In re EXPRESS

UNITED STATES OF AMERICA 
Before the 
SECURITIES AND EXCHANGE COMMISSION 
 
SECURITIES EXCHANGE ACT OF 1934 
Release No. 101934 / December 17, 2024 
 
ACCOUNTING AND AUDITING ENFORCEMENT 
Release No. 4548 / December 17, 2024 
 
ADMINISTRATIVE PROCEEDING 
File No. 3-22362 
 
 
In the Matter of 
 
EXPRESS, INC., 
 
Respondent. 
 
 
ORDER INSTITUTING CEASE-AND-DESIST 
PROCEEDINGS PURSUANT TO SECTION 
21C OF THE SECURITIES EXCHANGE ACT 
OF 1934, MAKING FINDINGS, AND 
IMPOSING A CEASE-AND-DESIST ORDER 
  
 
I. 
 
 The Securities and Exchange Commission (“Commission”) deems it appropriate that cease-
and-desist proceedings be, and hereby are, instituted pursuant to Section 21C of the Securities 
Exchange Act of 1934 (“Exchange Act”), against Express, Inc. (“Express” or “Respondent”). 
 
II. 
 
 In anticipation of the institution of these proceedings, Respondent has submitted an Offer 
of Settlement (the “Offer”) which the Commission has determined to accept. Solely for the purpose 
of these proceedings and any other proceedings brought by or on behalf of the Commission, or to 
which the Commission is a party, and without admitting or denying the findings herein, except as 
to the Commission’s jurisdiction over it and the subject matter of these proceedings, which are 
admitted, Respondent consents to the entry of this Order Instituting Cease-And-Desist Proceedings 
Pursuant to Section 21C of the Securities Exchange Act of 1934, Making Findings, and Imposing a 
Cease-and-Desist Order (“Order”), as set forth below.   
 
III. 
 
 On the basis of this Order and Respondent’s Offer, the Commission finds
1
 that: 
 
 
1
  The findings herein are made pursuant to Respondent's Offer of Settlement and are not 
binding on any other person or entity in this or any other proceeding. 

 
 2 
Summary 
 
1. This matter arises from Express, Inc.’s failure to disclose in its definitive proxy 
statements $979,269 worth of certain perquisites and personal benefits it paid on behalf of its Chief 
Executive Officer (the “CEO”), and member of its board of directors, for its fiscal years 2019, 
2020, and 2021. Most of the undisclosed perquisites and personal benefits were costs associated 
with the CEO’s authorized use of chartered private aircraft. Express did not have adequate 
controls, policies, or procedures in place to effectively identify and analyze potential compensation 
for disclosure. In connection with this conduct, Express violated Sections 13(a) and 14(a) of the 
Exchange Act and Rules 12b-20, 13a-1, 13a-15(a), 14a-3, and 14a-9 thereunder. 
 
Respondent 
 
2. Express, Inc. is a Delaware corporation headquartered in Columbus, Ohio. The 
company is a multi-brand American fashion retailer that operates online stores as well as physical 
stores. Express’s common stock traded on the New York Stock Exchange (“NYSE”) until March 
25, 2024, when it was delisted. It was then quoted on the OTC Pink Open Market under the ticker 
symbol “EXPR.” On April 22, 2024, Express and its affiliated subsidiaries filed for Chapter 11 
bankruptcy in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy 
Action”). On April 24, 2024, Express filed a Form 15 to terminate its registration of its common 
stock under Section 12(g) of the Exchange Act and to immediately suspend its duty to file periodic 
reports with the Commission. On June 25, 2024, a group of investors acquired the majority of 
Express's retail operating assets in the Bankruptcy Action. 
 
