March 27, 2015

Proxy Statements: Pru Includes Lead Director Video

Last year, I blogged about how to file video on EDGAR – and predicted that the use of video in SEC filings would explode over the next decade as a disclosure tool. More recently, I blogged that I thought we would see more video during this proxy season. Two days ago, Prudential filed its proxy statement (here’s the interactive version) – and lo and behold, it includes this 5-minute video from the company’s lead director! As required, the video’s script was filed as additional soliciting material with the SEC.

I haven’t had a chance to put together my own vid of Pru’s cool things like last year as I’m flying out to Taiwan this morn for spring break, but here’s a list of some cool things in Pru’s proxy this year:

– Two letters to shareholders; a short one from the CEO/chair & a longer one from the lead director (which links to the lead director’s video)

– Graphic on board diversity

– Graphic on board nominee tenure

– Graphic on board evaluation that is done with the help of an independent third party

– Box on board engagement that highlights the adoption of a clawback and proxy access through engagement efforts

– Boxes on environmental & sustainability as well as corporate community initiatives

– Boxes on good governance practices including one called “Paper or bytes? Using resources responsibly”

– Box on the factors used for determining to reappoint independent auditor

– Box on formulaic framework for incentive programs and how Pru significantly removed discretion from its programs

– Box on why they use AOI versus GAAP

– Boxes that show the formulas for all of their plans

– Box on what is impacting the CEO’s pension accrual

– Back front cover highlights the work & employment programs they are involved with the Veteran community

– Back cover graphically shows Pru’s shareholder engagement cycle

– Once again offering a tree or bag if registered holders vote (planted over 550k trees so far under this program)

– Highlights a $5 Starbucks card incentive to registered shareholders if they combine their registered account & brokerage account. You can get a sustainable bag, plant a tree & get a cup of coffee if you vote & consolidate!

OECD’s “Trust and Business Project”

The OECD has numerous principles that promote responsible business conduct, such as the “Principles on Corporate Governance” and the “Anti-Bribery Convention.” Now, the OECD is undertaking a large “Trust and Business Project” – and as part of its work has launched an online survey on “Business Integrity and Corporate Governance.” Please fill out their survey…

Senate Committee Mulls Changes in Nonqualified Deferred Compensation Rules

Here’s news from this Towers Watson blog; here’s the intro:

As part of a series of hearings on tax reform, the Senate Finance Committee recently held a hearing on the issue of fairness in the tax code. In connection with the hearing, the committee’s ranking Democrat, Sen. Ron Wyden (D-OR), released a report on tax avoidance strategies that outlines possible recommendations for reforming nonqualified deferred compensation (NQDC) as part of an expected tax reform proposal. In his opening statement, Sen. Wyden noted that the report is intended to “shed some light on some of the most egregious tax loopholes around.”

– Broc Romanek

March 26, 2015

SEC Adopts Reg A+

Yesterday, the SEC adopted rules and forms under Section 3(b) of the Securities Act – known as “Reg A+” – as required by Section 401 of the JOBS Act. The 453-page adopting release was posted last night (so no law firm memos have surfaced yet; when they do, we’ll post them in our “Regulation A/A+” Practice Area). Stinson Leonard Street’s Steve Quinlivan and Cooley’s Cydney Posner have blogs about it – as well as this blog from MoFo’s Anna Pinedo, Dave Lynn and Marty Dunn, an excerpt of which is below:

The SEC’s proposed rules already had provided a very practical format for private issuers seeking to raise capital. The proposing release generated mixed comments, with practitioners largely supporting the SEC’s proposal, and others raising concerns about the pre-emption of state securities review.

From today’s open meeting, and without having yet reviewed the final rules, it sounds like the SEC has taken an approach that seeks to promote capital formation, while preserving the disclosure requirements (both initial disclosure requirements and periodic reporting requirements for larger offerings) and other investor protection measures that were central to the proposing release.

