Securities

CSA publishes revised disclosure expectations for issuers with U.S. marijuana-related activities

Feb 08, 2018

On February 8, 2018, the Canadian Securities Administrators (CSA) published CSA Staff Notice 51-352 (Revised) "Issuers with U.S. Marijuana-Related Activities", which sets out CSA staff’s disclosure expectations for specific risks facing issuers with marijuana-related activities in the U.S.

The revised notice includes additional disclosure expectations that apply to all issuers with U.S. marijuana-related activities, including those with direct and indirect involvement in the cultivation and distribution of marijuana, as well as issuers that provide goods and services to third parties involved in the U.S. marijuana industry. Issuers are expected to provide these disclosures in prospectus filings and other required documents, such as their Annual Information Form and Management’s Discussion and Analysis.

The CSA will continue to monitor developments in the U.S. marijuana industry.

Review the press release on the CSA's website and the Staff Notice on the CSA members’ websites.

A Multitude of Cryptocurrency Developments

Feb 05, 2018

On February 5, 2018, the D&O Diary released a blog on how the astonishing bitcoin bubble may have burst over the last several days.

From its intraday peak in December 2017 of $19,783, the price for bitcoin had fallen to $8,524, a decline of over 60%. Bitcoin’s price has fallen before and it has generally proven to be volatile. The price may yet escalate again. But if it has always been hard to specify a reason for the phenomenal price movements of bitcoin and other cryptocurrencies, there certainly have been recent developments aplenty to undermine the price for these digital assets.

Review the blog on the D&O Diary's website.

Sometimes It’s What You Don’t Say That Gets You in Trouble

Jan 31, 2018

In January 2018, the National Association of Corporate Directors and Partners (NACD) released its "2018 Governance Outlook: Projections on Emerging Board Matters".

When one looks at any list of prominent securities fraud lawsuits, it will probably be dominated by companies such as Enron, WorldCom, Cendant, and HealthSouth, which were charged with misleading investors by actively misstating financial results. The reality, however, is that most securities suits are premised on alleged omissions of material fact, and not the sorts of misrepresentations that capture headlines.

Review the publication on our US firm's website.

SEC Invites Regulated Entities to Voluntarily Submit Self-Assessments of Diversity Policies and Practices

Jan 25, 2018

On January 25, 2018, the Securities and Exchange Commission (SEC) Office of Minority and Women Inclusion (OMWI) introduced its Diversity Assessment Report for Entities Regulated by the SEC.

The Diversity Assessment Report is designed to help regulated entities conduct self-assessments of their diversity policies and practices, as envisioned by the Joint Standards, and provides these entities with a template for submitting information about their self-assessments to OMWI. The Joint Standards also encourage regulated entities to publish information related to their self-assessments on their websites.

Review the press release and the report on the SEC's website.

Researchers find quarterly reporting leads to corporate myopia

Jan 22, 2018

On January 22, 2018, Accounting Today released an article on how mandatory quarterly reporting by public companies can lead to a short-sighted focus on near-term results, according to a new academic study.

The study, by Rahul Vashishtha and Mohan Venkatachalam of Duke University's Fuqua School of Business and Arthur G. Kraft of the Cass Business School of City University London, is set to appear in an upcoming issue of The Accounting Review, published by the American Accounting Association. The professors found that, when new regulatory mandates forced companies to increase the frequency of their financial reporting, they reduced their annual capital investments by around 1.5 to 1.9 percent of their total assets, depending on how the capital investments were defined. The average annual capital investments of those companies totaled approximately 9 percent of assets, so those reductions were hefty cuts.

Review the full article on Accounting Today's website.

Proposed Changes to OSC Whistleblower Program

Jan 18, 2018

On January 18, 2018, the Ontario Securities Commission (OSC) published a proposed change to OSC Policy 15-601 Whistleblower Program. Comments are requested by March 20, 2018.