Background 
 
3. Section 14(a) of the Exchange Act makes it unlawful to solicit any proxy in respect 
of any security (other than an exempted security) registered pursuant to Section 12 of the Exchange 
Act in contravention of such rules and regulations as the Commission may prescribe. Rule 14a-3 
prohibits issuers with securities registered pursuant to Section 12 of the Exchange Act from 
soliciting proxies without furnishing proxy statements containing the information specified in 
Schedule 14A, including executive compensation disclosures pursuant to Item 402 of Regulation 
S-K. Item 402 of Regulation S-K requires disclosure of the total value of all perquisites and other 
personal benefits provided to named executive officers who receive at least $10,000 worth of such 
items in a given year. See Item 402(c)(2)(ix)(A). Item 402 of Regulation S-K also requires 
identification of all perquisites and personal benefits by type, and quantification of any perquisite 
or personal benefit that exceeds the greater of $25,000 or 10% of total perquisites. See Instruction 4 
for Item 402(c)(2)(ix). 
 
4. In 2006, the Commission adopted amendments to executive compensation 
disclosure rules, including Item 402 of Regulation S-K. See Commission’s Executive 
Compensation and Related Person Disclosure Final Rule adopting release, Release Nos. 33-
8732A; 34-54302A; IC-27444A; File No. S7-03-06 (August 29, 2006) (the “Adopting Release”). 
According to the Adopting Release, “an item is not a perquisite or personal benefit,” and does not 

 
 3 
need to be reported, “if it is integrally and directly related to the performance of the executive’s 
duties. Otherwise, an item is a perquisite or personal benefit if it confers a direct or indirect benefit 
that has a personal aspect, without regard to whether it may be provided for some business reason 
or for the convenience of the company, unless it is generally available on a non-discriminatory 
basis to all employees.” The Adopting Release also states that “the concept of a benefit that is 
‘integrally and directly related’ to job performance is a narrow one,” which “draws a critical 
distinction between an item that a company provides because the executive needs it to do the job, 
making it integrally and directly related to the performance of duties, and an item provided for 
some other reason, even where that other reason can involve both company benefit and personal 
benefit.” 
 
5. According to the Adopting Release, even where the company “has determined that 
an expense is an ‘ordinary’ or ‘necessary’ business expense for tax or other purposes or that an 
expense is for the benefit or convenience of the company,” that determination “is not responsive to 
the inquiry as to whether the expense provides a perquisite or other personal benefit for disclosure 
purposes.” Indeed, “business purpose or convenience does not affect the characterization of an 
item as a perquisite or personal benefit where it is not integrally and directly related to the 
performance by the executive of his or her job.” 
 
Facts 
 
6. Contrary to Item 402 of Regulation S-K and the Commission’s guidance in the 
Adopting Release, Express’s system for identifying, tracking, and calculating perquisites 
incorrectly applied a standard whereby a business purpose would be sufficient to determine that 
certain items were not perquisites or personal benefits that required disclosure. 
 
7. In definitive proxy statements disclosing executive compensation paid for fiscal 
years 2019, 2020, and 2021, which were filed in 2020 through 2022, Express disclosed “All Other 
Compensation” for the CEO in the amounts of: $33,068 for fiscal year 2019, excluding $147,704 
for relocation benefits; $4,942 for fiscal year 2020; and $16,360 for fiscal year 2021, excluding 
$277,358 for vesting of a one-time restricted cash award. The disclosed “All Other Compensation” 
consisted of retirement contributions and insurance premiums for each year, $32,000 for one 
private flight for the CEO’s relocation for fiscal year 2019, and $2,895 worth of private aircraft 
usage by the CEO’s family members for fiscal year 2021. 
 
8. However, these same definitive proxy statements failed to disclose $979,269 worth 
of perquisites and personal benefits provided to the CEO, thereby understating the “All Other 
Compensation” portion of its Named Executive Officers’ compensation by an average of 94% over 
the three fiscal years 2019, 2020 and 2021. Express incorrectly viewed the CEO’s business 
expenses to include expenses associated with the CEO’s personal flights, including transportation, 
meals, and hotel. Express paid these expenses but did not disclose these expenses as perquisites. 
 

 
 4 
9. Express incorporated its definitive proxy statements disclosing executive 
compensation paid for fiscal years 2019, 2020, and 2021 into its Forms 10-K annual reports by 
reference. 
 
