September 30, 2009

The Coming Overhaul of the SEC's Division of Enforcement

Yesterday, the SEC's Inspector General issued a 46-page report with a list of 21 recommendations to improve the Division of Enforcement. In addition, the IG issued a 86-page report with a list of 37 recommendations to improve the Office of Inspections and Examinations. Implementation of these recommendations will result in a radical overhaul of these parts of the SEC.

Both Enforcement and OCIE concurred with the recommendations - and are required to submit corrective action plans to the IG within 45 days. Actual implementation of these corrective actions may take quite some time as some will require quite a bit of work (and funding), like the creation of a database for tips and complaints. Here is a WSJ article - and here is a NY Times article regarding the report.

What is "Axiom"? A New Legal Profession Model?

In this podcast, Mehul Patel of Axiom explains how Axiom works and how it can help lawyers find work as well as legal departments find staffing, including:

- What is Axiom?
- What types of lawyers are your clients looking for?
- What types of projects does Axiom most often get hired for?
- What has been the biggest surprise since Axiom started?

Our October Eminders is Posted!

We have posted the October issue of our complimentary monthly email newsletter. Sign up today to receive it by simply inputting your email address!

- Broc Romanek

September 29, 2009

Intel's Quasi-Virtual Meeting: A First-Hand Report

Just reading through the Fall issue of Carl Hagberg's "Shareholder Service Optimizer" - chock full of great stuff as always - and Carl has given me permission to post this excerpt based on his recent experience as independent tabulator at Intel's novel annual meeting (which I previously blogged about):

Your editor has the honor to serve as the Inspector of Election at Intel's 2009 annual meeting, the first "virtual annul meeting" ever. In an interesting twist of fate, he had testified a few years ago about why a "virtual annual meeting" that had been proposed by a group of vulture capitalists would not work - simply because the proper technology to allow "virtual voting" in a secure and auditable fashion could not then be put into place ... at least by that group. So he was already on the record, under oath, as to what would really be required to pass muster. We're here to tell you that Broadridge has "cracked the code" technologically, but that the meeting - and the technology - was really cool.

Intel, of course has provided a "live" webcast of its meeting in previous years. And they'd also solicited shareholder questions over the web in advance of the meeting. What was totally new, however, was the virtual, on-line, real-time voting feature.

Here's how it worked: Broadridge closed the voting sties in advance of the meeting in order to establish the quorum and arrive at firm "preliminary numbers". Then, they reopened the polls - for internet voting only - shortly before the meeting began. As shareholders registered for the live webcast they were asked to enter their identifying numbers (from the proxy card if they were registered holders, or from the VIF if they were street-name holders) if they wished to have the opportunity to vote "live" during the meeting.

While normally your editor does not vote his own proxy if he's the inspector ... to be sort of "super-independent" ... he logged on in this case, in order to see exactly how the system was working. A box popped up almost instantly on his computer screen verifying that he was entitled to vote, and providing the spots he'd need to click on in order to make his selections.

As the live webcast began - with a few second delay that was also kind of cool to observe along with the "really live meeting" - the box remained open on the right-hand side of the screen. Since his vote has really immaterial in terms of the outcomes - and since he wanted to see exactly how things would work, he decided to cast his votes midway through.

A new screen popped up to tell him his votes had been recorded ... and that he could click again if he wished to change his mind or keep his options open during the course of the meeting, which he did. When the polls were declared closed, the voting screen instantly disappeared, and a message popped up to inform viewers that the voting period had closed. How cool could this possibly be!

Broadridge could not, of course, report the final votes at once: The votes cast at the meeting had to be "run" against the preliminary vote file, to be sure that any earlier votes were revoked by the online vote. And, as backup, Broadridge was able to print out all the details on t he votes cast at a meeting .... And yes, your editor's vote was among them, as he fully expected it to be. The final tabulation was read by M+2....

...Another concern your editor has expressed revolves around the good-governance aspect of allowing shareholders to ask questions ... and the extra preparedness that most meeting chairmen engage in to be ready for them. But Intel's process assured that this worked fine too - and frankly, the technology is there to let shareholders type in their questions, or to record a statement in advance if they really want to. The meeting chairman alternated nicely between "live" questions and questions from the Internet. And, as Cary Klafter, Intel's Corporate Secretary told the Society at its annual conference, most of the internet questions - any many of the live ones too - were about products, and had nothing at all to do with "governance" matters ... although not every company can count on this, of course.