The final rule establishes two tiers: Tier 1, for offerings that raise up to $20 million in proceeds in a 12-month period, including no more than $6 million of securities sold on behalf of selling securityholders, and a Tier 2, for offerings that raise up to $50 million in proceeds, including no more than $15 million of securities sold on behalf of selling securityholders. This will permit smaller and emerging companies to have an opportunity to raise substantial capital. The $50 million limit is, by statute, subject to periodic review by the SEC to determine whether the threshold is reasonable. The final rule also will include a limitation on the overall amount of securities that may be sold on behalf of selling securityholders. The exemption will not be available to certain bad actors and to other entities, such as investment companies.

The final rule, consistent with the proposed rule, modernizes the offering process by, for example, requiring that Regulation A+ offering statements be filed on EDGAR. The final rule incorporates a confidential submission process, similar to that available to EGCs relying on the JOBS Act, as well as the use of test-the-waters communications. Consistent with the proposed rule, a Tier 2 offering will be subject to rigorous disclosure standards, including a requirement to include audited financial statements, as well as to an investor limit. Issuers conducting Tier 2 offerings will also be subject to a requirement to file annual, semiannual and current event reports.

Most important to the success of Tier 2 offerings, Tier 2 offerings, given the detailed disclosure requirements and SEC review, will not be subject to state securities review. In addition, the final rule provides for a Tier 2 issuer to concurrently file a short-form Form 8-A to register a class of securities under Exchange Act Section 12(g) or 12(b)—this means that a Tier 2 issuer will, if it chooses to do so, be able to conduct a Regulation A+ offering and list on a national securities exchange.

B vs. Benefit Corp: Etsy Files as B Corp for Underwritten IPO

As noted in this Cooley blog and Entrepreneur article, Etsy has filed for an IPO led by first tier underwriters as a corporation certified by B Labs. See its Form S-1.

Note there is a difference between being a public benefit corporation and being a corporation certified by B Labs. B corps or B corporations are the terms used for companies certified by B Labs. Delaware public benefit corporations are referred to as “benefit corporations” as a shorthand, but not as B Corps.

The B Labs certification is not really all that significant – as it essentially puts Etsy in the same category as other socially aware companies (eg. Ben & Jerry’s). I found it more interesting that Etsy did not become a “public benefit corporation” under Delaware law, which truly would have been remarkable (and likely posed marketing challenges with investors).

Cybersecurity: How to Handle Questionnaires from Shareholders

As I scramble to pack for my spring break trip to Taiwan, I came across this interesting blog from McKenna Long’s Bill Ide & Crystal Clark about how companies should react to questionnaires being sent by some pension funds to companies about their board oversight of cybersecurity preparedness. Here’s an excerpt:

Certain pension funds have sent extensive, joint questionnaires to directors of public companies seeking detailed information as to the cybersecurity oversight systems and controls in place. Our view is that until the SEC provides further guidance, companies will generally find it in their interest to respond to such shareholder inquiries. Such disclosures, however, should be kept at a high level to demonstrate appropriate awareness and attention, while not disclosing specifics that could compromise the company’s cybersecurity strategy or raise issues under Regulation FD.

– Broc Romanek

March 25, 2015

SCOTUS’ Omnicare: Pleading Standard for Section 11 Clarified

We’ll be posting the oodles of memos on yesterday’s Omnicare decision by the Supreme Court in our “Securities Litigation” Practice Area. Here’s a recap from this Proskauer memo (& see this Cooley blog):

The U.S. Supreme Court ruled today that a statement of opinion in a registration statement cannot be actionable as a misstatement of fact under § 11 of the Securities Act of 1933 if the issuer actually believed the opinion expressed. However, the statement of opinion can be actionable on an omissions theory if the registration statement omits material facts about the issuer’s inquiry into, or knowledge about, the statement of opinion and if those omitted facts conflict with what a reasonable investor would have expected from a contextual reading of the statement of opinion. The decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund could lead to additional litigation about whether statements of opinion are actionable, but the Court imposed some important constraints on investors’ ability to assert § 11 claims predicated on statements of opinion.

SEC Chair White Addresses Status of Rulemakings (Vaguely)

Yesterday, SEC Chair White testified about the SEC’s budget before the House Financial Services Committee. Although the testimony included a rundown on pending – and upcoming – rulemakings, there really wasn’t much in the way of when things will actually happen (and no mention of crowdfunding), as reflected by this excerpt:

Corporation Finance, along with other Commission staff, continues to work to implement provisions of the Dodd-Frank Act relating to executive compensation matters and payments by resource extraction issuers. In addition, the staff is currently conducting the review of the accredited investor definition as it relates to natural persons as mandated by Section 413 of the Dodd-Frank Act.

