May 28, 2022

Volume XII, Number 148

Advertisement
Advertisement

May 27, 2022

Subscribe to Latest Legal News and Analysis

May 26, 2022

Subscribe to Latest Legal News and Analysis

Could The SEC Have Made A Weaker Case For Mandating Enhanced Repurchase Disclosures?

Earlier this month, the Securities and Exchange Commission proposed rule amendments that would require an issuer, including a foreign private issuer and certain registered closed-end funds, to report any purchase made by or on behalf of the issuer or any affiliated purchaser of shares or other units of any class of the issuer’s equity securities that is registered pursuant to Section 12 of the Securities Exchange Act of 1934.  As I read the SEC's 102-page rule proposal, I was struck by the SEC's repeated use of "could".   According to my count, the word appears 90 times in the proposing release.   

"Could" is the past participle of "can".  When used as a substitute for "can", "could" implies a greater degree of uncertainty.   When we say that something "could happen" we mean that it might or might not happen.   Essentially, it means that something is possible, not that it necessarily will occur.  Thus, the proposing release's constant use of the word conveys notable incertitude on the part of the SEC.  For example, the SEC seems be far from convicted when it states "we believe investors could benefit from improving the quality, relevance, and timeliness of information related to issuer share repurchases" (emphasis added).  If the SEC is not convinced that investors will benefit, why is it proposing to impose additional burdens on issuers and ultimately their owners?  

"Could" is another example of an English word with a silent consonant. See Bothered By Silent Letters?  Sometimes Latin Is To Blame.  In this case, the "could" is derived from the Old English word cuðe.  The "l" was added about 500 years ago so that the spelling would mirror "would" and "should" which were descendants of Old English words that included the letter "l".  

© 2010-2022 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume XI, Number 361
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm
Partner

Keith Bishop works with privately held and publicly traded companies on federal and state corporate and securities transactions, compliance, and governance matters. He is highly-regarded for his in-depth knowledge of the distinctive corporate and regulatory requirements faced by corporations in the state of California.

While many law firms have a great deal of expertise in federal or Delaware corporate law, Keith’s specific focus on California corporate and securities law is uncommon. A former California state regulator of securities and financial institutions, Keith has decades of...

949-851-5428
Advertisement
Advertisement
Advertisement