March 11, 2021 Webinar
11:00 am – 11:30 am EST
Register here.

Join this webcast for partner Christina Thomas’ overview of the US Securities and Exchange Commission’s ESG regulations, as well as what she expects will change in the near future with a new US president and a new SEC chair.

Christina recently joined Mayer Brown from the SEC where, in her most recent role, she served as counsel to Commissioner Elad L. Roisman. Christina served as the Commissioner’s lead counsel on all matters related to SEC reporting companies and international affairs. In that role, Christina often dealt with ESG policy issues when advising on SEC rulemakings or working with foreign regulators on cross-border harmonization of rules and regulations.

This will be the first in a series where Mayer Brown lawyers discuss ESG regulations applicable in different jurisdications.

The 10Hundred series focuses on how our present will transform our future. Our lawyers analyze the most pivotal issues, legislative and geopolitical developments and historic events affecting the global business community over the next 100 days and beyond, especially as businesses continuously re-evaluate the issues they are facing amid a global pandemic 

Visit the Mayer Brown 10Hundred portal to watch videos, listen to podcasts, read legal updates, and take part in live events.

On February 26, 2021, the US Securities and Exchange Commission’s (“SEC”) Division of Examinations published a risk alert in connection with the offer, sale, and trading of digital assets that are securities. The risk alert provides observations made by Division of Examinations staff during examinations of broker-dealers, investment advisers, exchanges, and transfer agents. The risk alert also highlights areas of focus for the Division of Examinations’ future examinations.

The Division of Examinations notes that activities relating to digital asset securities “present unique risks to investors.” Market participants should reflect upon their own practices, policies and procedures in light of the considerations highlighted by the risk alert to develop and enhance their compliance programs.

Read the full Legal Update.

On February 26, 2021, the Division of Examinations (“Division”) of the US Securities and Exchange Commission (“SEC”) published a risk alert regarding its continued focus on digital assets (“Risk Alert”). The term “digital asset,” as used in the Risk Alert, refers to an asset that is issued and/or transferred using distributed ledger or blockchain technology (“distributed ledger technology”), including, but not limited to, so-called “virtual currencies,” “coins” and “tokens.” This Legal Update summarizes the Division staff’s observations regarding, and areas of focus in examinations of, investment advisers in connection with their management of Digital Asset Securities, as well as other digital assets and derivative products, for advisory clients.

 

Recently, the US Securities and Exchange Commission (“SEC”) adopted amendments to the definition of accredited investor (“AI”) and amendments to the definition of Qualified Institutional Buyer (“QIB”).  Our updated investor status chart now reflects these definitions.  In addition, below you will find links to an accredited investor and QIB questionnaire, which may be useful in connection with exempt offerings and to accompany subscription agreements, as well as to the amended AI definition for reference.

On February 24, 2021, Acting Chair of the US Securities and Exchange Commission (“SEC”), Allison Herren Lee, announced that the agency will be focusing on public companies’ climate change disclosures as part of an effort to both assess current compliance with federal securities laws and develop new disclosure requirements for climate change. Specifically, she stated that she has directed the SEC’s Division of Corporation Finance “to enhance its focus on climate-related disclosure in public company filings.” Further, SEC staff will increase its attention on how public companies follow the SEC’s 2010 published interpretive guidance on climate change disclosures (the “2010 Climate Change Release” or the “Release”) and whether companies’ disclosures comply with the federal securities laws. Signaling that the SEC is preparing a broad reform of its disclosure rules, Acting Chair Lee also stated that the staff will use the results of these assessments to begin to update the 2010 Climate Change Release and prepare “a more comprehensive framework that produces consistent, comparable, and reliable climate-related disclosures.”

Acting Chair Lee’s announcement follows her recent hiring of a new Acting Director of the Division of Corporation Finance and a Senior Policy Advisor for Climate and ESG.

Read the full Legal Update.

On February 22, 2021, Nasdaq amended the rule changes it initially proposed in September 2020 that would permit an issuer to conduct a concurrent primary offering of its securities and a direct listing on Nasdaq.  In December 2020, the US  Securities and Exchange Commission approved amendments to the New York Stock Exchange (“NYSE”) rules allowing a direct listing on the NYSE with a primary offering component, subject to compliance with certain conditions.  Nasdaq’s amended proposal conforms to the NYSE rules by similarly requiring issuers to price their shares within a specified range.  The initial proposal submitted by Nasdaq would only have required a non-binding price range be disclosed.  Under the revised proposal, the sale price used in the capital raise must be calculated at or above the lowest price and at or below the highest price of the price range established by the issuer in its effective registration statement.  Nasdaq’s amended proposal can be found here.