Check out my blog about pressure that 58 House Dems are putting on the SEC to adopt the pay ratio rules. And this article notes the SEC has spent $2.75 million so far to write, enforce and litigate the conflict mineral rules…

Status: SEC Enforcement’s Ability to Get Defendants to Admit Guilt

Related to SEC Chair White’s speeches over the past few years about the criteria that the SEC will consider, this NY Times article gives a nice recap of how the SEC’s Enforcement program has been doing in getting defendants to admit guilt when settling an action. Here’s an excerpt:

The program represented a seismic shift in approach, but in practice it is still in its early stages. After two years, the S.E.C. has generated admissions of culpability in 18 different cases involving 19 companies and 10 individuals. Given the hundreds of settlements struck by the S.E.C. over this time, it is clear that most of the time defendants are still being allowed to settle without admitting to or denying the agency’s allegations.

S.E.C. officials say this age-old practice saves it from having to bring — and possibly lose — a case in court, allows the agency to return money to victims more quickly and conserves resources for other investigations. Nevertheless, S.E.C. enforcement officials say they believe the policy change has sent a crucial message. “Requiring admissions adds a powerful tool in appropriate cases, and it has been extremely successful and positive,” Mr. Ceresney said in a recent interview. “In cases where we have obtained admissions, it adds accountability, and that has been very important.” In determining what kinds of cases are likely to be subject to such treatment, the S.E.C. has given itself wide latitude.

Meanwhile, following up on my blog from a few days ago about the battle over ALJ use, SEC Enforcement Director Ceresney defended the SEC’s use of administrative law judges in a hearing of the House Financial Services Committee (see this SIFMA summary of the hearing and this article)…

– Broc Romanek

March 24, 2015

Analyst Research: Comparison of FINRA’s Proposed Equity & Debt Rules

This MoFo blog by Nilene Evans & Stephanie Uhrig is useful:

In November 2014, and further amended in February 2015, FINRA announced a comprehensive revision of the equity research rule currently numbered as NASD Rule 2711 and proposed a debt research rule modeled on the equity research rule. The equity research rule would be numbered FINRA Rule 2241 and the debt research rule would be numbered FINRA Rule 2242. The amended rule proposals can be found here: SR-FINRA-2014-047 (equity) and SR-FINRA-2014-048 (debt). The structures of the two rules are very similar but there are important differences. To guide your analysis of the two rules, here is a link to a line-by-line comparison of the two rules.

Proposed: The “Delaware Rapid Arbitration Act”

This proposed legislation – known as the “Delaware Rapid Arbitration Act” – is working its way through the Delaware General Assembly and would enable Delaware entities to engage in a rapid and efficient form of arbitration. It’s expected that the legislation will become law next month (with an effective date 30 days later). Here’s a set of FAQs on the bill – and a blog about it from the Delaware Division of Corporations.

March-April Issue: Deal Lawyers Print Newsletter

This March-April issue of the Deal Lawyers print newsletter is done and includes articles on:

– Five Day Tender Offers: What Can Market Participants Expect?
– Five Day Tender Offers: Conditions and Timelines
– Wake-Up Call for Private M&A Deal Structuring
– Courts Increasingly Skeptical of the Value of Disclosure-Only Settlements
– Transaction Costs: Negotiating Their Tax Benefit
– Food for Thought: Conflicting Views on the “Knowing Participation” Element of Aiding & Abetting Claims

If you’re not yet a subscriber, try a no-risk trial to get a non-blurred version of this issue on a complimentary basis.

– Broc Romanek

March 23, 2015

Proxy Access: BofA Becomes 10th to Adopt Own Bylaws

As noted in this Reuters article, Bank of America filed this Form 8-K to note that it has adopted a proxy access bylaw with a formula of 3%/3-year formula – along with a group cap of 20 shareholders & nomination cap of 20% of board seats. As noted in this piece, BofA conferred with the NY Comptroller’s office and other pension funds before making this move – even though the proponent at BofA was retail holder John Harrington.

