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Ning Chiu

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Ms. Chiu is counsel in Davis Polk’s Capital Markets Group with an emphasis on advising public companies and their boards of directors on corporate governance, securities law and regulatory requirements. [Full Bio]

Latest Articles

State Street’s letter to board members advises companies that this year they intends to focus on corporate culture as one of many key intangible value drivers.  Through engagement, they have found that “few directors can adequately articulate their company’s culture or demonstrate how they assess, monitor and influence change when necessary.” When engaging with directors and management on corporate culture, State Street will expect to understand the following: Can the director(s) articulate the current corporate…
CII has published an update to its analysis of disclosure on board evaluations in proxy statements, highlighting as “Seven Indicators of Strength” a wish list of information. The report contains multiple qualifications and statements designed to reassure companies, including that they are not expected to reveal any specific details about the results of the evaluations, but instead the disclosure should focus on the process for continued improvement.  In addition, the seven benchmarks selected in the…
At the very end of the year, the SEC announced the entry of an administrative order instituting cease-and-desist proceedings in connection with financial reporting at a major rental car company, including earnings guidance. According to the order, “under persistent pressure to meet budgets, and to generate opportunities to help close company-wide budget gaps or revenue shortfalls,” the company did not comply with GAAP in 2012 in accounting for contingencies, particularly in determining when to increase…
The SEC instituted a cease-and-desist proceeding in a fairly straightforward enforcement action that nonetheless emphasizes the importance of the requirement that GAAP measures must be provided with “equal or greater prominence” when a company discloses non-GAAP measures. The SEC found that a company provided non-GAAP financial measures, such as adjusted EBITDA, adjusted net income and free cash flow before special items, without giving equal or greater prominence to the comparable GAAP measures. In the headline…
The SEC yesterday announced that it has adopted the Dodd-Frank hedging policy disclosure rules and issued a request for comment on quarterly reporting.  We will provide additional information in the form of client memos, but preliminary information based on the fact sheets published includes: Hedging Rules.  Compliance is required in proxy statements during fiscal years beginning on or after July 1, 2019.  Companies must disclose any practices or policies it has adopted about the ability…
The SEC’s solicitation of comments on the proxy process has led to more than 150 public letters.  While almost no companies sent in letters under their own names, investors have submitted the bulk of the commentary, including nearly all of the familiar groups of shareholder proponents.  Insight from a few major institutional investors follows, with diverging views about shareholder proposals and oversight of proxy advisory firms. Don’t change, or do change, ownership or resubmission thresholds…
In a wide ranging speech yesterday on SEC rulemaking, Chairman Clayton stated that after disregarding the more “aspirational” approach of past administrations, the SEC’s changed its approach to tailoring the 2018 Regulatory Agenda to the initiatives that the agency could reasonably complete in the next 12 months.  This led to the Commission advancing 23 of the 26 rules cited in the 2018 agenda. Among the many significant initiatives for 2019 that the Chairman listed as…
With funding from the Investor Responsibility Research Institute (IRR), the Sustainable Investment Institute (Si2) reviewed the current state of companies’ sustainability reporting and found that although most S&P companies gave sustainability information, they followed a wide range of practices.  The websites of 92% of S&P 500 companies included disclosure on sustainability, but only 395 companies (78%) issued reports.  Within those reports, 357 companies provide environmental metrics and 320, social data.  Other findings include: Most reports…
The SEC issued a Sunshine Act Notice for an open meeting next Wednesday, December 5, where they will consider whether to issue a Request for Comment on the nature and content of quarterly reports and earnings releases issued by reporting companies.  The open meeting will start at 10:00 a.m. (ET) and will be webcast. As reported by media, President Trump asked the SEC in August to study the possibility of requiring less frequent earnings…
Cryptocurrency fraud and schemes against mom-and-pop retail investors may consume the limelight and make for good press, but the SEC enforcement division’s annual report also highlights continued interest in public company actions. Individual accountability is one of the staff’s five key initiatives. In FY 2018, the Commission charged individuals in more than 70% of the enforcement actions it brought, including “numerous” CEOs and CFOs, as well as accountants, auditors and other gatekeepers. The Division’s Cyber…