10. On April 28, 2023, Express filed its fiscal year 2022 proxy statement, which, 
among other things, provided revised disclosures regarding perquisites and personal benefits 
provided to the CEO for fiscal years 2020 and 2021. Express also disclosed that the CEO 
voluntarily reimbursed the company approximately $454,000 for private air travel and expenses 
that were determined to be perquisites or personal expenses. 
 
Violations 
 
11. Section 14(a) of the Exchange Act makes it unlawful to solicit any proxy with 
respect to any security (other than an exempted security) registered pursuant to Section 12 of the 
Exchange Act in contravention of such rules and regulations as the Commission may prescribe. 
Rule 14a-3 prohibits issuers from soliciting proxies without furnishing proxy statements containing 
the information specified by Schedule 14A, including executive compensation disclosures pursuant 
to Item 402 of Regulation S-K. Item 402 of Regulation S-K requires disclosure of the total value of 
all perquisites and other personal benefits provided to named executive officers who receive at 
least $10,000 worth of such items in a given year. Item 402 of Regulation S-K also requires 
disclosure of all perquisites and personal benefits by type, and specific identification of any 
perquisite or personal benefit that exceeds the greater of $25,000 or 10% of the total perquisites. 
Rule 14a-9 prohibits the use of proxy statements containing materially false or misleading 
statements or materially misleading omissions. Misstatements and omissions are material under 
Rule 14a-9 if they would alter the “total mix of information” considered by a shareholder in 
making a voting decision. TSC Indus., Inc. v. Northway, 426 U.S. 438, 449 (1976). Proxy 
violations do not require a showing of scienter; negligence is sufficient. See, e.g., Gerstle v. 
Gamble-Skogmo, Inc., 478 F.2d 1281, 1300-01 (2d Cir. 1973); Sirota v. Econo-Car Intern., Inc., 
61 F.R.D. 604, 607 (S.D.N.Y. Jan 15, 1974). As a result of the conduct described above, Express 
violated Section 14(a) of the Exchange Act and Rules 14a-3 and 14a-9 thereunder. 
 
12. Section 13(a) of the Exchange Act and Rule 13a-1 thereunder require every issuer 
of a security registered pursuant to Section 12 of the Exchange Act to file with the Commission, 
among other things, annual reports as the Commission may require. The Commission need not 
prove scienter to establish a violation of Section 13(a) of the Exchange Act (or Exchange Act 
Rules 12b-20 and 13a-1). See, e.g., SEC v. McNulty, 137 F.3d 732, 740-41 (2d Cir. 1998). As a 
result of its incorporation of deficient proxy statements by reference in its annual reports, Express 
violated Section 13(a) of the Exchange Act and Rule 13a-1 thereunder. 
 
13. As a result of the conduct described above, Express violated Rule 12b-20 under the 
Exchange Act, which requires that, in addition to the information expressly required to be included 
in a statement or report filed with the Commission, there shall be added such further material 
information, if any, as may be necessary to make the required statements, in light of the 
circumstances under which they are made, not misleading. 

 
 5 
 
14. Rule 13a-15(a) of the Exchange Act requires issuers to maintain disclosure controls 
and procedures. Rule 13a-15(e) defines “disclosure controls and procedures” to mean “controls and 
other procedures of an issuer that are designed to ensure that information required to be disclosed 
by the issuer in the reports that it files or submits under the Act (15 U.S.C. 78a et seq.) is recorded, 
processed, summarized and reported, within the time periods specified in the Commission's rules 
and forms.” Rule 13a-15(e) explains that “[d]isclosure controls and procedures include, without 
limitation, controls and procedures designed to ensure that information required to be disclosed by 
an issuer in the reports that it files or submits under the Act is accumulated and communicated to 
the issuer's management, including its principal executive and principal financial officers, or 
persons performing similar functions, as appropriate to allow timely decisions regarding required 
disclosure.” By failing to maintain policies, procedures, or controls designed to ensure that all 
potential perquisites and personal benefits are identified and analyzed for complete and accurate 
disclosure in its proxy statements, Express violated Rule 13a-15(a). 
 
