Francesca L. Odell

Subscribe to Francesca L. Odell's Posts
Contact:Read more about Francesca L. Odell

The following is part of our annual publication Selected Issues for Boards of Directors in 2025. Explore all topics or download the PDF.

The SEC pursued multiple high profile enforcement actions in 2024, alongside issuing additional guidance around compliance with the new cybersecurity disclosure rules. Together these developments demonstrate a continued focus by the SEC on robust disclosure frameworks for cybersecurity incidents. Public companies will need to bear these developments in mind as they continue to grapple with cybersecurity disclosure requirements going into 2025.Continue Reading Cybersecurity Disclosure and Enforcement Developments and Predictions

On August 14, 2024, the U.S. District Court for the Western District of Missouri (the “District Court”) issued a decision ordering a permanent injunction against rules promulgated by the Missouri Securities Division, colloquially referred to as Missouri’s “Anti-ESG” Rules, requiring that broker dealers and investment advisers disclose to and obtain written consent from customers if their investment decisions or advice “incorporate[] a social objective or other nonfinancial objective” (the “Rules”).  The District Court held the Rules were preempted by both the National Securities Markets Improvement Act of 1996 (“NSMIA”) and the Employment Retirement Income Security Act of 1974 (“ERISA”).  The District Court also held the Rules violated the First Amendment’s protection against compelled speech and were unconstitutionally vague.  The decision highlights the limits of U.S. state power in policing the social objectives broker dealers and investment advisers incorporate into their practice and, if not overturned on appeal, suggests that broker dealers and investment advisers may face less legislative pushback, at least at the state level, in pursuing environmental, social, and governance (“ESG”) objectives in the future.Continue Reading District Court Holds Missouri’s “Anti-ESG” Rules are Preempted by Federal Law, Violate First Amendment, and are Unconstitutionally Vague[1]

On March 6, 2024, the U.S. Securities and Exchange Commission approved in a 3-2 vote final rules that require most reporting companies to provide certain climate-related information in their registration statements and annual reports filed with the SEC. This memorandum summarizes a portion of the final rules, the amendments to Regulation S-X, as amended (Regulation S-X), under the Securities Act of 1933, as amended (the Securities Act), and the Securities Exchange Act of 1934, as amended (the Exchange Act), that require a new footnote in audited financial statements, analyzes some of the key challenges these requirements may impose and concludes with some general takeaways. This memorandum does not address the GHG emissions and attestation report disclosure requirements or the governance, business, risk and targets disclosure requirements set forth in the final rules’ amendments to Regulation S-K, as amended (Regulation S-K), under the Securities Act and Exchange Act.Continue Reading SEC’s Final Climate-Related Disclosure Rules: A Closer Look at the Climate Note to Audited Financial Statements

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2024”.

In June 2023, the U.S. Supreme Court held that Harvard University and the University of North Carolina’s admissions programs, which considered candidates’ race in admission decisions, violated the Fourteenth Amendment of the U.S. Constitution and Title VI of the Civil Rights Act of 1964.  While these decisions, known collectively as SFFA, do not apply to a corporation’s employment decisions, language in the Court’s opinion has led many to speculate as to how the precedent could potentially be expanded to this context.  The Court’s majority noted that the language of Title VII of the Civil Rights Act, which, broadly speaking, bars discrimination in employment decisions, is almost identical to corresponding language in Title VI.  Notably, in writing a concurrence joined by Justice Thomas, Justice Gorsuch observed that Title VII is “[j]ust next door” to Title VI, and noted that the majority opinion tracks the Supreme Court’s prior rulings interpreting “materially identical language in Title VII,” prompting Justice Gorsuch to ask rhetorically whether it makes sense to “read the same words in neighboring provisions of the same statute—enacted at the same time by the same Congress—to mean different things?” Continue Reading How Boards Should Be Thinking about the Supreme Court’s SFFA Affirmative Action Decision

Over thirteen years after the Dodd–Frank Wall Street Reform and Consumer Protection Act added Section 10D to the Securities Exchange Act of 1934 (the “Exchange Act”), the Securities and Exchange Commission’s (“SEC”) clawback rules[1] became effective on October 2, 2023 (the “Clawback Rules”). Companies listed on national exchanges such as the New York Stock Exchange (“NYSE”) and the Nasdaq Stock Market (“Nasdaq”) will be required to adopt clawback policies by December 1, 2023 and comply with their respective listing standards.[2] Companies, executives and advisors have understandably been grappling with how to ensure compliance with these new Clawback Rules. Below, we address some common questions that we have received.Continue Reading ClawFAQs: Common Clawback Questions

On July 26, 2023, the U.S. Securities and Exchange Commission (the “SEC” or “Commission”) adopted rules to enhance and standardize disclosure requirements related to cybersecurity incident reporting and cybersecurity risk management, strategy, and governance.Continue Reading New SEC Disclosure Rules for Cybersecurity Incidents and Governance and Key Takeaways

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

In March 2022, the U.S. Securities and Exchange Commission (SEC) issued for public comment a rule proposal regarding certain climate-related disclosures that reporting companies would need to include in their registration statements…

On Friday, the SEC reopened the comment periods for several rulemaking releases due to a technological error that resulted in a number of public comments not being received by the SEC.  The reopening affects several important rulemakings, including those on climate-related disclosure, share repurchases, cybersecurity and SPACs.  While there has been no official update on timing from the SEC, the reopening makes it highly unlikely that it will issue final rules on these topics in October and casts doubt on its ability to do so by the end of the year.
Continue Reading SEC Comment Period Reopening

Diversity, equity and inclusion (DE&I) has received unprecedented support in the past year, and trends show that it is here to stay at the forefront of focus areas for corporations and key stakeholders alike.
Continue Reading Diversity Issues Remain at Center Stage, and the Show Is Just Getting Started