Note that my title uses "quasi-" before "virtual" as I worry that semantics may get the better of us. Most folks rightly use the term "virtual meeting" to describe what I call an "electronic-only shareholder meeting" (eg. my recent blog about Herman Miller) and Intel did indeed hold a physical meeting - so it wasn't completely "virtual"...

Allegations of Bad Faith: Mark Cuban Goes for SEC's Blood

The latest in the Mark Cuban/SEC saga - now Cuban has sued to recoup attorney's fees and expenses from the SEC, as noted in "TheRacetotheBottom" Blog. As noted in this blog, the US District Court for the Northern District of Texas dismissed the SEC's insider-trading complaint against Cuban back in July. Man, the SEC's Enforcement Division just can't catch a break in the assault on its reputation...

Last Chance for Discounted Rate: Lynn, Borges & Romanek's 2010 Compensation Disclosure Treatise

Now that we have seen the SEC's proposals and Congress' say-on-pay legislation - that will force you to radically change your executive compensation disclosures and practices before next proxy season - we are wrapping up the '10 version of Lynn, Borges & Romanek's "Executive Compensation Disclosure Treatise and Reporting Guide," which we will deliver to subscribers in October.

Act Now for $100 (Or More) Discount: To obtain this hard-copy '10 Treatise when its printed in October (as well as get online access to the '09 version right now on, as well as the valuable quarterly "Proxy Disclosure Updates"), you need to try a no-risk trial to the Lynn, Borges & Romanek's "Executive Compensation Service" now.

If you order by this Thursday, October 1st, you can take advantage of a $100 or more discount. The many of you that currently subscribe can renew by October 1st to also receive this discount. Get the new Treatise hot off the press when it comes out!

- Broc Romanek

September 28, 2009

SEC Brings Relatively Rare Reg FD Case Against a CFO

It's been quite some time since the SEC's Enforcement Division brought a Regulation FD case (two years since the last one) - and I count only nine such cases since Reg FD was adopted earlier this decade (according to the list in our "Regulation FD" Practice Area). On Thursday, the SEC announced an administrative proceeding in which a former American Commercial Lines CFO (Christopher Black, who was the company's de facto IRO) agreed to pay $25,000 for a Reg FD violation that occurred a few years ago. The CFO is alleged to have selectively disclosed material, nonpublic information regarding the 2nd quarter '07 earnings forecast to a limited number of analysts. Here is the SEC's complaint.

Here is a summary of what allegedly happened according to the complaint:

- In mid-2007, the company issued a press release projecting second quarter earnings in line with 1st quarter earnings.
- Later that week, the CFO sent an e-mail from his home to the eight sell-side analysts who covered the company that said that the company's earnings per share for the second quarter "will likely be in the neighborhood of about a dime below that of the first quarter," effectively cutting in half the second quarter earnings guidance.
- This selective disclosure and resulting analysts' reports triggered a significant drop in the company's stock price.

The SEC's litigation release identified these factors to explain why an enforcement action wasn't pursued against the company itself:

- Prior to the selective disclosure by Black, the company cultivated an environment of compliance by providing training regarding the requirements of Regulation FD and by adopting policies that implemented controls to prevent violations.
- The CFO alone was responsible for the violation and he acted outside the control systems established by the company to prevent improper disclosures.
- Once the illegal disclosure was discovered by the company, it promptly and publicly disclosed the information by filing a Form 8-K with the SEC the same day.
- The company self-reported the conduct to the SEC Staff the day after it was discovered and the company provided extraordinary cooperation with the Staff's investigation.
- The company took remedial measures to address the improper conduct, including the adoption of additional controls to prevent such conduct in the future.

These factors noted by the SEC serve as a good reminder that companies should have Regulation FD policies and well-documented compliance training programs in place. In our "Regulation FD" Practice Area, we have a bunch of sample Reg FD policies.

PCAOB Issues 1st Year AS #5 Implementation Report

Last Thursday, the PCAOB issued a report on the first year of implementation of AS #5 regarding internal controls. In FEI's "Financial Reporting Blog," Edith Orenstein wonders whether the SEC's "Study of the Costs and Benefits" regarding internal controls reporting under the SEC & PCAOB rules is not far behind...