Express’s Self-Reporting, Cooperation and Remedial Efforts 
 
15. In determining to accept the Offer, the Commission considered the 
following:  
 
a. After learning of potential misconduct, Express acted promptly to 
ensure that outside counsel conducted an internal investigation. Before completing its 
internal investigation, Express self-reported to the Commission staff the failure to 
disclose perquisites referred to herein and other conduct potentially implicating the 
federal securities laws. 
 
b. Express cooperated with the Commission’s investigation, when it 
provided to Commission staff facts developed through the internal investigation, 
compilations of relevant documents, information, and data. 
 
c. After it self-reported, Express implemented remedial measures 
designed to ensure compliance with Item 402 of Regulation S-K and Commission 
guidance. Express also made disclosures in its fiscal year 2022 proxy statement 
concerning expenses it had identified that constituted undisclosed perquisites, and made 
additional disclosures thereafter. 
 
  

 
 6 
IV. 
 
 In view of the foregoing, the Commission deems it appropriate to impose the sanctions 
agreed to in Respondent’s Offer. 
 
 Accordingly, it is hereby ORDERED that: 
 
A. Pursuant to Section 21C of the Exchange Act, Respondent cease and desist from 
committing or causing any violations and any future violations of Sections 13(a) and 14(a) of the 
Exchange Act and Rules 12b-20, 13a-1, 13a-15(a), 14a-3 and 14a-9 thereunder. 
 
B. Respondent acknowledges that the Commission is not imposing a civil penalty 
based in part upon its cooperation in a Commission investigation. If at any time following the entry 
of the Order, the Division of Enforcement (“Division”) obtains information indicating that 
Respondent knowingly provided materially false or misleading information or materials to the 
Commission, or in a related proceeding, the Division may, at its sole discretion and with prior 
notice to the Respondent, petition the Commission to reopen this matter and seek an order directing 
that the Respondent pay a civil money penalty. Respondent may contest by way of defense in any 
resulting administrative proceeding whether it knowingly provided materially false or misleading 
information, but may not: (1) contest the findings in the Order; or (2) assert any defense to liability 
or remedy, including, but not limited to, any statute of limitations defense. 
 
 By the Commission. 
 
 
 
Vanessa A. Countryman 
Secretary 
 
 

UNITED STATES OF AMERICA 

Before the 

SECURITIES AND EXCHANGE COMMISSION 

 

SECURITIES EXCHANGE ACT OF 1934 

Release No. 101934 / December 17, 2024 

 

ACCOUNTING AND AUDITING ENFORCEMENT 

Release No. 4548 / December 17, 2024 

 

ADMINISTRATIVE PROCEEDING 

File No. 3-22362 

 

 

In the Matter of 

 

EXPRESS, INC., 

 

Respondent. 

 

 

ORDER INSTITUTING CEASE-AND-DESIST 

PROCEEDINGS PURSUANT TO SECTION 

21C OF THE SECURITIES EXCHANGE ACT 

OF 1934, MAKING FINDINGS, AND 

IMPOSING A CEASE-AND-DESIST ORDER 

  

 

I. 

 

 The Securities and Exchange Commission (“Commission”) deems it appropriate that cease-

and-desist proceedings be, and hereby are, instituted pursuant to Section 21C of the Securities 

Exchange Act of 1934 (“Exchange Act”), against Express, Inc. (“Express” or “Respondent”). 

 

II. 

 

 In anticipation of the institution of these proceedings, Respondent has submitted an Offer 

of Settlement (the “Offer”) which the Commission has determined to accept. Solely for the purpose 

of these proceedings and any other proceedings brought by or on behalf of the Commission, or to 

which the Commission is a party, and without admitting or denying the findings herein, except as 

to the Commission’s jurisdiction over it and the subject matter of these proceedings, which are 

admitted, Respondent consents to the entry of this Order Instituting Cease-And-Desist Proceedings 

Pursuant to Section 21C of the Securities Exchange Act of 1934, Making Findings, and Imposing a 

Cease-and-Desist Order (“Order”), as set forth below.   

 

III. 

 

 On the basis of this Order and Respondent’s Offer, the Commission finds1 that: 

 

 
1  The findings herein are made pursuant to Respondent's Offer of Settlement and are not 

binding on any other person or entity in this or any other proceeding. 