March 2, 2021 Webinar
1:00 p.m. – 2:00 p.m. EST
Register here.

Direct listings are an alternative to the traditional IPO process and, lately, they have generated much attention. A U.S. or foreign-domiciled company may choose to register a class of its securities under the Securities Exchange Act of 1934 and list its stock on a national securities exchange without undertaking an offering of its securities at the same time in order to provide liquidity for existing stockholders. Several companies have undertaken successful direct listings. Recently, the U.S. SEC approved amendments to the NYSE rules allowing a direct listing with a primary offering component, subject to compliance with certain conditions.  Nasdaq is seeking to amend its rules to allow for a similar process, as well.

During this PLI briefing, Mayer Brown LLP partner Brian D. Hirshberg, Jennie Dong of the NYSE, and Greg McDowell of ICR Strategic Communications & Advisory will cover:

  • Overview of direct listings
  • Documentation requirements for a direct listing
  • Current exchange requirements
  • The role of the financial adviser and the DMM
  • The amendments to the NYSE rules and the direct listing with primary offering
  • Concerns raised by commenters in connection with the amendments
  • Tracing requirements and securities liability considerations
  • Comparison to a traditional IPO
  • Comparison to a merger with a SPAC

February 22, 2021 Webinar
1:00 pm – 2:00 pm EST
Register here

This briefing will provide attendees with a broad, yet focused educational program that presents a clear picture of legal, regulatory and tax considerations for real estate investment trusts (REITs).  During this presentation hosted by the Practising Law Institute (PLI), Brian Hirshberg, Remmelt Reigersman and Thomas Humphreys of Mayer Brown LLP will cover:

  • The advantages associated with REITs;
  • Formation and organization of REITs;
  • Tax requirements for REITs;
  • Other regulatory advantages associated with REITs;
  • Regulatory developments associated with REITs; and
  • Market opportunities for REITs.

Acting SEC Chair, Allison Herren Lee, announced in a February 11 statement that going forward, the Securities and Exchange Commission (SEC) will review offers of settlement and requests for waivers of collateral consequences separately and that the Division of Enforcement will no longer recommend to the SEC a settlement offer that is conditioned on granting a waiver. This action reverses the approach adopted by former Chairman Jay Clayton, which he announced and explained the reasoning behind in a statement published on July 3, 2019.

Depending on the securities law violations, certain SEC enforcement settlements can result in automatic statutory disqualification from privileges and other collateral consequences, including loss of well-known seasoned issuer (WKSI) status, the ability to conduct certain exempt offerings (bad actor status), and the ability to serve in certain capacities for registered investment companies. Sometimes, these collateral consequences are related to the underlying securities law violation, but sometimes, they are not.

The Divisions of Corporation Finance and Investment Management review requests to waive these disqualifications and make recommendations to the SEC as to whether such requests should be granted or denied. The SEC may vote to grant or deny waiver requests wholesale, or can place conditions on the grant of a waiver, in its discretion. Parties desiring to settle often submit their offer of settlement and their waiver request simultaneously, and as mentioned above, since 2019, the SEC has reviewed these submissions together (see our prior post). This practice allowed settling parties to condition their offer of settlement on the SEC’s waiver of collateral consequences.

Acting Chair Lee’s statement revises this practice, noting that while “a waiver, either in full or with conditions, may be appropriate, this determination should be made separately, as a policy matter, from considerations related to the settlement of an enforcement action.” Commissioners Hester Peirce and Elad Roisman issued a dissenting statement, explaining why they disagree with the change in policy and believe the SEC should continue to consider and accept contingent settlement offers.

Recently, the Securities and Exchange Commission’s Division of Corporation Finance issued a sample comment letter that provides guidance to issuers raising capital and that have volatile securities.  The sample comment letter identifies a number of areas of risks that issuers and their advisers should consider under these circumstances, which would include periods during which there have been significant run-ups in the stock price, divergences in valuation ratios relative to those seen during traditional markets, high short interest, reported short squeezes, or reports of strong or atypical retail investor interest.  Under such circumstances, an issuer should consider the sample comments raised in the letter, which, the Division notes, is not an exhaustive list, and tailor the disclosures to the issuer and the offering.  For issuers that already have an effective shelf registration statement, the sample letter may provide a useful roadmap for disclosures to include in a prospectus supplement for a shelf takedown.

See the sample letter here.