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Annual Review of Federal Securities Regulation

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Annual Review of Federal Securities Regulation Annual Review of Federal Securities Regulation By the Subcommittee on Annual Review, Committee on Federal Regulation of Securities, ABA Business Law Section* Contents Regulatory Developments 2018 ................................................................ 839 Changes to Definition of Smaller Reporting Company ......................... 839 Amendment of Rule 701(e) Threshold for Compensatory Offerings .... 843 Disclosure Amendments ....................................................................... 844 SEC Expands Safe Harbor to Promote Research on Investment Funds............................................................................................... 848 SEC Expands Regulation A Exemption to Exchange Act Reporting Companies ....................................................................................... 851 Final Inline XBRL Rule in Filing Tagged Data...................................... 854 SEC Amends Mining Disclosure Requirements to Align with Current Global Practices................................................................................ 854 Accounting Developments 2018............................................................... 857 ASUs Originated by the FASB .............................................................. 859 ASUs Originated by the EITF ............................................................... 892 Caselaw Developments 2018 .................................................................... 895 Overview .............................................................................................. 895 * Anna T. Pinedo, Chair, is a member of the New York bar, a partner in the Corporate & Securities practice at Mayer Brown LLP in New York, and an adjunct professor at the George Washington Uni- versity Law School. Jennifer J. Carlson is a member of the California and Illinois bars and a partner in the Corporate & Securities practice at Mayer Brown LLP in Palo Alto. Sean M. Donahue is a member of the District of Columbia bar and a partner at Morgan, Lewis & Bockius LLP in Washington, DC. Martin Estrada is an associate in the Corporate & Securities practice at Mayer Brown LLP in New York and a member of the New York bar. William O. Fisher is a member of the California bar, a visiting professor at The University of Nebraska-Lincoln College of Law, and a former partner of Pillsbury Winthrop LLP in San Francisco. Raffi Garnighian is an associate in the Corporate & Securities practice at Mayer Brown LLP in New York and a member of the New York bar. Gonzalo Go is an associate in the Corporate & Securities practice at Mayer Brown LLP in New York and a member of the New York bar. Linda L. Griggs is a member of the District of Columbia bar and a senior counsel at Morgan, Lewis & Bockius LLP in Washington, DC. John J. Harrington is a member of the Ohio bar and a partner in the Corporate & Securities practice at BakerHostetler in Cleveland. Michael L. Hermsen is a member of the Wisconsin and Illinois bars and a partner in the Corporate & Securities practice at Mayer Brown LLP in Chicago. Laura D. Richman is a member of the Illinois bar and counsel in the Corporate & Securities practice at Mayer Brown LLP in Chicago. Julia Spinelli is an associate in the Corporate & Securities practice at Mayer Brown LLP in New York and a member of the New York bar. 835 836 The Business Lawyer; Vol. 74, Summer 2019 Supreme Court ..................................................................................... 898 Appointment of SEC ALJs ............................................................... 898 SLUSA’s effect on Securities Act claims filed in state court............. 901 Courts of Appeals................................................................................. 903 Definition of a security .................................................................... 903 Rulemaking...................................................................................... 904 Materiality........................................................................................ 905 Duty to disclose merger discussions................................................ 908 Mental state necessary to violate prohibition against false statements and misleading omissions during tender offers........................... 913 Falsity of opinions........................................................................... 914 Pleading falsity................................................................................. 917 Scienter and pleading scienter......................................................... 918 Scienter and “tone at the top” .................................................... 919 Scienter in additional cases based on accounting restatements .. 924 Scienter of corporation ............................................................... 928 Coincidence of knowledge and duty to disclose when defendants are part of a business group ....................................................... 930 Rebutting the fraud-on-the-market presumption............................. 931 Loss causation ................................................................................. 934 Corrective disclosure revealing truth but not fraud.................... 935 Securities sale required by contract ............................................ 936 Loss from wrongdoing versus loss from false or misleading statements .............................................................................. 937 Delayed effect of corrective disclosure where trading halted...... 939 Revelation of government subpoena as corrective disclosure ..... 939 The “in connection with” element ................................................... 943 Life sciences cases............................................................................ 945 Disclosure sufficient where company stated FDA would require additional data and analysis but did not also state that the FDA requested independent review of data from a test site .. 945 Company summary of meeting with FDA actionable where the FDA’s minutes of that meeting differed over whether the agency indicated that a long-term outcome study would be needed for licensing rather than a short-term study of a surrogate endpoint 949 Revelation of initial, positive interim results can impose on a company the duty to disclose later interim results that are not positive................................................................................... 953 Section 16(b) application to option packages.................................. 958 Extraterritoriality.............................................................................. 959 No private right of action against issuer and management for violation of conditions placed by the SEC on an exemption from ICA registration........................................................................... 963 Miscellaneous cases ......................................................................... 964 Introduction to the Annual Review 837 INTRODUCTION This Annual Review (“Review”) was prepared by the Subcommittee on Annual Review of the Committee on Federal Regulation of Securities of the ABA Business Law Section. The Review covers significant developments in federal securities law and regulation during 2018. The Review is divided into three sections: reg- ulatory actions, accounting statements, and caselaw developments. The Review is written from the perspective of practitioners in the fields of cor- porate and securities law. This results in an emphasis on significant developments under the federal securities laws relating to companies, shareholders, and their re- spective counsel. Our discussion is limited to those developments that are of great- est interest to a wide range of practitioners and addresses only final rules. During 2018, the U.S. Securities and Exchange Commission (the “Commis- sion”) continued to devote significant resources to rulemaking required by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd- Frank Act”).1 In particular, substantial time was devoted to actions necessary to implement the requirements of Title VII of the Dodd-Frank Act in order to regulate the markets for security-based swaps. During 2018, the Commission also focused on rulemaking that is consistent with the Commission’s Disclosure Effectiveness initiative, and that is intended to promote capital formation. Generally, the Review does not discuss proposed regulations or rules that are narrowly focused. For example, the Review generally does not address regulation of over-the-counter derivatives, hedge fund, and other private fund related rule- making, or rulemaking related to registered investment companies, registered in- vestment advisers, broker-dealers, or municipal advisors. Cases are chosen for both their legal concept as well as factual background. While the Subcommittee tries to avoid making editorial comments regarding regulations, rules, or cases, we have attempted to provide a practical analysis of the impact of the develop- ments in the law and regulations on the day-to-day practice of securities lawyers. 1. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010). Regulatory Developments 2018 A. CHANGES TO DEFINITION OF SMALLER REPORTING COMPANY 1. OVERVIEW Rules of the Commission allow registrants that qualify as “smaller reporting companies” to provide certain scaled disclosures in registration statements, peri- odic reports, and other filings made with the Commission under the Securities Act
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