 

 2 

Summary 

 

1. This matter arises from Express, Inc.’s failure to disclose in its definitive proxy 

statements $979,269 worth of certain perquisites and personal benefits it paid on behalf of its Chief 

Executive Officer (the “CEO”), and member of its board of directors, for its fiscal years 2019, 

2020, and 2021. Most of the undisclosed perquisites and personal benefits were costs associated 

with the CEO’s authorized use of chartered private aircraft. Express did not have adequate 

controls, policies, or procedures in place to effectively identify and analyze potential compensation 

for disclosure. In connection with this conduct, Express violated Sections 13(a) and 14(a) of the 

Exchange Act and Rules 12b-20, 13a-1, 13a-15(a), 14a-3, and 14a-9 thereunder. 

 

Respondent 

 

2. Express, Inc. is a Delaware corporation headquartered in Columbus, Ohio. The 

company is a multi-brand American fashion retailer that operates online stores as well as physical 

stores. Express’s common stock traded on the New York Stock Exchange (“NYSE”) until March 

25, 2024, when it was delisted. It was then quoted on the OTC Pink Open Market under the ticker 

symbol “EXPR.” On April 22, 2024, Express and its affiliated subsidiaries filed for Chapter 11 

bankruptcy in the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy 

Action”). On April 24, 2024, Express filed a Form 15 to terminate its registration of its common 

stock under Section 12(g) of the Exchange Act and to immediately suspend its duty to file periodic 

reports with the Commission. On June 25, 2024, a group of investors acquired the majority of 

Express's retail operating assets in the Bankruptcy Action. 

 

Background 

 

3. Section 14(a) of the Exchange Act makes it unlawful to solicit any proxy in respect 

of any security (other than an exempted security) registered pursuant to Section 12 of the Exchange 

Act in contravention of such rules and regulations as the Commission may prescribe. Rule 14a-3 

prohibits issuers with securities registered pursuant to Section 12 of the Exchange Act from 

soliciting proxies without furnishing proxy statements containing the information specified in 

Schedule 14A, including executive compensation disclosures pursuant to Item 402 of Regulation 

S-K. Item 402 of Regulation S-K requires disclosure of the total value of all perquisites and other 

personal benefits provided to named executive officers who receive at least $10,000 worth of such 

items in a given year. See Item 402(c)(2)(ix)(A). Item 402 of Regulation S-K also requires 

identification of all perquisites and personal benefits by type, and quantification of any perquisite 

or personal benefit that exceeds the greater of $25,000 or 10% of total perquisites. See Instruction 4 

for Item 402(c)(2)(ix). 

 

4. In 2006, the Commission adopted amendments to executive compensation 

disclosure rules, including Item 402 of Regulation S-K. See Commission’s Executive 

Compensation and Related Person Disclosure Final Rule adopting release, Release Nos. 33-

8732A; 34-54302A; IC-27444A; File No. S7-03-06 (August 29, 2006) (the “Adopting Release”). 

According to the Adopting Release, “an item is not a perquisite or personal benefit,” and does not 



 

 3 

need to be reported, “if it is integrally and directly related to the performance of the executive’s 

duties. Otherwise, an item is a perquisite or personal benefit if it confers a direct or indirect benefit 

that has a personal aspect, without regard to whether it may be provided for some business reason 

or for the convenience of the company, unless it is generally available on a non-discriminatory 

basis to all employees.” The Adopting Release also states that “the concept of a benefit that is 

‘integrally and directly related’ to job performance is a narrow one,” which “draws a critical 

distinction between an item that a company provides because the executive needs it to do the job, 

making it integrally and directly related to the performance of duties, and an item provided for 

some other reason, even where that other reason can involve both company benefit and personal 

benefit.” 

 

5. According to the Adopting Release, even where the company “has determined that 

an expense is an ‘ordinary’ or ‘necessary’ business expense for tax or other purposes or that an 

expense is for the benefit or convenience of the company,” that determination “is not responsive to 

the inquiry as to whether the expense provides a perquisite or other personal benefit for disclosure 

purposes.” Indeed, “business purpose or convenience does not affect the characterization of an 

item as a perquisite or personal benefit where it is not integrally and directly related to the 

performance by the executive of his or her job.” 

