Gouvernance d’entreprise / « Disclosure »

Le département Corporate du cabinet assiste entreprises publiques et privées, conseils d’administration et leurs comités spéciaux, ainsi que des investisseurs sur des questions relatives à la gouvernance d’entreprise.  Nous conseillons également des conseils d’administration, des actionnaires et des dirigeants d’entreprise quant à leurs obligations fiduciaires lors de transactions très variées.

Nous représentons nos clients lors d’émissions de titres et nous assurons qu’ils respectent les règles du NYSE, du NASDAQ, de la SEC (Securities Exchange Act de 1934, Dodd Frank Wall Street Reform Act et Sarbanes-Oxley Act) ainsi que d’autres obligations d’information plus informelles et les aidons dans la gestion des relations avec leurs investisseurs lors de telles émissions.  Nous recommandons à nos clients les « best practices » à adopter quant à la composition et l’indépendance du conseil d’administration, la structure du comité d’audit, la gestion des risques, la rémunération des dirigeants, et d’autres questions de gouvernance.

Enfin, nous conseillons également nos clients, entreprises publiques et privées et sociétés à but non-lucratif, sur la structure à adopter pour leur entité, les questions relatives à leurs obligations fiduciaires, les délits d’initiés, ainsi que la formation et la conduite des comités spéciaux.

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On August 25, 2022, the SEC adopted new pay-for-performance rules requiring public companies to disclose executive pay compared to company performance.

  • While the basic idea behind these rules may seem straightforward, the new rules have the potential to pose a host of new challenges for public companies.
  • Notably, the new rules have the potential to change how a company is seen by altering how its compensation is measured in ways that are not easy to predict.
  • Companies will need to comply with the new rules in the upcoming proxy season and should begin reviewing the new requirements and analyzing how their executive compensation will be viewed under the new rules as soon as possible.

In this client alert, Bonnie J Roe breaks down the SEC’s new disclosure rules, analyzes their potential impact on public companies, and offers insight into how companies can mitigate any potential risks posed by the “pay-for-performance” rules.

Daniel H Mathias spoke with S&P Global about London’s efforts to pry away listings of special purpose acquisition companies (SPACs) from other financial hubs by easing some of its rules.

“Timing is certainly relevant and, indeed some people in the market have questioned the UK changes coming months after the most recent U.S. listings peak,” said Mathias. “But the new rules have merit from a long-term perspective, given that SPACs will remain a capital-raising option and, prior to the amendments, the U.K. was "out of step" with other jurisdictions”, he said. The presumption of suspension and the lack of redemption option, which allows SPAC investors to exit their shareholding before an acquisition is completed, were key deterrents before the change, according to Mathias.

“As the U.S. is a huge market with lots of knowledge around SPACs, there will be a need to create a compelling story as to why these vehicles should be listed in London”, Cohen & Gresser's Mathias said.

Daniel H Mathias spoke with Law360 about the UK’s adoption of friendlier rules governing special purpose acquisition companies (SPACs) – an alternative vehicle to public markets. Dan spoke about the historically low level of SPACs in the UK and noted that "it wouldn't take much for a significant increase.”

As SPACs appear to get a stronger foothold in the U.K. and Europe, Mathias said regulators appear to be taking a “wait and see” approach in terms of next steps. The FCA said it will monitor how its rules play out, observing market trends, evidence of misconduct, or other indicators to decide whether more stringent rules are needed.”

There’s a realization by everybody that SPACs are likely to stay as an option in the M&A and capital markets world,”  Mathias said. “I think all the regulators in Europe are realizing that and trying to navigate their way through that.”

Bonnie J Roe is quoted in an article by Activist Insight about whether adding activism as a risk factor in companies' annual reports is justified.

Muriel Goldberg-Darmon speaks with Caroline Ruellan, President of SONJ Conseil, about the relationship between shareholder dialogue and privileged information in an interview with Forbes.

(Regards croisés entre Caroline Ruellan, Présidente de SONJ Conseil et Muriel Goldberg-Darmon.)

In this article, Bonnie J Roe notes the impact of Reg A+ in the three years after the SEC's revised framwork rules took effect. 

Muriel Goldberg-Darmon speaks to L'Agefi regarding shareholder activism in France.

Muriel Goldberg-Darmon speaks to Décideurs Magazine regarding activist investment funds and minority shareholders.

