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The Q3 2015 Halo Report has been released by The Angel Resource Institute at Willamette University (ARI) and PitchBook.  The Halo Report analyzes angel group investment activity and trends in the United States.  Here are a couple interesting Q3 2015 highlights:

  • The median seed-stage valuation has hit an all-time high of $4M (up from $3M in 2014);
  • The median round size in deals with only angel investors was $725K and the median round size in deals when angels co-invest with non-angels was $1.71M (both up materially from Q3 2014);

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Continue Reading Angel Investment Trends: Q3 2015 Halo Report

From our colleagues Kelly Friedman, Tamara Hunter and Jim Halpert

This fall, more than a year after Canada’s anti-spam legislation (CASL) came into force, it is abundantly clear that the regulator, the Canadian Radio-television and Telecommunications Commission, is taking its new responsibilities very seriously.

In the latest developments, the CRTC recently issued an Enforcement Advisory and further Guidance on Implied Consent.

The CRTC’s message is loud and clear – it will impose penalties, regardless of good intentions.

Find out more about CASL and the key messages for business in…
Continue Reading Canadian Anti-Spam Regulatory Activity

From our colleague Michael McKee

The EU has adopted a new regulation, which will introduce a new legal framework for electronic signatures, seals, time stamps and electronic documents.

These rules aim at creating a uniform regime across EU for the mutual recognition of electronic identification between member states. This new regulatory framework (910/2014/EU) was published in the Official Journal of the EU on 28 August 2014 under the name “Regulation on electronic identification and trust services for electronic transactions in the internal market” (commonly referred as “e-IDAS” Regulation).

It will…
Continue Reading Electronic Signatures – New European Union Regulation

PitchBook just released its analysis of Q2 2015 venture capital activity by region, focusing on the six of the most active U.S. regions: the Bay Area; Boston; Los Angeles; the Midwest; New York; and the Pacific Northwest.  Below is also a quick summary of the Q2 2015 highlights by region:

Bay Area:

  • The median pre-money valuation for Q2 2015 was $63.5m (up from $29m for Q4 2014).
  • The most active sector (by both deal count and capital invested), by a wide margin, was

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Continue Reading Recap of Q2 2015 Venture Capital Activity by Region

The SEC has proposed rules requiring listed issuers to adopt and comply with written “clawback” policies. These policies would need to provide that, if a listed issuer is required to prepare an accounting restatement due to the material noncompliance of the issuer with any financial reporting requirement under the securities laws, then the issuer will recover the amount of any incentive-based compensation erroneously awarded to an executive officer. The listed issuer would also be required to disclose its clawback policy, disclose information about actions taken pursuant to its policy, and file its policy as an exhibit to its annual report.
Continue Reading SEC Proposes Clawback Rules

Exclusive Forum Provisions

We have previously blogged about Delaware corporations considering, and Delaware courts upholding, “exclusive forum” provisions in their charter documents. These provisions require stockholder derivative and other intra-corporate lawsuits to be filed in the Delaware Court of Chancery.

Last week, following overwhelming support in the Delaware Legislature, the Delaware Governor signed into law an amendment to the Delaware General Corporation Law that expressly authorizes provisions in the corporation’s certificate of incorporation or bylaws establishing Delaware as the exclusive forum for “internal corporate claims.” Internal corporate claims…
Continue Reading Delaware Permits Exclusive Forum Provisions, Bars Fee-Shifting Provisions

From our colleagues Lucas V. Muñoz, Margaret Keane, Ben Gipson and Daniel Lac

Beginning July 1, 2015, employers in the State of California are required to provide employees with paid sick leave (PSL) under the California Healthy Workplace Healthy Family Act of 2014. In short, every employee who works at least 30 days in a year is entitled to accrue PSL at a rate of at least one hour of PSL per 30 hours worked, up to 24 hours per year.

Simple enough? Not really. As employers implement…
Continue Reading IMPLEMENTING CALIFORNIA’S PAID SICK LEAVE LAW: 10 ACTION ITEMS

In light of the SEC’s first enforcement action against a company for impeding whistleblower activity in violation of Rule 21F-17, employers may wish to consider clarifying in their agreements, policies and practices that involve confidentiality obligations that employees may provide truthful information to the SEC or other governmental agencies concerning potential violations of law.