Hat tip to Simpson Thacher’s Yafit Cohn for pointing out that BofA is the 10th company to adopt their own proxy access bylaws:

1. CF Industries Holdings (5%, 3 yrs, cap of 20%, group of 20)
2. General Electric (3%, 3 yrs, cap of 20%, group of 20)
3. HCP (5%, 3 yrs, cap of 20%, group of 10)
4. Boston Properties (3%, 3 yrs, cap of 25%, group of 5)
5. YUM! Brands (3%, 3 yrs, cap of 20%, group of 20)
6. Arch Coal (5%, 3 yrs, cap of 20%, group of 20)
7. Prudential Financial (3%, 3 yrs, cap of 20%, group of 20)
8. Cabot Oil & Gas (5%, 3 yrs, cap of 20%, group of 10)
9. Priceline Group (5%, 3 yrs, cap of 20%, group of 20)
10. Bank of America‎ (3%, 3 yrs, cap of 20%, group of 20)

Then there is Big Lots and Whiting Petroleum, which have reached agreements with the NY Comptroller’s office to adopt bylaws with the thresholds 3%, 3 yrs, cap of 25%, no group limit. These companies have not yet filed bylaw amendments.

Also note that Citigroup has filed its definitive proxy statement, in which the board supports the shareholder proponent’s proxy access proposal as earlier announced.

TIAA-CREF’s Bess Joffe Added – Tomorrow’s Webcast: “Proxy Access: The Halftime Show”

Tune in tomorrow for the webcast – “Proxy Access: The Halftime Show” – during which Morrow’s Tom Ball, Davis Polk’s Ning Chiu, Covington & Burling’s Keir Gumbs, Gibson Dunn’s Beth Ising, TIAA-CREF’s Bess Joffe and Sullivan & Cromwell’s Glen Schleyer will analyze how companies decided to handle the new wave of proxy access shareholder proposals – and how investors might react to that.

As this blog notes, a few companies have left shareholder proposals regarding special meetings off their preliminary proxy statements. These special meeting proposals are akin to proxy access proposals in that they were initially challenged under Rule 14a-8(i)(9) but then the SEC said it would take “no view” in this area and the initial Staff responses were reversed (see this Corp Fin reconsideration letter to the Illinois Tool Works proponent)…

SEC Meets on Wednesday to Adopt Reg A+ Rules

The SEC has announced that it will hold an open Commission meeting on Wednesday to adopt the Reg A+ rules as required by Section 401 of the JOBS Act. This memo summarizes the comments received by the SEC on its proposal. See this McGuireWoods memo

Speaking of comments, the ABA’s Business Law Section has submitted a comment letter on the S-K portion of the Corp Fin’s Disclosure Effectiveness project…

– Broc Romanek

March 20, 2015

SEC Chair Speaks: Fee-Shifting, Activism & Proposal No-Action Process

Yesterday, SEC Chair White delivered this speech that:

– Warned that someday the SEC might shift its focus on fee-shifting bylaws from concerned only about adequate disclosure to taking action to ensure shareholders aren’t stifled from seeking redress (see this blog; also see this blog about how Prof. Coffee found defects in Delaware’s proposed fee-shifting legislation)

– Noted some activism is “constructive” and said that in “certain situations, activism seeks to bring about important changes at companies that can increase shareholder value” (see this WSJ article & NY Times article about how Delaware CJ Strine wants the SEC to enhance its 13D disclosure rules on activism)

– On the debate over the SEC’s “no view” on Rule 14a-8(i)(9) this season (see this new letter from the Business Roundtable on that topic), she said (see this blog):

If a management proposal is made in response to a shareholder proposal on the same subject matter, does that end the inquiry — and the company may exclude the shareholder proposal because it ‘directly conflicts’ with management’s proposal? What if the proposals have the same subject matter, but the terms differ? What if management’s proposal could be viewed as a proposal that, if adopted, may purport to provide shareholders with the ability to do something, such as call a special meeting or include a nominee for director in a company’s proxy materials, but that, in fact, no shareholder would be able to meet the criteria to do so? If a company excludes a shareholder proposal because it conflicts with the company’s own proposal on the same subject matter, should the company have to disclose to its shareholders the existence of the shareholder proposal? What if the company’s competing proposal was offered only in response to the shareholder’s proposal — should the company have to disclose its motivations for its own proposal? …. In impartially administering the rule, we must always consider whether our response would produce an unintended or unfair result. Gamesmanship has no place in the process.