Two potential changes to the Whistleblower Program have been flagged by the Ontario government and the Commission, respectively.

  • The Ontario government said it intends to introduce a civil cause of action for whistleblowers who experience reprisal for cooperating with the Commission.
  • The Commission has proposed revisions to the Whistleblower Program to clarify that in-house counsel who report misconduct in breach of applicable law society rules will not be eligible for a whistleblower award.

Review the OSC Notice on the OSC's website and a summary on Torys LLP's website.

Let’s Expand Structuring Requirements

Jan 15, 2018

On January 15, 2018, XBRL posted an article from the CFA Institute's Mohini Singh, where they argue that the SEC (and other market regulators around the world) are making positive steps by ensuring that corporate reporting data is machine readable, but that they are only at the beginning of an important journey.

The next steps, in priority order, include:

  1. Publishing Earnings Releases as human-and-machine readable Inline XBRL, with the information that is "the start of the food chain" being available in structured form.
  2. Publishing Management Discussion and Analysis  ("MD&A", often called "management commentary" in Europe and Asia) numeric data in structured form.
  3. Publishing MD&A textual data in block-tagged form.

Review the full article on XBRL's website.

CSA issues statement following rescission of the Cole Memorandum

Jan 12, 2018

On January 12, 2018, the Canadian Securities Administrators (CSA) announced that it is considering whether their disclosure-based approach for issuers with U.S. marijuana-related activities remains appropriate in light of the rescission of the Cole Memorandum.

On January 4, 2018, the U.S. Attorney General rescinded all previous guidance specific to federal law enforcement relating to marijuana, including the prior approach under the Cole Memorandum.

Issuers with no U.S. marijuana-related activities and that otherwise operate in compliance with applicable Canadian laws are not the focus.

The CSA will communicate more details about their position shortly.

Review the press release on the CSA's website.

NYSE Annual Corporate Governance Letter

Jan 10, 2018

On January 10, 2018, the staff of New York Stock Exchange (NYSE) Regulation released a guidance memo for important rules and policies applicable to companies listed on the NYSE.

The letter covers the following:

  • Effectiveness of Rule to Shorten the Settlement Cycle, which took effect on August 28, 2017;
  • Issuance of Material News in the Period Immediately After the Official Closing Time for the Exchange’s Trading Session, which took effect on December 4, 2017;
  • Advance Notice of Dividend or Stock Distribution Announcements to the Exchange, which will take effect February 1, 2018;
  • Annual Report Website Posting Requirement;
  • Corporate Governance Requirements; and
  • Important reminders for all issuers.

The letter is applicable to all listed issuers, with any rule or policy differences for Domestic vs. Foreign Private Issuers (“FPIs”) identified within.

Review the letter on the NYSE's website.

Cryptocurrency-Related Securities Lawsuits: A Litigation Filing Trend for the New Year?

Dec 25, 2017

On December 25, 2017, the D&O Diary published an article on how even after the precipitous drop on Friday in the price of Bitcoin and other digital currencies, the developments during the past several months involving cryptocurrencies have to be one of the year’s top business stories.

Part of this year’s cryptocurrency story has to include the SEC’s increasingly active approach to policing digital currency trading, as well as the rising numbers of lawsuits filed against cryptocurrency sponsors. In recent weeks claimants have filed a number of cryptocurrency-related securities lawsuits.

Taken collectively, the lawsuits give the definite impression the skyrocketing prices of Bitcoin and other cryptocurrencies have attracted a lot of questionable activity. The questionable activity has in turn in many cases led to litigation. Even the downturn on Friday in the price of Bitcoin and other cryptocurrencies could generate further litigation, as investors who lose money on their investment may be motivated to pursue their litigation alternatives.

Signs are that cryptocurrency related litigation will be one of the early litigation filing trends and the sudden surge at year end of these kinds of lawsuits in all likelihood will continue.

Review the full article on the D&O Diary's website.

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