On February 10, 2022, the SEC adopted a proposal to make significant changes in the rules requiring investors to report their ownership of shares of U.S. publicly traded companies. As recommended by some corporate governance advocates, the SEC has proposed to shorten the deadlines for filing Schedules 13D and 13G, require that certain derivative securities be counted for purposes of calculating beneficial ownership, and change what constitutes a group for purposes of filing Schedule 13D. Not only would these proposals increase the reporting and compliance burdens for investors, but they could also change the dynamics of certain contests for control and expand the number of persons subject to the short-swing profit rules of Section 16 of the Securities Exchange Act.
On the 27th of July this year, the UK Financial Conduct Authority (the “FCA”) published a policy statement setting out its final rules and changes to its listing rules for certain special purpose acquisition companies, or ‘SPACs’. These follow the government’s review of the UK listing regulations led by Lord Johnathan Hill earlier in the year, discussed in Cohen & Gresser’s 7 May 2021 client alert. In its announcement accompanying the policy statement, the FCA explained that the new rules and associated guidance, which will come into force on 10 August 2021, are intended to “provide more flexibility to larger SPACs, provided they embed certain features that promote investor protection and the smooth operation of the UK’s markets.” This client alert details the key changes introduced in the FCA’s policy statement.

In this C&G client alert, Bonnie Roe and Cody Lipton discuss recent statements from the SEC that highlight the importance of “good corporate hygiene” in regulating purchases and sales of stock by the company and its officers and directors, and they analyze the impact of a changing regulatory environment on the design and implementation of 10b5-1 plans.

Muriel Goldberg-Darmon discusses the difficulties facing companies in fulfilling their continued disclosure obligations to the market, as well as the resulting risks of potential AMF sanctions.

John W Gibson, Thomas Shortland, and Ashley Collins outline the key factors company directors must consider when making business decisions during the COVID-19 pandemic, as they may face scrutiny from a range of interested parties including creditors, employees, trade unions, landlords, customers, regulators, insolvency practitioners, and possibly law enforcement.

Muriel Goldberg-Darmon discusses how the outbreak of COVID-19 impacts a company’s responsibility to comply with financial communication and reporting obligations.

Muriel Goldberg-Darmon explains the specific regime of navigating whistleblowing within the French financial sector through the internal procedures of financial institutions and external procedures of the French Financial Market Authority (AMF) and the French Banking Authority (ACPR).

In this C&G Client Alert, Bonnie J Roe and Cody Lipton discuss the SEC guidance issued on January 30, 2020 on the use of key performance metrics for public companies discussing their financial results and proposed amendments to certain financial reporting requirements.

Bonnie J Roe and Cody Lipton examine the SEC's proposed amendments to its definition of “accredited investor,” which add new categories of qualifying natural persons and entities able to participate in certain exempt offerings without specific disclosures or other limitations.

Bonnie J Roe explores how Regulation A may be the best alternative for conducting an initial coin offering in her latest article for Bloomberg Law

Muriel Goldberg-Darmon co-authors an article examining the evolving corporate and social responsibilities of activist investors.

C&G partner Bonnie J Roe discusses the SEC’s response to the Tax Cuts and Jobs Act  and its impact on public company reporting in this C&G Alert. 

Over the past few years, forum selection bylaws have become an established part of corporate governance. This trend has gained momentum during the past few months as such provisions have gained both judicial and legislative support. On the judicial side, most courts have enforced such bylaws. And, on the legislative side, recent amendments to Delaware law now provide statutory support for some uses of forum selection bylaws. This update provides more detail on these key developments and explores how companies should think about forum selection bylaws going forward.

Much of modern corporate governance law turns on the roles of independent directors, but determining who is an independent director is often a complicated task, with separate state law, regulatory, and exchange standards that have evolved over time.  This article looks at key recent developments and provides a field guide for general counsel trying to understand what independence really means.

The proxy and annual reporting season is upon us and, as with other things, it is best to be prepared. Here are some thoughts for publicly traded companies to carry through the season and help plan for the remainder of the year

On December 11, 2013, the public comment period will close on two new auditing standards proposed by the Public Company Accounting Oversight Board (PCAOB) to improve the informational value of the auditor’s report. These proposed standards, if adopted, would change the role of auditors and expand the scope of the auditor’s report.

As we have previously noted, exclusive forum bylaws potentially offer protection from the risks of multi-jurisdictional litigation.  Recent developments include the withdrawal of an appeal from a Delaware Court of Chancery decision that found such bylaws facially valid and additional feedback from proxy advisory firms.  This alert provides an overview of questions that remain unresolved and provides guidance to companies and stockholders considering exclusive forum bylaws.

