Businesses of all types and sizes throughout the United States, Mexico and beyond bring their disputes to Gardere's litigation team and receive practical, responsive, boutique-style attention in return. Our clients have access to the firepower and value of a well-known and highly-regarded Firm's capabilities and interdisciplinary strengths.
Gardere has a national and international energy practice formed around our Energy Industry Team, which is a multidisciplinary group of approximately 60 attorneys with diverse backgrounds, experience and skills specific to the energy industry. Our team includes attorneys who have served as in-house counsel for major energy companies, providing a depth of insight into our clients' needs, issues and concerns. We understand and regularly practice in virtually every sector of the energy, and we represent a wide variety of industry participants from multinational corporations to individuals.
From our offices in the United States and Mexico, our International Practice helps clients operate in today’s global economy. We have more than 30 professionals operating as a boutique within an Am Law 200 law firm and are able to provide focused service with the resources of a large firm. We understand that clients who are engaged in the global marketplace need lawyers who can operate seamlessly across multiple jurisdictions. Our international experts are multi-lingual, are culturally fluent and intimately familiar with various legal systems across the world, especially those in Latin America. Whether you need help with commercial transactions, regulatory matters, customs and import regulations, immigration matters, M&A and joint ventures, international disputes, or international tax planning, Gardere’s international team is here to assist you.
We represent domestic and foreign private funds in all aspects of fund formation, fund operations, platform and add-on acquisitions, and portfolio company operations. Our team has a reputation for being the go-to-lawyers for private equity funds, hedge funds, venture capital funds and family offices. We are known for our vast deal experience, the efficient way we staff and manage our work, and the way we maintain our relationships. We get deals done with sophisticated, strategic, and practical advice tailored to the needs of our clients.
*Not admitted to practice law.
An issuer with publicly traded securities listed on a national securities exchange, like the NYSE or the NASDAQ Global Market, is obligated to give advance notice of certain corporate actions to the exchange. Because that obligation is part of the listing agreement with the exchange, the issuer is well-aware of it. An issuer with publicly traded securities not listed on a national securities exchange, such as an issuer whose shares trade over the counter (a “non-exchange issuer”), is also obligated to give notice of certain corporate actions—even though the issuer did not enter into any agreement giving rise to the obligation, may not actually be supporting the trading of its securities and may not be aware of the obligation. The non-exchange issuer must give notice of certain corporate actions to the Financial Industry Regulatory Authority (“FINRA”) under the SEC’s Rule 10b-17 and FINRA’s Rule 6490.
SEC Rule 10b-17 requires any issuer with any class of publicly traded securities to give notice to FINRA (or, if the securities are listed, to the exchange on which they are listed) of any:
The notice must be given at least 10 days before the record date for the corporate action or, in the case of a rights or other subscription offering in which the 10 days’ notice is not practical, on or before the record date or the effective date of any registration statement for such offering (whichever is earlier). Rule 10b-17 describes the specific information required in such a notice.
FINRA Rule 6490, which was approved by the SEC last year, incorporates the notice requirements of Rule 10b-17 and also requires a non-exchange issuer to give advance notice of other corporate actions (which are defined in the rule as “Other Company-Related Actions”), including any:
The notice of any Other Company-Related Action must be given to FINRA at least 10 days before the effective date of the Other Company-Related Action. The notice to FINRA of any action specified in Rule 10b-17 or any Other Company-Related Action must be given electronically through a form promulgated by FINRA.
The notice to FINRA is not merely a notice, however. Under Rule 6490, it is characterized as a request “that FINRA process documentation” regarding the corporate action. FINRA has the authority to review the notice, with the corresponding “complete” documentation required to be submitted and the applicable fee (as described below), and determine whether the submitted items are acceptable or—if FINRA considers it “necessary for the protection of investors, the public interest and to maintain fair and orderly markets”—“deficient.” The circumstances in which FINRA may make such a deficiency determination are limited to the following:
Rule 6490 includes provisions regarding a notice of deficiency from FINRA to the non-exchange issuer and the non-exchange issuer’s right to appeal such a determination. Significantly, although the Rule indicates that FINRA will “make its best efforts” to process documentation, the Rule does not specify any time period within which FINRA must conduct its review and make and give notice of its determination.
Rule 6490 includes a schedule of fees payable to FINRA by a non-exchange issuer. The fee for an issuer’s timely notice of an action specified in Rule 10b-17 is $200, but the fee for a late notice of such an action (depending on how late it is) can be as much as $5,000. The fee for a change in trading symbol is $500.
OUR TAKE: In proposing to take any corporate action covered by Rule 6490, a non-exchange issuer should be aware of the obligation to notify FINRA and obtain FINRA’s review. A failure to comply with that obligation may violate Rule 10b-17, and a delay in compliance may result not only in additional fees to FINRA, but also in a delay in effecting the corporate action and possible confusion in the market.
The publications contained in this site do not constitute legal advice. Legal advice can only be given with knowledge of the client's specific facts. By putting these publications on our website we do not intend to create a lawyer-client relationship with the user. Materials may not reflect the most current legal developments, verdicts or settlements. This information should in no way be taken as an indication of future results.
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