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SEC Issues Joint Statement Relating to Complex Financial Products

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On October 28, 2020, the U.S. Securities and Exchange Commission (SEC) Chairman Jay Clayton, together with the directors of three SEC divisions, issued a joint statement relating to complex financial products. The statement relates to a fairly broad

We are Morrison Foerster — a global firm of exceptional credentials. Our clients include some of the largest financial institutions, investment banks, and Fortune 100, technology, and life sciences companies. The Financial Times has named us to its list of most innovative law firms in North America every year that it has published its Innovative Lawyers Reports in the region,and Chambers Asia-Pacific has named us the Japan International Firm of the Year for the sixth year in a row. Our lawyers are committed to achieving innovative and business-minded results for our clients, while preserving the differences that make us stronger.Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Prior results do not guarantee a similar outcome.

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On October 28, 2020, the U.S. Securities and Exchange Commission (SEC) Chairman Jay Clayton, together with the directors of three SEC divisions, issued a joint statement relating to complex financial products. The statement relates to a fairly broad group of products, but addresses in particular a number of sophisticated leveraged and inverse structured products, including ETFs and exchang- traded notes (ETNs).The joint statement is relatively brief, but addresses several potentially complex issues, which are discussed in our <a href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt3214a7d0628f3963/62731458b5ad5f2863c59500/201030-structured-thoughts.pdf" target="_blank">newsletter</a>.

SEC Issues Joint Statement Relating to Complex Financial Products

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Hillel Cohn specializes in securities regulatory matters, including representation of foreign banking organizations, broker-dealers and investment advisers on securities compliance and regulatory issues. Hillel assists such clients with designing their operations and products to comply with applicable laws, provides advice on securities compliance issues and provides counsel in their dealings with the SEC, FINRA and other U.S. regulatory authorities. In addition, he has worked on a number of acquisitions, joint ventures, correspondent agreements, financings and restructurings of broker-dealers and investment advisers.Hillel also advises public companies with respect to corporate governance, SEC compliance, securities offerings, mergers, acquisitions, and joint ventures. He has extensive experience handling public offerings of equity, debt and real estate securities and has also represented a number of emerging technology and life science companies in dozens of venture financings.Hillel assists public companies ranging from small-cap issuers to NYSE listed companies with SEC reporting and compliance. Hillel has counseled a number of public companies with respect to the design and implementation of corporate governance policies and procedures. He also has acted as special counsel to special Board committees appointed to evaluate strategic options, including going private proposals, conduct internal investigations, or review proposed related party transactions.Hillel assists public and private companies with mergers, acquisitions, joint ventures and similar transactions, with notable experience in handling cross border acquisitions and international investments. He has assisted a number of U.S. companies in establishing business operations in China through joint ventures and other business arrangements and he has represented a number of Japanese companies in their acquisitions of publicly held U.S. companies.Prior to joining the firm, Hillel worked for the SEC for seven years and in private practice for 23 years. He has also been named as a 2006-2022 Best Lawyer in America in the field of Securities Law and listed in Super Lawyers magazine from 2004-2016. Hillel serves on the Greater Los Angeles Division Board of Directors of the American Heart Association.

Hillel T. Cohn

Senior Of Counsel

Kelley Howes is a Partner in the firm's Denver office and Co-Chair of the Investment Management Group.Kelley has experience with a wide range of legal, regulatory, compliance, corporate governance, insurance, and other matters relating primarily to the representation of U.S. registered and unregistered investment companies, offshore funds, registered investment advisers, transfer agents, and broker-dealers.Kelley has counseled independent fund directors on governance issues, and has advised mutual funds on mergers, reorganizations, compliance, and regulatory matters, including examinations and enforcement matters. She has also advised public companies with regard to corporate governance and various corporate transactional matters, including mergers and acquisitions, subsidiary ownership issues, and equity and debt issuances.She has more than 20 years’ experience in investment management-related matters. Prior to joining Morrison & Foerster, she served as Executive Vice President and General Counsel of Janus Capital Group Inc., a NYSE-listed global asset management holding company. She also previously served as Senior Vice President and General Counsel of Janus Capital Management LLC, a U.S. registered investment advisory subsidiary of Janus Capital Group, and as President of the Janus funds and President of Janus Distributors LLC.Kelley was recommended and recognized as a “next generation lawyer” by Legal 500 US 2017 and has served on the boards of directors of Young Americans Bank/Young Americans Center for Financial Education; ICI Mutual Insurance Company; and the Denver Metro Chamber of Commerce. She was also recognized as a "Top Lawyer" for Securities in the 2022 guide of 5280, Colorado's largest local publication. She is a member of Morrison Foerster's global Environmental, Social, and Governance (ESG) steering committee.During her time at Suffolk University School of Law, Kelley was a member of the Suffolk Transnational Law Review.

Kelley Howes

Co-chair of Investment Management Group

<div class="videoWrapper"><iframe class="sticky-video" title="Meet Dave Lynn, Securities and Corporate Governance Partner" src="https://www.youtube-nocookie.com/embed/0F4evzX0CU0?rel=0" allow="autoplay; encrypted-media" allowfullscreen="1" frameborder="0" title="iframe"></iframe></div>David M. Lynn is chair of the firm’s Public Company Advisory & Governance practice. He served as Chief Counsel of the Division of Corporation Finance at the U.S. Securities and Exchange Commission.Dave provides guidance to companies, underwriters, boards of directors, and other market participants on corporate finance and governance matters, as well as best practices for disclosure and compliance. In addition to being a leading authority on SEC issues, Dave is particularly well known in the area of executive compensation disclosure, having co-authored “The Executive Compensation Disclosure Treatise and Reporting Guide.”While serving as Chief Counsel of the Securities and Exchange Commission’s Division of Corporation Finance, Dave led the rulemaking team that drafted significant revisions to the SEC’s executive compensation and related party disclosure rules. Dave rejoined the SEC as Chief Counsel shortly after adoption of the Sarbanes-Oxley Act of 2002, and served in that position until 2007 providing interpretive advice, formulating policy decisions, and publishing the Division’s Compliance and Disclosure Interpretations. Dave initially served on the SEC staff from 1995-2000 as an Attorney-Advisor, and subsequently as a Special Counsel in the Division of Corporation Finance. While in private practice from 2000-2003, he advised clients on SEC investigations, securities transactions, mergers and acquisitions, and corporate governance.Dave is co-editor of <a href="https://thecorporatecounsel.net/" target="_blank">TheCorporateCounsel.net</a>, The Corporate Counsel, <a href="https://compensationstandards.com/" target="_blank">CompensationStandards.com</a> and The Corporate Executive, which are widely read sources on securities, governance, executive compensation and corporate law matters. Dave also has served as chair of the American Bar Association Business Law Section’s Federal Regulation of Securities Committee, co-chair of the Practicing Law Institute’s Annual Institute on Securities Regulation and chairman of the Board of Trustees of the Securities and Exchange Commission Historical Society. He is also a member of our global Environmental, Social, and Governance (ESG) steering committee.