More on “MD&A Omissions Can Be Actionable in Section 10(b) Claims”

A few months ago, I blogged about a split between the 9th Circuit and 2nd Circuit on whether an alleged failure to make a disclosure required by Item 303 of Regulation S-K is an actionable omission under Section 10(b) and Rule 10b-5. Now, Kevin LaCroix blogs about a recent decision in Tile Shop Holding Securities Litigation, in which District of Minnesota Judge Ann Montgomery followed the Second Circuit’s ruling on the question and held that an alleged failure to make a disclosure under Item 303 can serve as the basis of a Section 10(b) securities claim. The ruling is interesting in a number of other respects as well.

Battle Over SEC’s ALJs Takes a Turn

I’ve blogged before about the controversy over the SEC’s use of administrative law judges. Here’s the intro of this Reuters article:

As the Securities and Exchange Commission follows through with its promise – or threat, depending on how you look at these things – to bring more of its enforcement actions as administrative proceedings before judges employed by the commission, at least a half-dozen defendants have brought constitutional challenges to the SEC’s right to pursue charges outside of federal district court. They’ve asserted two different theories: First, administrative proceedings violate their Seventh Amendment and due process rights because there’s no jury and the evidentiary rules favor the SEC; and second, the entire administrative law judge system violates separation-of-powers doctrine under the U.S. Supreme Court’s 2010 decision in Free Enterprise Fund v. Public Company Accounting Oversight Board.

The good news this week for SEC defendants facing administrative proceedings is that U.S. District Judge Rudolph Randa of Milwaukee believes both constitutional arguments to be “compelling and meritorious.” But the bad news in Randa’s ruling in Bebo v. SEC is bad indeed. The judge dismissed Laurie Bebo’s suit seeking a preliminary injunction to block the SEC from moving ahead with its administrative proceeding against the former CEO of Assisted Living Concepts, concluding that he does not have jurisdiction to resolve the constitutional questions.

Also check out this Reuters article entitled “Chamber to propose recommendations for SEC enforcement policies“…

More on “The Mentor Blog”

We continue to post new items daily on our blog – “The Mentor Blog” – for members. Members can sign up to get that blog pushed out to them via email whenever there is a new entry by simply inputting their email address on the left side of that blog. Here are some of the latest entries:

– Transition Timeline for New COSO Framework
– Restatements Have Fallen Sharply Since SOX
– Survey: Benchmarking the Accounting & Finance Function
– Directors: Recognizing & Reacting to Red (or Yellow) Flags
– FASB Issues Going Concern Assessment & Disclosure Standard

– Broc Romanek

March 19, 2015

Whistleblowers: Former Company Officer Permitted to Claim Award

Here’s news from Davis Polk’s Ning Chiu:

The SEC announced a whistleblower award of nearly half a million dollars to a former company officer whose report of misconduct resulted in an SEC enforcement action. In order for a whistleblower submission to be considered original information, it must be derived from a claimant’s independent knowledge or analysis, which is generally not applicable if the whistleblower obtained the information as an officer, director, trustee or partner.

The whistleblower in this case was an officer of the company. However, the Claims Review Staff decided that the information provided by the individual was not disqualified from being treated as original information since the officer reported the information internally at least 120 days prior to reporting it to the Commission, and the matter failed to be addressed at the company. We explain the exception in our memo on the rules.

This is the first whistleblower award to an officer. As is their usual practice, the SEC provided no details about the background of the misconduct or the report made by the whistleblower. The SEC has awarded 15 whistleblowers in the last three years, for an eye-popping total of nearly $50 million, which is financed from the sanctions.

Also see the blog by Keith Bishop entitled “Does Former Officer Have An Obligation To Turn Over Whistleblower Award?.”

