New Hart-Scott-Rodino (HSR) reporting requirements took effect September 25, 2019. The Federal Trade Commission (FTC) recently made changes to the HSR form. Retail clients exploring a merger or acquisition should be aware that the FTC requires updated codes for Item 5 of the HSR form. Clients will need to provide 6-digit North American Industry Classification System (NAICS) codes and 10-digit North American Product Classification System (NAPCS) codes when reporting manufacturing revenues. The FTC will require 2017 NAICS codes for reporting non-manufacturing revenues.
Continue Reading Hart-Scott-Rodino Changes

As reported in our previous client alert, on September 6, 2019, the staff in the Securities and Exchange Commission’s Division of Corporation Finance (the Division) announced important changes to the Division’s process for administering Rule 14a-8 no-action requests regarding shareholder proposals. Specifically, the staff may respond orally rather than in writing to no-action requests. Moreover, the staff may decide not to take a position on the merits of certain requests, thus leaving to the company the decision of whether to include or exclude the shareholder proposal.
Continue Reading Corp Fin Announcement Regarding Rule 14a-8 No-Action Requests

On August 8, 2019, the SEC proposed rules that would revise disclosures for Regulation S-K Item 101 (description of business), Item 103 (legal proceedings) and Item 105 (risk factors), in an effort to make disclosures more useful for investors and make compliance easier for registrants.
Continue Reading SEC Proposes Modernized Business, Legal Proceedings and Risk Factor Disclosures Under Regulation S-K

A recent successful effort by a public company to exclude an environmental proposal from its proxy statement may signal a new approach for boards of directors to consider when managing shareholder proposals. Because retailers and consumer products companies routinely receive shareholder proposals on environmental and sustainability issues, similar arguments for exclusion may be persuasive to the staff of the Securities and Exchange Commission (SEC) in the future.
Continue Reading The Board’s Importance in Vetting Shareholder Proposals

On March 20, 2019, the Securities and Exchange Commission adopted amendments to simplify and modernize disclosure requirements. These amendments implement recommendations from the Fixing America’s Surface Transportation (FAST) Act and are intended to make disclosures easier to read and navigate and to reduce repetitive and immaterial information.
Continue Reading Newly Adopted SEC Rules Implement FAST Act Mandate and Simplify Disclosure

Activist investors continue to make liberal use of the SEC’s Rule 14a-8 to submit proposals for inclusion in company proxy statements. One of the most important shareholder trends to emerge from 2018 is the increasing involvement and support of large institutional investors in certain campaigns. Crisis management was one area in particular that institutional investors prioritized and sought disclosure on in 2018.
Continue Reading Recent Trends in Shareholder Proposals

On January 17, 2019, Hunton Andrews Kurth’s retail industry team, composed of more than 200 lawyers across practices, released their annual Retail Industry Year in Review publication.
Continue Reading Hunton Andrews Kurth Publishes 2018 Retail Industry Year in Review

In a recent speech, Securities and Exchange Commission (“SEC”) Chairman Jay Clayton summarized a number of regulatory priorities for 2019 that may interest retailers. Clayton began the speech looking back on 2018’s accomplishments, then spent the bulk of his time discussing planned rulemaking efforts in the coming year.
Continue Reading SEC Chairman Previews Regulatory Agenda for 2019

On October 23, 2018, the SEC Division of Corporation Finance issued Staff Legal Bulletin No. 14J, which reiterated and expounded upon prior guidance regarding when companies may exclude shareholder proposals under the economic relevance exception of Rule 14a-8(i)(5), and the ordinary business exception of Rule 14a-8(i)(7).
Continue Reading SEC Provides Additional Guidance on Excluding Shareholder Proposals

Retailers sued in state court might be pleasantly surprised to learn that the presence of a forum defendant may not always prevent removal to federal court based on diversity of citizenship. A procedural maneuver known as “snap removal” can allow a defendant to remove such a case in certain situations.
Continue Reading “Snap” to It When Your Company Is Sued in State Court