COVID-19 has had an unprecedented effect on the retail industry across the United States, as many retailers grapple with government mandates that either require closure or impose stringent restrictions on being open, employment and supply chain disruptions, and an overall decline in consumer demand as market conditions remain volatile and unemployment rates continue to rise.
Continue Reading Trends in Retailer SEC Disclosures in Light of COVID-19

The COVID-19 pandemic poses unique and novel challenges to publicly-traded retailers, particularly with respect to design and testing of both internal controls over financial reporting and disclosure controls and procedures. We recommend that retailers assess what has changed in the current financial reporting environment, consider whether existing controls are sufficient to prepare financial statements and disclosure documents at the reasonable assurance level, and determine what new controls (if any) are necessary to reduce the risk of errors and fraud.
Continue Reading COVID-19: Considerations for Internal Controls Over Financial Reporting

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

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

A recent Supreme Court ruling regarding sales taxes and new tariffs on Chinese imports instituted by the Trump administration will impact many retailers, which could in turn have an effect on M&A activity in the retail industry.
Continue Reading SCOTUS Tax Ruling and New Tariffs Could Affect Retail M&A Activity