% for Fiscal Year 2018!

Yesterday, the SEC issued this fee advisory that sets the filing fee rates for registration statements for 2018. Right now, the filing fee rate for Securities Act registration statements is $115.90 per million (the same rate applies under Sections 13(e) and 14(g)). Under the SEC’s new order, this rate will rise to $124.50 per million, a 7.4% increase. It could be worse – the current filing fee rate represented a 15% bump over fiscal 2016.

As noted in the SEC’s order, the new fees will go into effect on October 1st like the last five years (as mandated by Dodd-Frank) – which is a departure from years before that when the new rate didn’t become effective until five days after the date of enactment of the SEC’s appropriation for the new year – which often was delayed well beyond the October 1st start of the government’s fiscal year as Congress and the President battled over the government’s budget.

Revenue Recognition: Impact of New Standard on S-3 Financials

This Sidley memo addresses the potential need for some Form S-3 filers to retrospectively revise previously issued financials due to the adoption of the new GAAP revenue recognition standard. The memo addresses the impact of the full retrospective transition method on financial statement requirements in existing and newly filed S-3s, as well as how the timing of the new standard’s adoption could change that result.

Forward-Looking Statements: Does “We’re on Track” Qualify?

Over on “The Mentor Blog,” I recently blogged about a new case holding that you can’t insulate a non-forward looking statement by mixing it into a paragraph of forward-looking statements. Now, here comes this blog from Lyle Roberts about a recent case that illustrates how hard it can be to sort out forward-looking from non-forward looking statements in the first place.

At issue in the case was a remark that makes every securities lawyer cringe whenever it pops out of an executive’s mouth – a statement to the effect that a company is “on track” to meet performance expectations. Courts have reached different conclusions about whether or not this language is protected by the PSLRA safe harbor – and the blog notes a recent decision in which a California federal court said that it didn’t make the cut.

This excerpt summarizes the court’s opinion:

In Bielousov v. GoPro, (N.D. Cal. July 26, 2017), the court considered whether the CFO’s statement “We believe we’re still on track to make [GoPro’s financial guidance] as well” was a forward-looking statement covered by the PSLRA’s safe harbor. The court held that because the CFO included the phrase “we believe” in his statement, it was a statement of present opinion about “his and GoPro’s existing state of mind.” Accordingly, the PSLRA’s safe harbor did not apply and the statement should be examined under the Omnicare standard.

John Jenkins