Rule 21F-17, adopted pursuant to the Dodd-Frank Act, provides in relevant part:

(a) No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement … with respect to such communications.

KBR, a Houston-based global technology and engineering firm, had a practice of conducting internal investigations in response to complaints regarding potential illegal or unethical conduct, which included interviewing employees (including those who had lodged a complaint). KBR required witnesses in these internal investigations to sign a confidentiality statement that included the following language:

I understand that in order to protect the integrity of this review, I am prohibited from discussing any particulars regarding this interview and the subject matter discussed during the interview, without the prior authorization of the Law Department. I understand that the unauthorized disclosure of information may be grounds for disciplinary action up to and including termination of employment.

The SEC acknowledged that it was not aware of any employee in fact being prevented from communicating directly with SEC staff, or of KBR taking any action to enforce these confidentiality statements. Nevertheless, the SEC concluded that that the language in the confidentiality statement impeded communications with the SEC staff about potential securities violations by requiring permission from KBR’s legal department or face the prospect of discipline.
Continue Reading Carefully Draft NDAs to Avoid Whistleblower Concerns

We have previously blogged about the SEC’s July 2013 rule change that disqualifies certain “bad actors” from using Rule 506. Thankfully, Rule 506 permits the SEC to determine, upon a showing of good cause, that it is not necessary under the circumstances to deny availability of Rule 506. The SEC has recently issued a policy statement explaining how it will evaluate whether a party seeking a waiver has shown good cause that it is not necessary under the circumstances that the exemptions be denied.

Background

Other securities offering exemptions, including Rule 505 and Regulation A, have had bad actor disqualifications for many years, and the SEC has also had the authority to grant waivers under these exemptions using a similar “good cause” standard. In fact, based on this interesting article from Urska Velikonja, the SEC granted waivers nearly 200 times between July 2003 and December 2014. However, because Rule 506 is so much more widely used in mainstream private securities offerings, significant attention to waivers of bad actor disqualifications emerged as the first waivers were granted under Rule 506 (such as those granted to Oppenheimer and H.D. Vest). The attention to the issue culminated in several SEC commissioners publicly expressing diverging views about the proper use of waivers, including in speeches by SEC Commissioners Daniel Gallagher, Kara Stein and Michael Piwowar and SEC Chair Mary Jo White. This ultimately led to the SEC issuing its recent policy statement to bring consistency to how such waivers are granted, whether under Regulation A, Rule 505 or Rule 506.
Continue Reading Factors the SEC Considers in “Bad Actor” Waivers

Today, the U.S. Supreme Court issued its anticipated Omnicare decision, which addresses the standard of liability applied to expressions of opinion in a registration statement for a public offering. While there will be clamoring about Omnicare (it is somewhat rare for the Supreme Court to issue securities law decisions), in my opinion the case does not involve a fundamental shift in how disclosure is drafted, although it does invite a few drafting and diligence strategies.

Statutory Backdrop

Section 11 of the Securities Act of 1933 permits purchasers of securities to sue for damages if a registration statement, at the time it became effective:

  • contained an untrue statement of a material fact; or
  • omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading.

In contrast with other types of securities liability, neither the untrue statements prong nor the omissions prong of Section 11 requires showing that a defendant acted with any intent to deceive or defraud.

Omnicare’s Opinions

Omnicare, the nation’s largest provider of pharmacy services for residents of nursing homes, filed a registration statement for a public offering of its common stock. In discussing the effects of various laws on its business model, including its acceptance of rebates from pharmaceutical manufacturers, the registration statement contained the following statements of opinion:

  • “We believe our contract arrangements with other healthcare providers, our pharmaceutical suppliers and our pharmacy practices are in compliance with applicable federal and state laws.”
  • “We believe that our contracts with pharmaceutical manufacturers are legally and economically valid arrangements that bring value to the healthcare system and the patients that we serve.”

Continue Reading IMHO, Omnicare Doesn’t Materially Change Opinion Disclosure