 

Facts 

 

6. Contrary to Item 402 of Regulation S-K and the Commission’s guidance in the 

Adopting Release, Express’s system for identifying, tracking, and calculating perquisites 

incorrectly applied a standard whereby a business purpose would be sufficient to determine that 

certain items were not perquisites or personal benefits that required disclosure. 

 

7. In definitive proxy statements disclosing executive compensation paid for fiscal 

years 2019, 2020, and 2021, which were filed in 2020 through 2022, Express disclosed “All Other 

Compensation” for the CEO in the amounts of: $33,068 for fiscal year 2019, excluding $147,704 

for relocation benefits; $4,942 for fiscal year 2020; and $16,360 for fiscal year 2021, excluding 

$277,358 for vesting of a one-time restricted cash award. The disclosed “All Other Compensation” 

consisted of retirement contributions and insurance premiums for each year, $32,000 for one 

private flight for the CEO’s relocation for fiscal year 2019, and $2,895 worth of private aircraft 

usage by the CEO’s family members for fiscal year 2021. 

 

8. However, these same definitive proxy statements failed to disclose $979,269 worth 

of perquisites and personal benefits provided to the CEO, thereby understating the “All Other 

Compensation” portion of its Named Executive Officers’ compensation by an average of 94% over 

the three fiscal years 2019, 2020 and 2021. Express incorrectly viewed the CEO’s business 

expenses to include expenses associated with the CEO’s personal flights, including transportation, 

meals, and hotel. Express paid these expenses but did not disclose these expenses as perquisites. 

 



 

 4 

9. Express incorporated its definitive proxy statements disclosing executive 

compensation paid for fiscal years 2019, 2020, and 2021 into its Forms 10-K annual reports by 

reference. 

 

10. On April 28, 2023, Express filed its fiscal year 2022 proxy statement, which, 

among other things, provided revised disclosures regarding perquisites and personal benefits 

provided to the CEO for fiscal years 2020 and 2021. Express also disclosed that the CEO 

voluntarily reimbursed the company approximately $454,000 for private air travel and expenses 

that were determined to be perquisites or personal expenses. 

 

Violations 

 

11. Section 14(a) of the Exchange Act makes it unlawful to solicit any proxy with 

respect to any security (other than an exempted security) registered pursuant to Section 12 of the 

Exchange Act in contravention of such rules and regulations as the Commission may prescribe. 

Rule 14a-3 prohibits issuers from soliciting proxies without furnishing proxy statements containing 

the information specified by Schedule 14A, including executive compensation disclosures pursuant 

to Item 402 of Regulation S-K. Item 402 of Regulation S-K requires disclosure of the total value of 

all perquisites and other personal benefits provided to named executive officers who receive at 

least $10,000 worth of such items in a given year. Item 402 of Regulation S-K also requires 

disclosure of all perquisites and personal benefits by type, and specific identification of any 

perquisite or personal benefit that exceeds the greater of $25,000 or 10% of the total perquisites. 

Rule 14a-9 prohibits the use of proxy statements containing materially false or misleading 

statements or materially misleading omissions. Misstatements and omissions are material under 

Rule 14a-9 if they would alter the “total mix of information” considered by a shareholder in 

making a voting decision. TSC Indus., Inc. v. Northway, 426 U.S. 438, 449 (1976). Proxy 

violations do not require a showing of scienter; negligence is sufficient. See, e.g., Gerstle v. 

Gamble-Skogmo, Inc., 478 F.2d 1281, 1300-01 (2d Cir. 1973); Sirota v. Econo-Car Intern., Inc., 

61 F.R.D. 604, 607 (S.D.N.Y. Jan 15, 1974). As a result of the conduct described above, Express 

violated Section 14(a) of the Exchange Act and Rules 14a-3 and 14a-9 thereunder. 

