May 4, 2022

Transcript: “The (Former) Corp Fin Staff Forum”

We’ve posted the transcript for our recent webcast for members, “The (Former) Corp Fin Staff Forum.” This was an action-packed discussion among “All-Stars” – Sidley’s Sonia Barros, WilmerHale’s Meredith Cross, Gibson Dunn’s Tom Kim, Broadridge’s Keir Gumbs and Morrison & Foerster’s Dave Lynn – and it was full of useful info. Here’s something Dave shared about sample comment letters, which is all the more relevant in light of the sample letter that Corp Fin published yesterday:

Another interesting area to pay attention to is one of the topics Sonia just mentioned: climate change disclosure. The Staff took the step that’s become a tried-and-true strategy of putting out a sample comment letter. The concept is, while we could all wait around and see what comments the SEC has issued on climate change after the reviews have been completed and correspondence is put up on EDGAR, but by that time you’ve lost the momentum.

For many years, the Staff has pursued this concept of putting up a sample comment letter that addresses the range of issues. As Sonia mentioned, these letters focused on the applicability of the 2010 interpretive guidance that came from the Commission, as well as the relationship between the type of information that companies put in their investor communications on their website, for example their sustainability reports, relative to what information they determine was “material” for the purposes of their SEC filings. One interpretive “shot across the bow” was putting out those comments so that people could see the positions the SEC was taking in real-time through those letters.

Similarly, we’ve seen a sample letter posted regarding China-based companies. That letter is focused on various risks that have been identified and have been a focus of Congress and the Commission over the last few years, including the applicability of the Holding Foreign Companies Accountable Act. The level of detail in the China-based companies’ letter was significant in terms of the disclosure that was expected in the filings regarding the structures employed by these entities and the involvement of authorities in China with respect to the company’s business and the like. There was specific guidance in there around SPACs, as well.

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Liz Dunshee