April 30, 2021

Enforcement: SEC Targets 12b-25 Disclosure Deficiencies

Yesterday, the SEC announced enforcement proceedings against eight companies for alleged disclosure deficiencies in Form 12b-25 filings. Here’s an excerpt from the SEC’s press release:

Public companies are required to file the SEC’s Form 12b-25 “Notification of Late Filing,” commonly known as “Form NT,” when “not timely” filing a Form 10-Q or Form 10-K and seeking additional days to file their reports. Companies must disclose on the Form NT why their quarterly or annual report could not be filed on time, as well as any anticipated, significant changes in results of operations from the corresponding period for the last fiscal year.

The SEC orders find that each of the companies announced restatements or corrections to financial reporting within 4-14 days of their Form NT filings despite failing to provide details disclosing that anticipated restatements or corrections were among the principal reasons for their late filings. The orders also find that the companies failed to disclose on Form NT, as required, that management anticipated a significant change in quarterly income or revenue.

Without admitting or denying the SEC’s allegations, each company consented to C&D enjoining them from future violations of Section 13(a) of the Exchange Act & Rule 12b-25, and agreed to pay penalties ranging from $25,000 to $50,000.

It’s been a while, but these aren’t the first enforcement actions targeting 12b-25 filings. In 2003, the SEC brought an enforcement action against Spiegel for alleged shenanigans surrounding a Form 12b-25 filing, and it subsequently brought a separate action against the company’s former audit committee chair arising out of the same allegations. In 2005, the SEC brought an enforcement action against FFP Marketing (and the two employees responsible for preparing the filing) for deficient 12b-25 disclosure.

In the SEC’s press release, acting Enforcement Director Melissa Hodgman said that these actions were the latest in which the SEC used data analytics to identify difficult to detect disclosure issues. That’s something we blogged about last fall, when the SEC announced the first actions under its “EPS Initiative.”

Insider Trading Policies: Who Should be Subject to Your Blackout Period?

One of the questions that members frequently ask is which employees should be subject to a quarterly blackout period under an insider trading policies. There’s no “one size fits all” answer to that question, but this excerpt from WilmerHale’s new 2021 IPO Report (p. 22) provides a good summary of the reasons why some companies might answer this question differently than others:

Companies that have a relatively small number of employees or that have a corporate culture of broadly sharing information often apply these blackout periods to all employees. Many young public companies adopt this approach, particularly if they have only one principal facility and their employees have fairly open access to company information.

More established companies with large numbers of employees, multiple facilities and more restricted access to sensitive information typically apply blackout periods only to designated employees, such as management, finance, accounting and legal staff. Similarly, the company must decide which employees will be subject to the other provisions of the policy.

The memo cites surveys sponsored by our colleagues at NASPP & Deloitte concerning the scope of blackout period restrictions. The surveys, which were taken in 2014, 2017 & 2020, indicate that blackout prohibitions apply almost universally to Section 16 officers, directors, other members of senior management & employees with access to financial information or MNPI. However, only around 60% of those policies apply to middle management, and less than 50% apply to all exempt employees.

Securities transactions by companies & insiders are under increasing scrutiny from investors, regulators, and even Congress. Be sure to check out our July 20th webcast on “Insider Trading Policies & Rule 10b5-1 Plans”  for insights on the latest developments from our panel of experts!

A Fond Farewell to Anne Triola

After more than 20 years of service, our webmaster, Anne Triola, is retiring today.  Anne has handled posting of an often overwhelming volume of material on a daily basis, not to mention coding webcast transcripts, creating new practice areas, and performing 1,001 other tasks without which these sites would simply shut down. She’s always juggled the demands of multiple editors with good humor, great efficiency, and quiet competence.

Anne, thank you for everything.  We will miss you, and we wish you and your husband a happy and healthy retirement. Bon voyage!

John Jenkins