 

12. Section 13(a) of the Exchange Act and Rule 13a-1 thereunder require every issuer 

of a security registered pursuant to Section 12 of the Exchange Act to file with the Commission, 

among other things, annual reports as the Commission may require. The Commission need not 

prove scienter to establish a violation of Section 13(a) of the Exchange Act (or Exchange Act 

Rules 12b-20 and 13a-1). See, e.g., SEC v. McNulty, 137 F.3d 732, 740-41 (2d Cir. 1998). As a 

result of its incorporation of deficient proxy statements by reference in its annual reports, Express 

violated Section 13(a) of the Exchange Act and Rule 13a-1 thereunder. 

 

13. As a result of the conduct described above, Express violated Rule 12b-20 under the 

Exchange Act, which requires that, in addition to the information expressly required to be included 

in a statement or report filed with the Commission, there shall be added such further material 

information, if any, as may be necessary to make the required statements, in light of the 

circumstances under which they are made, not misleading. 



 

 5 

 

14. Rule 13a-15(a) of the Exchange Act requires issuers to maintain disclosure controls 

and procedures. Rule 13a-15(e) defines “disclosure controls and procedures” to mean “controls and 

other procedures of an issuer that are designed to ensure that information required to be disclosed 

by the issuer in the reports that it files or submits under the Act (15 U.S.C. 78a et seq.) is recorded, 

processed, summarized and reported, within the time periods specified in the Commission's rules 

and forms.” Rule 13a-15(e) explains that “[d]isclosure controls and procedures include, without 

limitation, controls and procedures designed to ensure that information required to be disclosed by 

an issuer in the reports that it files or submits under the Act is accumulated and communicated to 

the issuer's management, including its principal executive and principal financial officers, or 

persons performing similar functions, as appropriate to allow timely decisions regarding required 

disclosure.” By failing to maintain policies, procedures, or controls designed to ensure that all 

potential perquisites and personal benefits are identified and analyzed for complete and accurate 

disclosure in its proxy statements, Express violated Rule 13a-15(a). 

 

Express’s Self-Reporting, Cooperation and Remedial Efforts 

 

15. In determining to accept the Offer, the Commission considered the 

following:  

 

a. After learning of potential misconduct, Express acted promptly to 

ensure that outside counsel conducted an internal investigation. Before completing its 

internal investigation, Express self-reported to the Commission staff the failure to 

disclose perquisites referred to herein and other conduct potentially implicating the 

federal securities laws. 

 

b. Express cooperated with the Commission’s investigation, when it 

provided to Commission staff facts developed through the internal investigation, 

compilations of relevant documents, information, and data. 

 

c. After it self-reported, Express implemented remedial measures 

designed to ensure compliance with Item 402 of Regulation S-K and Commission 

guidance. Express also made disclosures in its fiscal year 2022 proxy statement 

concerning expenses it had identified that constituted undisclosed perquisites, and made 

additional disclosures thereafter. 

 

  



 

 6 

IV. 

 

 In view of the foregoing, the Commission deems it appropriate to impose the sanctions 

agreed to in Respondent’s Offer. 

 

 Accordingly, it is hereby ORDERED that: 

 

A. Pursuant to Section 21C of the Exchange Act, Respondent cease and desist from 

committing or causing any violations and any future violations of Sections 13(a) and 14(a) of the 

Exchange Act and Rules 12b-20, 13a-1, 13a-15(a), 14a-3 and 14a-9 thereunder. 

 

B. Respondent acknowledges that the Commission is not imposing a civil penalty 

based in part upon its cooperation in a Commission investigation. If at any time following the entry 

of the Order, the Division of Enforcement (“Division”) obtains information indicating that 

Respondent knowingly provided materially false or misleading information or materials to the 

Commission, or in a related proceeding, the Division may, at its sole discretion and with prior 

notice to the Respondent, petition the Commission to reopen this matter and seek an order directing 

that the Respondent pay a civil money penalty. Respondent may contest by way of defense in any 

resulting administrative proceeding whether it knowingly provided materially false or misleading 

information, but may not: (1) contest the findings in the Order; or (2) assert any defense to liability 

or remedy, including, but not limited to, any statute of limitations defense. 

 

 By the Commission. 

 

 

 

Vanessa A. Countryman 

Secretary