Examining the Dodd-Frank and US Foreign Corrupt Practices Acts  and ways in which companies can institute and augment compliance programs to mitigate the risks they pose.

Offering insight to multinational corporations in terms of navigating within, among, and between the different policies and agendas of antitrust regimes around the world.

C&G partner Bonnie J Roe will speak in a Strafford webinar entitled “Shareholder Engagement Strategies for Public Companies: Avoiding Proxy Contests.” The panel will focus on the engagement between a public company and its institutional shareholders, including discussing strategies, preparation, communication, timing, and legal requirements that management and the board must consider when engaging with shareholders.
Partner Bonnie J Roe was featured on a panel addressing Regulation A at the “Private Placements and Hybrid Securities Offerings 2019” program hosted by the Practising Law Institute.

Muriel Goldberg-Darmon est intervenue sur le thème « Activisme actionnarial et risques d’abus de marché » lors de la conférence sur les Risques de crédits & Risques de marché, Le Mans Université.

(Muriel Goldberg-Darmon gave a presentation, titled “Shareholder Activism and Market Abuse Risks,” at Le Mans University’s Credit Risks and Financial Market Risks conference).

Muriel Goldberg-Darmon a participé à la Table Ronde sur “Quelle coopération entre les mis en cause et l’AMF ?” organisée par la Commission des sanctions de l’AMF le 3 octobre 2018. La table ronde était modérée par : Jean Gaeremynck, président de section au Conseil d’Etat, membre de la Commission des sanctions de l’AMF. Les intervenants étaients : Jean-Luc Blachon, premier vice-procureur, Parquet national financier, Sophie Bresny, chef du service des investigations de l’Autorité de la concurrence Andrew Cotterell, Head of Law, Policy & International, FCA (Financial Conduct Authority), Muriel Goldberg-Darmon Associée du cabinet  Cohen & Gresser,  Benoît de Juvigny, secrétaire général de l’AMF.

(Partner Muriel Goldberg-Darmon spoke at the AMF Enforcement Committee’s annual symposium on October 3, 2018, as the only speaker from a private law firm.  Muriel was a panelist for the second round table on “Cooperation between the respondents and the AMF during investigations or inspections and sanctions,” which was moderated by Jean Gaeremynck, State Councilor and member of the AMF Enforcement Committee.  Muriel’s fellow panelists were: Jean-Luc Blachon, First Vice-Prosecutor at the Parquet National Financier; Sophie Bresny, Head of the Inspections Unit at the Autorité de la concurrence; Andrew Cotterell, Head of Law, Policy & International at the FCA (Financial Conduct Authority); and Benoît de Juvigny, Secretary General of the AMF).

Partner Bonnie J Roe will speak on a panel entitled “Going (to the) Public” at the ABA Business Law Section Annual Meeting 2018 in Austin, Texas on September 14. 

Muriel Goldberg-Darmon participated in the “Activists Funds: Opportunity or Threat for the Economy” roundtable at the conference on Activists Funds and Governance organized by the Paris-Dauphine University on June 26th, 2018. The panelists were:  Hubert de Vauplanne, Partner at Kramer Levin, Edouard Dubois, Vice-President at Blackrock, Philippe Leroy, President at Associés en Finance, Ahmed Guenaoui, Administrateur civil at Direction générale du Trésor,  Laurence Boisseau, Journalist at Les Echos, Colette Neuville, President at ADAM (Minority Shareholders Defence Association), Anne-Sophie d’Andlau, Co-Founder and Managing Partner at CIAM,  and Muriel Goldberg-Darmon, Partner at Cohen & Gresser. The roundtable was moderated by Sophie Schiller, Professor at Paris-Dauphine. Please also find a link to the September 6, 2018 issue of the magazine, La Semaine Juridique, in which a transcription of Muriel's presentation, "Fonds activistes : opportunité ou menace pour l’économie ?" is featured on page 42.

Bonnie J Roe presented at The Reg A Conference by DealFlow Events on "Will Regulation A find its niche?"

This course will examine the legal and practical foundations of good corporate governance for privately held companies, particularly younger growth companies, or start-ups, and companies backed by venture capital or private equity investors. 

This panel will discuss recent trends in compliance and enforcement, including 10b5-1 plans, hedging and pledging, and case law developments. 

The panel will address best practices for corporate counsel assisting boards of directors in fulfilling their corporate governance responsibilities, including the various ethical issues that may arise in evaluating an acquisition, conducting an internal investigation or other situations.