TheCorporateCounsel.net

In this third 30-minute podcast tribute to his friend & “Radio Show” co-host Marty Dunn, who died on June 15, 2020, Dave Lynn welcomes Marty’s colleagues from Corp Fin, private practice and the conference circuit to share their memories of Marty. Highlights include:

– The art of being subtle

– Marty’s fondness for the ‘Original Ledos’

– Marty’s humble leadership

– Crazy, cool new projects Marty couldn’t resist

– Work on the 2007 Reg D Proposing Release as Marty prepared to leave the SEC for private practice

– Marty’s reaction when seeing himself on the “big screen” at conferences

– Marty’s personable, friendly nature

Secure FTP for Supplemental Materials & Rule 83 CTRs

Earlier this week, in response to continued health and safety concerns from Covid-19, Corp Fin issued a statement providing a temporary secure file transfer process for submission of supplemental materials pursuant to Securities Act Rule 418 and Exchange Act Rule 12b-4 and information subject to Rule 83 confidential treatment requests.

Supplemental Materials: Securities Act Rule 418 and Exchange Act Rule 12b-4 permit the Commission or its staff to request certain supplemental materials. The secure file transfer process allows for electronic submission to the Division of supplemental materials submitted pursuant to Rules 418 and 12b-4 during this temporary accommodation, including supplemental materials subject to a Rule 83 confidential treatment request.

Rule 83 Confidential Treatment Requests: The Commission’s Rule 83 provides a procedure by which persons submitting information may request confidential treatment for portions of that information where no other confidential treatment process applies. Information subject to a Rule 83 confidential treatment request must be, to the extent practicable, submitted separately from information for which confidential treatment is not requested, appropriately marked as confidential, and accompanied by a separate written request in paper format for confidential treatment. Although Rule 83 requires that confidential treatment requests be submitted in paper format, the rule also permits the designation of alternative procedures. The secure file transfer process allows for electronic submission to the Division of Rule 83 requests for confidential treatment together with the confidential information during this temporary accommodation. A copy of the request for confidential treatment (but not the confidential information itself) must also be submitted to the Commission’s Office of FOIA Services.

Anyone wishing to submit information using FTP should contact the staff member associated with the matter to request the initiation of FTP. The statement also advises not to send supplemental information or Rule 83 CTRs through email.  Supplemental information and information subject to Rule 83 CTR can still be sent to the SEC mailroom, however, the statement says there will be delays in processing the documents.

For more information to help navigate the rules relating to confidential treatment requests, check out our “Confidential Treatment Requests” Handbook and our checklists – “Confidential Treatment Requests – Basics” and “Confidential Treatments Requests – Drafting” – that are available to members on TheCorporateCounsel.net.

Mid-Year 2020 SEC Enforcement Update

This Gibson Dunn memo reviews SEC enforcement activity during the first half of 2020.  The memo includes discussion of the SEC’s Enforcement Division priorities in light of the Covid-19 pandemic as well as several enforcement actions against parties that allegedly sought to take advantage of the pandemic.  In terms of public company cases, here’s an excerpt about financial reporting enforcement actions:

In February, the SEC instituted a settled action against a financial institution for allegedly misleading representations concerning the success of its cross-selling business strategy. According to the settled order, the cross-sell metric reflected accounts and services that were unused and unauthorized by customers, and that had been opened through sales practices inconsistent with the company’s disclosure of a needs-based selling model. Without admitting or denying the allegations, the firm agreed to cease and desist from future violations and to pay a civil penalty of $500 million for distribution to investors. The settlement was part of a broader resolution with the Department of Justice.

Also in February, the SEC filed an action against a parent company, two of its former executives, and its energy subsidiary for allegedly making misleading statements about the subsidiary’s nuclear power plant expansion. According to the complaint, which was filed in federal court in South Carolina, the defendants represented that the company was on track in its plan to build two plants and receive nearly $1 billion in tax credits, even though they knew the company was behind schedule and the plan was eventually abandoned.

– Lynn Jokela