In accordance with the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act), the Securities and Exchange Commission (SEC) today published a final rule amending Regulation FD to remove the exemption previously available in respect of disclosure made to credit rating agencies.
In order to prevent selective disclosure, Regulation FD requires public disclosure of any material nonpublic information that is provided by an issuer or those acting on its behalf to certain enumerated persons, including securities market professionals. In order to implement Section 939B of the Dodd-Frank Act, Regulation FD is being amended to remove Rule 100(b)(2)(iii) of Regulation FD, which generally exempts issuers from having to make such disclosure if the material nonpublic information is provided to a credit rating agency under certain circumstances. Given the Dodd-Frank Act imposes a 90-day deadline for this amendment, the amendment will be effective for disclosure made on or after its publication in the Federal Register.
As we discussed back in July, the Canadian Securities Administrators have published a proposed rule that would impose greater regulatory oversight for designated credit rating agencies and organizations under proposed National Instrument 25-101 Designated Rating Organizations. While specific amendments are not contemplated at this time, the CSA have asked for comments on whether it is still appropriate to exempt credit rating organizations from assuming statutory liability for their opinions by not requiring them to file an "expert's consent" where a rating is referred to in prospectus or other disclosure. The CSA is taking comments on proposed NI 25-101 until October 25, 2010