When disclosing information in a filing with the SEC, it is important to know whether such disclosure and any related exhibits should be "filed" or "furnished". To non-lawyers, this may seem like semantics or another technical difference among lawyers, but there is a distinct and important difference, which is oftentimes the cause behind the questions we receive from in-house counsel.
Most in-house counsel of public companies are very familiar with the reporting obligations required by the trifecta – Form 8-Ks, Form 10-Qs and Form 10-Ks – but they oftentimes rely on outside counsel to help determine whether any filings are required to be made under Section 16 of the Exchange Act. If someone is an officer or director of a public company or owns more than 10% of any class of securities of a public company, that person is deemed to be an insider of that company and is required to file the following forms with the SEC in order to report his or her insider-ness. As a practical matter, many companies assist their insiders with these forms as a courtesy, even though they are not technically the company’s responsibility.
The nuances of the Social Security and Medicare tax system – collectively FICA taxes – continue to confound and increase the potential liability of employers who are not well versed in this area.
Last week we told you about the five biggest pet peeves of the SEC’s Office of Compliance Inspections and Examinations (OCIE) when examining investment advisers (see "The Top Five ‘Gotcha’ Deficiencies Plaguing Asset Managers and How to Avoid Them"). This week, we want to get you ready for your exam. Here are the OCIE’s examination priorities for 2017 for registered investment advisers and affiliated broker-dealers.1 This year, when conducting examinations of registered investment advisers, the OCIE’s focus will revolve around three themes:
Let’s start with this caveat: as we all know, under the still-new Trump Administration, priorities may and are likely to change. Now that we got that off our chest, it is nevertheless not the time to sit back and wait. The SEC’s Office of Compliance Inspections and Examinations (OCIE) has just given us a list of potholes that investment advisers keep falling into.
The Bankruptcy Appellate Panel (“BAP”) for the First Circuit recently upheld a licensee’s rights to use a debtor’s trademarks and logo after a rejection by the debtor of the underlying licensing and distribution agreement. Mission Product Holdings, Inc., v. Tempnology LLC (In re Tempnology LLC) 2016 WL 6832837 (Bankr. 1st Cir. 11/18/16). Despite the omission of trademarks in the definition of intellectual property protected by Section 365(n) of the Bankruptcy Code, the BAP determined that the rights of the licensee do not vaporize upon rejection, but rather may be enforced in accordance with the terms of the underlying agreement between the licensee and the Debtor.
If you're like me, you are constantly receiving alerts from consultants, law firms, policy shops and others, all predicting how the Trump Administration is going to dramatically change, or even gut, Dodd-Frank and other U.S. financial regulations. As you read these prognostications, keep in mind just how well pollsters, experts and markets did in predicting the election outcome. The reality is, nobody knows what changes the future Trump Administration may make. The only certainty is that determining at this point how Mr. Trump might revamp our financial regulations is a fool's folly.
Congress is poised to eliminate the exemption in the Investment Company Act of 1940 (the 1940 Act) for investment companies located in Puerto Rico, the Virgin Islands, and other U.S. possessions. The 1940 Act governs investment companies, such as mutual funds, with the aim of protecting investors in those investment companies. Since its enactment, the 1940 Act has exempted investment companies located in U.S. possessions, apparently due to the challenges the Securities and Exchange Commission would have faced in administering the 1940 Act in remote territories at the time. That may be about to change.