After a one-month hiatus, we find ourselves with much to catch up on. Brace yourself.

1. The SEC . . .
   • announced, here, that it no longer requires Tandy language, generally an acknowledgment in SEC comment responses that the issuer will not raise as a defense in securities litigation that the SEC reviewed the filing or declared a registration statement effective. It’s not entirely clear why the SEC felt the need to have an issuer explicitly acknowledge this in the first place, which seemed a solution in search of a problem. But, anyway, you don’t have to do it anymore.
   • proposed rules, here, mandating that EDGAR filings include links to exhibits , certainly making them easier to find when they are incorporated by reference.
   • proposed, here, shortening the “T+3” stock trade settlement time to T+2 , reducing the exposure to events and shenanigans.
   • published no-action letters about “substantially implemented” proxy access proposals , see discussion here.
   • requested comments on its disclosure effectiveness project , here. Most comments to date suggest that the SEC mandate climate change disclosure. In entirely related news, our fatigue with the use of public company disclosure as a substitute (dumping ground?) for substantive social policy increased just a little bit.
2. After foreshadowing a crack down on the use of non-GAAP financial measures (see, e.g., here), the SEC issued a batch of comment letters on NGFMs, see here. In other NGFM news:
3. IOSCO issued a statement on non-GAAP financial measures, here.
4. Audit Analytics published, here, insight on how errors in reported non-GAAP financial measures should be corrected, since these unaudited measures don’t necessarily trigger requirements under Form 8-K or disclosure about internal control deficiencies.
5. Even without additional rules, the march to voluntarily include additional public disclosures about Audit Committees continues, as reported by E&Y here.
6. Material on cybersecurity disclosure practices (mostly in risk factors in periodic reports) is here and here.
7. New York’s Department of Financial Services proposed (see here) the first-ever state cybersecurity requirements for banks, insurers and financial services companies.
8. Some news on the “hot” topic of Cybersecurity:
9. And speaking of the officious intermeddling of states, a new California law, here, will require CA public pension plans to disclose information about fees, expenses, rate of return and carried interest charges of those that administer plan investments.
10. The U.S. Supreme Court heard oral arguments in Salman v. United States, a case on review from the Ninth Circuit, to consider the kind of “personal benefit” necessary to give rise to “tippee” insider trading liability and whether a close family relationship is all that is needed. See here. A decision is expected in the spring. A brief refresher on tipper/tippee liability is here.
11. Interim OSHA guidance on Section 806 of the Sarbanes-Oxley Act, in which it deems problematic any provision that purports to waive a government whistleblower award, is here.
12. The SEC went after another company for impermissible language in severance agreements that prohibited filing whistleblower claims here. Recall our previous coverage of this issue in our May 15, 2015 ICYMI here.
13. A summary of a case holding that you actually have to blow the whistle to be a whistleblower is discussed here.
14. In another Ninth Circuit case, SEC v. Jensen, here, the Court held that Section 304 of the Sarbanes-Oxley Act, the CEO/CFO clawback provision, applies when misconduct of any issuer personnel, and not personal misconduct of the CEO or CFO, leads to a financial restatement. The Court declined, however, to clarify what “misconduct” means. In the same ruling, the Ninth Circuit held that signing a 302/906 certificate could create liability for false claims, which stands for the remarkable proposition that if you certify something you must actually believe it.
15. Some whistleblower news emerged in the last two months:
16. Recall that say-on-pay rules (here) require that a public company determine every six years whether say-on-pay advisory votes are taken every one, two or three years. For public companies that held their first vote in 2011, that means 2017 proxy statements should include a refresh of say-on-pay frequency .
17. Finally, because we often link to Warren Buffet’s folksy annual letter to shareholders, we feel justified in linking to his response to Donald Trump’s claim, used as both defense and offense, that “[m]any of [Clinton’s] friends took bigger deductions. Warren Buffet took a massive deduction.” Not that it, or apparently anything at this point, will affect election results much, but in a normal world Buffet’s statement , here, would be an abject lesson on talking out of school about America’s favorite rich Midwestern grandfather. (Our Editorial Board certainly has views about the presidential candidates. Oh, do we. But, for the record, we don’t care if Trump took legal tax deductions. We cringe, however, at the claim that he is a tax genius for doing so and therefore the only one who can “fix the tax code.” That’s like saying I am a genius for following the TurboTax prompt that allows me to deduct mortgage interest, a fat-cat home owner loophole that only I can fix. “ICYMI Editor-in-Chief 2020”?)