More on “SEC Probing How Companies Treat Whistleblowers”

Last month, I blogged how the SEC has sent letters to several companies asking for years of nondisclosure agreements, employment contracts and other documents to investigate whether companies are muzzling corporate whistleblowers. Here’s more from this blog by David Smyth entitled “The SEC Will Be Your Employment Law Agency, Too.” Here’s an excerpt from that blog:

Now the Commission is wading deeper and deeper into the employment law business. We’ve known for some time that the SEC was looking for cases in which to enforce the Dodd-Frank anti-retaliation provisions of the whistleblower rules. It brought such a case against Paradigm Capital Management just last June. Also last year, SEC whistleblower chief Sean McKessy warned against companies writing severance agreements to buy their former employees’ silence with post-employment benefits. “And if we find that kind of language, not only are we going to go to the companies, we are going to go after the lawyers who drafted it,” he said.

But thanks to the Wall Street Journal’s Rachel Louise Ensign, that’s not all. Oh, no; that’s not all. In an article from last week, she reports that the Commission is actively looking for that kind of language. It has sent a request letter asking a number of companies “to turn over every nondisclosure agreement, confidentiality agreement, severance agreement and settlement agreement they entered into with employees since Dodd-Frank went into effect, as well as documents related to corporate training on confidentiality.” The letter also asks for “all documents that refer or relate to whistleblowing” and lists of terminated employees.

Also check out this blog by Keith Bishop entitled “Is Anything Fishy With The SEC’s Whistleblower Inquiries?.” And this Kevin LaCroix blog entitled “Whistleblowing: What Difference Does it Make?“…

Here’s a blog from Mintz Levin on this topic. And also see this blog by Steve Quinlivan entitled “Three Dodd-Frank Whistleblower Anti-Retaliation Claims Fail.” And this blog from Steve about how the 2nd Circuit has upheld the SEC’s denial of a whistleblower award…

Whistleblowers: DOL Adopts Final Rules

The Department of Labor finally has gotten around to adopting final rules for whistleblower procedures as required by Section 806 of Sarbanes-Oxley, which reflects Dodd-Frank-imposed amendments and clarifies OSHA’s procedures for handling whistleblower claims. The DOL & OSHA have been operating under interim final rules since 2011 – and the new rules are similar to those. As reflected in this memo, the new rules provide employees with 180 days to file complaints and now allow allegations to be made orally…

Whistleblowers: NY May Propose Dodd-Frank-Like Law

Recently, the NY Attorney General announced that he intends propose a whistleblower bill – the “Financial Frauds Whistleblower Act” – that would cover securities and financial frauds in New York financial services companies that would be similar to Dodd-Frank’s whistleblower laws…

Whistleblowers: SEC Files Amicus Brief Supporting Internal Reporting

A few weeks ago, the SEC filed this amicus brief with the Second Circuit in Berman v. Neo@Ogilvy LLC, to defend its position that Dodd-Frank’s whistleblower protections include whistleblowers who internally report their concerns.

In this blog entitled “Revealed! The Numbers The Attorney General Didn’t Want You To See,” Keith Bishop describes his journey to obtain whistleblower reporting numbers from the California Attorney General…

– Broc Romanek

March 18, 2015

Proxy Access: All Sorts of Developments

As will be covered during our upcoming Tuesday webcast – “Proxy Access: The Halftime Show” (TIAA-CREF’s Bess Joffe just joined the panel!) – there are all sorts of developments, such as:

– TIAA-CREF has quietly sent letters to 100 companies urging them to voluntarily adopt access within the next 6-8 months (see this WSJ article, including my quote at the end)
– At least 4 proxy access shareholder proposals have been withdrawn by the NYC Comptroller as part of a settlement (per this Ning Chiu blog)
– Per Ning’s blog: “Many companies are opposing the proposals in their proxy statements, while at least one company has included the proposal, but with the board in favor of it. Most opposing the proposal are arguing against the need for proxy access at all, or have indicated a willingness to adopt access, but at a higher ownership threshold.”
– And Ning says: “Other companies are offering shareholders a choice between a management proposal (either binding or precatory) along with a shareholder proposal, with different ownership thresholds for the two types of proposals.”

In our “Q&A Forum,” someone asked for a list of the companies listed in Friday’s blog that have adopted the “Prudential” style of renomination ineligibility provision. The list was posted in response (#8370).

