Tag Archives: Richard A. Rosen

SEC Settles Charges Against BMW AG for Failure to Provide Accurate Disclosure in Rule 144A Bond Offerings

by Mark S. Bergman, Richard A. Rosen, and Tong Yu

On September 24, 2020, the SEC announced[1] settled charges against BMW AG and two of its U.S. subsidiaries for inaccurate and misleading disclosures included in offering memoranda for Rule 144A offerings of bonds in the United States. The enforcement action arose out of improper reporting of retail sales of BMW vehicles. The enforcement action was based on violations of Section 17(a)(2) and (a)(3) of the U.S. Securities Act of 1933 (the “Securities Act”).[2]

This enforcement action is notable in that it is highly unusual for the SEC to pursue disclosure claims against a foreign issuer (that is not an SEC registrant) undertaking an offering of securities in the United States on a private basis. In 2003, the SEC brought an action against Parmalat Finanziara S.p.A. for violations of Section 17(a) in connection with debt offerings in the United States; the claims arose out of the financial scandal involving Parmalat and certain of its senior managers and directors.

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ESG Disclosures: Task Force on Climate-Related Financial Disclosures

by Mark S. Bergman, Ariel J. Deckelbaum, Jeh Charles Johnson, Brad S. Karp, Loretta E. Lynch, Richard A. Rosen, Audra J. Soloway, Frances F. Mi, and David G. Curran

The disclosure recommendations of the Task Force on Climate-related Financial Disclosures (“TCFD”), which consider the physical, liability and transition risks associated with climate change, are intended to facilitate the development of voluntary and consistent climate-related financial disclosures by companies for investors, lenders, insurers and other stakeholders. Since their publication in 2017, the TCFD recommendations have emerged as a leading international framework for climate-related disclosures, although uptake on these standards has been slower in the United States than elsewhere. The number of companies that reference the TCFD recommendations in their disclosures is steadily increasing, and industry leaders continue to call on companies to adopt these recommendations.

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ESG Disclosures: The Push for Consistent and Comparable Standards – Europe

by Mark S. Bergman, Ariel J. Deckelbaum, Jeh Charles Johnson, Brad S. Karp, Loretta E. Lynch, Richard A. Rosen, and Audra J. Soloway

Key Takeaways

  • The European Union has taken a leading role in advancing ESG disclosure requirements across the full spectrum of sustainability topics. Some of the initiatives are focused largely on climate issues, while others address the broader sustainability landscape.
  • In the absence of international consensus on ESG disclosure requirements, EU regulations and guidance could begin to shape disclosure in other jurisdictions.

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Recent Decision Finds Waiver Based on “Oral Downloads” to the SEC

by Brad S. Karp, Jessica S. Carey, Andrew J. Ehrlich, Roberto Finzi, Michael E. Gertzman, Michele Hirshman,  Daniel J. Kramer, Lorin L. Reisner, Richard A. Rosen, Audra J. Soloway, Richard C. Tarlowe, Andrew D. Reich, and Joseph Delich

A federal magistrate judge in the Southern District of Florida recently ruled that a law firm had waived work product protection over notes and memoranda of witness interviews when it provided “oral downloads” of those interviews to the Securities and Exchange Commission (“SEC”).

In a December 5, 2017 opinion, SEC Herrera, No. 17-cv-20301 (S.D. Fla. Dec. 5, 2017), Magistrate Judge Jonathan Goodman indicated that he was “not convinced” that “there is a meaningful distinction between the actual production of a witness interview note or memo and providing the same or similar information orally.”[1]

The opinion serves as an important reminder of the risks of waiver—and the need to take steps to minimize those risks—when disclosing information to a government agency. Continue reading →