Skadden Insights Roundup

Skadden Insights – April 2022

Below, we highlight some of our latest thought leadership articles on important legal topics and trends.

Securities Regulation

The U.S. Securities and Exchange Commission (SEC) has followed through on Chair Gary Gensler’s promise to press for a host of new regulations on everything spanning from climate-related disclosures to cybersecurity risk management and SPACs. The agency’s most significant moves include:

Proposed Rules for Climate-Related Disclosures
Long-anticipated proposed rules would mandate climate-related disclosures in annual reports and registration statements, including climate-related risks, financial metrics and greenhouse gas emissions.

Revisiting Share Repurchases in Volatile Times
Corporate share repurchases have been complicated by statutory restrictions on stock buybacks by companies that received assistance under federal COVID-relief programs and proposed SEC rules to curb what some believe are abuses by insiders.

Proposed Rules for Cybersecurity Risk Management and Incident Disclosure
The SEC has proposed rules intended to enhance and standardize disclosures regarding cybersecurity risk management, strategy and governance, as well as cybersecurity incident reporting. Although SEC rules have long required companies to disclose material cybersecurity incidents, the proposal would impose a four-day deadline.

Stricter Beneficial Ownership Reporting Proposed
The SEC has proposed amendments to public company beneficial ownership disclosures. The new rules would significantly change the existing reporting regime, requiring more prompt filings, expanding what qualifies as beneficial ownership, treating some derivative securities as equity and loosening the definition of a “group” for reporting purposes.


ESG: 2021 Trends and Expectations for 2022
This survey of environmental, social and governance (ESG) trends reviews key points from 2021, including growth in the sustainable debt market and initiatives of the Biden administration and the United Nations Climate Change Conference, and considers the outlook for 2022, including regulations to prevent “greenwashing,” new considerations for employers and the relationship between data, technology and ESG. (This client alert was published on February 11, 2022. The SEC has since issued proposed rules on cybersecurity risk management and climate-change disclosures, as mentioned above.)

Digital Assets

Executive Order Aims To Better Coordinate Digital Assets Policies
The Biden administration moved to formulate cohesive governmentwide policies toward cryptocurrencies and other digital assets that would stimulate innovation by creating a clearer legal framework and reducing the regulatory uncertainty surrounding these assets.

Data Sharing

US, European Commission Plan New Framework To Facilitate Data Transfers
The U.S. and the European Commission announced plans to draft a new Trans-Atlantic Data Privacy Framework to replace the European Union-U.S. Privacy Shield, which was invalidated by the EU Court of Justice in 2020. It is the third attempt to develop a legal structure for data flowing from the EU to the U.S. that complies with the EU’s General Data Protection Regulation.

Corporate Governance

What Exactly Is an Independent Director? (Hint: It’s More Complicated Than You Think)
Directors may be considered independent for one purpose but not another, and the fact that one qualified as independent in the past does not mean that will be the case in all future situations. Events and relationships can disqualify an otherwise independent director from participating in decisions. If directors are not alert to independence issues, plaintiffs may portray them as compromised, which could jeopardize board actions.