Conflict Minerals: Status of Corp Fin Views

Elm Sustainability Partners has posted this interesting note, repeated below:

We spent a very busy and productive two days last week in Washington. One meeting was with the SEC Staff responsible for the conflict minerals disclosure requirements. They were, as usual, generally tight-lipped in responding to our questions, but we did get three interesting bits of information.

– Readers may recall recent comments from CorpFin Director Keith Higgins about his view that many RCOI descriptions were inadequate. The comments did not make clear if he was referring to those who filed a Form SD only, or the RCOI descriptions included in Conflict Minerals Reports (CMRs). The Staff clarified that the comments were aimed at Form SD filers only, which makes sense. Moreover, we suggest that those filing only the Form SD for CY2014 be prepared for additional scrutiny that is likely to come from other stakeholders as well.

– Staff gave no insight into when additional FAQs/Interpretive Guidance will be published. But they did state that the next round consists of approximately 10 questions. This puts to rest the rumor that the Staff was working on a very large number of questions, which is one reason for the lengthy delay.

– A number of issuers have expressed concern about the validity of the Keller and Heckman letter on the Staff’s position that nonmetallic forms of 3TG are not a covered derivative. The Staff stated that the letter does fully represent their formal position on the matter and that issuers should not be wary of relying on it. Further, we note that the letter covers 3TG, not just tin or 3T, so gold salts/plating chemicals are not considered covered derivatives.

Elm also posted this note about how Apple has filed its Form SD for this year already, a few months early…

Transcript: “Private M&A Wake-Up Calls”

We have posted the transcript for our recent webcast: “Private M&A Wake-Up Calls.”

– Broc Romanek

March 17, 2015

Survey Results: Shareholder Engagement

Here’s the results from our recent survey on shareholder engagement:

1. For our proxy season-related efforts (ie. not the normal IR stuff), this number of our staffers handles most of the communications with our institutional shareholders:
– More than 3 – 10%
– 3 – 30%
– 2 – 20%
– 1 -30%
– None – 10%

2. Before our annual meeting, our company typically has face-to-face engagement with this number of institutional shareholders:
– More than 12 – 20%
– 7-12 – 10%
– 4-6 – 20%
– 2-3 – 30%
– 1 – 0%
– None – 20%

3. Before our annual meeting, our company typically receives this number of requests for face-to-face meetings from our institutional investors:
– More than 12 – 0%
– 7-12 – 0%
– 4-6 – 10%
– 2-3 – 30%
– 1 -10%
– None – 50%

Take a moment to participate in our “Quick Survey on Hedging Policies” and our “Quick Survey on Conflict Minerals.” I also just posted this “Quick Survey on Currency Fluctuations for Incentive Compensation.”

Aiding & Abetting Defendants: Motion for Amended Complaint Seeks to Add Company Counsel!

OMG! This motion to amend the complaint in Chen v Howard-Anderson (“aka Occam”), CA No. 5878-VCL (Del. Ch.) is sure to raise eyebrows as it indicates a willingness to bring aiding & abetting claims against company counsel and not just financial advisors and counterparties – something rarely seen before in the public company M&A context. The oppositions to the motion filed on March 4th were filed confidentially. Argument on the motion to add company counsel is being held today.

In light of the prisoner dilemma type incentives created by the Delaware Uniform Contribution Among Tort-feasors Law (DUCATL) – as interpreted by the Delaware Chancery Court in Rural/Metro – several commentators have suggested that defendants are increasingly likely to break ranks rather than present a united front in defense of aiding & abetting claims. This likely will contribute to a rise in company counsel appearing as defendants, if not initially included in the complaints filed or in cross-claims filed by co-defendants seeking to preserve and maximize rights of contribution or credit for settlements under DUCATL. This could get real messy.

Like Rural/Metro, the motion to amend the complaint adds new defendants to an action in which discovery is well advanced if not substantially complete, potentially requiring the new defendants – at least Jefferies (like RBC in Rural/Metro) – to go to trial based on a record, particularly discovery – that they may have had little if any role in creating. See paragraph 7 of the motion acknowledging that it is being filed four years after the hearing on a preliminary injunction in the matter.

Form S-8 Share Counting, Fee Calculations and Other Tricks of the Trade

We just mailed the January-February issue of The Corporate Counsel. The issue covers a slew of issues related to Form S-8, such as:

– Deciding Whether Plan Offers Must Be Registered or Exempt
– Eligibility to Use Form S-8
– The Need To Register “Plan Interests”
– The Need To Register Deferred Compensation Plan Obligations
– Calculating Filing Fees
– “Share Counting”: Determining How Many Shares To Register
– A Sample Spreadsheet to Help You Audit Your Plan

Act Now: Try a no-risk trial now to get a non-blurred copy rushed to you. Also tune in for our upcoming webcast with the same title as this issue of The Corporate Counsel..

– Broc Romanek

March 16, 2015

SEC’s “RoboCop” Moves on Schedule 13Ds

On Friday, the SEC brought 8 enforcement actions against Schedule 13D filers for failing to amend their Schedules. Here’s a good description from this blog by Steve Quinlivan of Stinson Leonard Street:

It’s well known that Federal securities laws require beneficial owners to promptly file an amendment when there is a material change in the facts previously reported by them on Schedule 13D, commonly referred to as a “beneficial ownership report.” It sounds easy to comply with, but the 13Ds can be on file for years, the obligations can be forgotten and facts can change rapidly in certain circumstances. The SEC has now sent a strong reminder to the world that it takes 13D updating obligations seriously. The SEC charged eight officers, directors, or major shareholders for failing to update their stock ownership disclosures to reflect material changes, including steps to take the companies private. Each of the respondents, without admitting or denying the SEC’s allegations, agreed to settle the proceedings by paying a financial penalty.

The SEC’s orders find that the respondents took steps to advance undisclosed plans to effect going private transactions. Some determined the form of the transaction to take the company private, obtained waivers from preferred shareholders, and assisted with shareholder vote projections, while others informed company management of their intention to privatize the company and formed a consortium of shareholders to participate in the going private transaction. As described in the SEC orders, each respective respondent took a series of significant steps that, when viewed together, resulted in a material change from the disclosures that each had previously made in their Schedule 13D filings. According to the SEC’s orders, some of the respondents also failed to timely report their ownership of securities in the company that was the subject of a going private transaction. In addition, six respondents only disclosed their transactions in company securities months or years after the fact, not within two businesses days, as required for these disclosures by insiders.

Left unanswered is the question of “what can I do before I have to amend my 13D and inform the world?”

These don’t look like broken windows to me, although some will claim they are, but it’s probably more of the SEC’s robo-cop program. How hard is it to identify the universe of going private transactions, who had 13D’s on file and who didn’t amend them. Expect the SEC to continue this approach to pick off more low hanging fruit and send messages in the future.

And here’s this Cooley blog on this development. And Alan Dye has blogged on the Section 16 aspects of this development…

Corp Fin’s Policy Statement: Reg A & D Waivers

On Friday, Corp Fin issued this policy statement on waivers under Regulation A and D. This was just one day after SEC Chair White delivered this speech in which she stated that charging individuals is a more effective tool to deter future misconduct than withholding waivers. In other words, refusing to grant a waiver should not be used as an enforcement tool. She also supported the Staff’s process by which they review waiver requests – noting that it’s “rigorous.”

Lately, the heated battle among the SEC Commissioners over “bad actor” waivers has resulted in the Commissioners themselves deciding whether to grant a waiver rather than the Staff. Here’s an excerpt from White’s speech that sums up how that looks to the outside world:

Unfortunately, the public discussions about the SEC’s waiver decisions sometimes do not recognize these important distinctions and can take on a political tone that can blur the analysis.

Here’s an excerpt from this blog by Steve Quinlivan that nicely sums up where we go from here: “The policy looks fair on its face. Application is another thing.
Initially I think it will lead to lots of those uncomfortable conversations between client and counsel that say “on the one hand these facts are good” and “on the other hand these facts are not.” Should the SEC continue to publish waiver decisions and enough information to ascertain the reasons therefore, eventually the securities bar will figure it out.”

Transcript: “Conduct of the Annual Meeting”

We have posted the transcript of our recent webcast: “Conduct of the Annual Meeting.”

– Broc Romanek