- Broc Romanek

September 25, 2009

Survey Results: Stock Ownership Guidelines

Many companies have adopted stock ownership guidelines requiring executives and directors to own stock in their company based on a multiple of their salaries or board retainers. With the current market downturn and drop in net worth for many people, some companies are changing their stock ownership guidelines. Below are the results from a recent survey we conducted on this topic:

1. At our company, we are:
- Enforcing our stock ownership guidelines without change - 52.2%
- Revising our ownership requirements - 23.3%
- Terminating or suspending our stock ownership guidelines entirely - 5.6%
- Granting waivers selectively to executives or directors who aren't meeting the guidelines - 3.3%
- We don't have stock ownership guidelines - 15.6%

Please take a moment to respond anonymously to respond to our "Quick Survey on "Board Committees Interacting with Full Board ."

Move SEC's Enforcement to DOJ? Good Grief...

If I tried to give my opinion on each of the hundreds of reform recommendations made in the wake of the financial crisis, that's all this blog would be about. Plus, it's probably humanly impossible to keep up with them all. Everyone has a say in how we should fix what is broken.

But sometimes I see something that causes my brain to hurt and I can't help but say something. This Bloomberg article posits the idea of "spinning off" the SEC's Enforcement Division to the Department of Justice because Enforcement
needs "independence." And now I quote from the article, "That way, after people in the division of market regulation "notify the pit bulls" in enforcement about suspicious activity, the SEC has no further role in the investigation and can't be pressured by the target firm to go easy."

Ah, where do I start...I guess with these thoughts:

1. The SEC is an independent agency - just like the DOJ. It's only been politicized during the last decade by an intruding Congress who had pushed for deregulation (as I've blogged about before) - just like the DOJ became politicized this decade (remember Alberto Gonzales?).

2. Not to say the SEC hasn't slipped up occasionally this decade, but I haven't seen the DOJ do anything particularly stellar recently. At this time, the SEC only has the authority to bring civil actions for violations of the federal securities laws - the DOJ is the agency tasked with bringing criminal charges. Do you see the DOJ using that authority to bring criminal charges against the perpetrators of the financial meltdown? I don't.

3. Do the folks behind this idea think that the DOJ (or any other law enforcement in the world) doesn't engage in negotiations with targets to arrive at a compromise solution? The SEC doesn't go "easy" with its targets.

4. There is a clear lack of understanding about how the SEC really works in this article. Investigations with Market Reg or Corp Fin implications aren't simply "handed off" to Enforcement. For example, Enforcement Staffers rely on Corp Fin Staffers for their expertise to help parse financial fraud.

I agree with the idea in the article that Enforcement should build a better mechanism to allow investors to submit complaints. But people have to realize the very limited resources of the SEC - it only has so many horses. And the number of crazy complaints that the SEC receives would boogle your mind (and that's before this market crash). Thousands of investors who gambled in the market and lost think they have a case against someone. That somehow investing in the market was a guarantee. Do you want to spend your money as a taxpayer chasing down every single one of these crazy "leads"?

September-October Issue: Deal Lawyers Print Newsletter

This September-October issue of the Deal Lawyers print newsletter was just sent to the printer and includes articles on:

- Convertible Debt Exchange Offers: Considerations for Distressed Issuers
- Mitigating Value and Dilution Risks in Stock-for-Stock Mergers
- Caveat Everybody: Changes in Control as Assignments of Contract Rights
- Substituting Tort for Contract: Tortious Interference Claims Against M&A Affiliates

If you're not yet a subscriber, try a "free for rest of '09" no-risk trial to get a non-blurred version of this issue for free.

- Broc Romanek

September 24, 2009

ABA Task Force Report on Delineation of Governance Roles & Responsibilities

In this podcast, Holly Gregory of Weil Gotshal discusses the recently issued ABA Task Force Report on Delineation of Governance Roles & Responsibilities, including:

- How long did the process take to produce this Report?
- What are the Report's major findings?
- Any surprises in the Report?
- What do you hope will happen in response to the Report?

More on "Poll Results: How Do You Look Up a SEC Rule?"

Below is some member feedback on my poll results regarding how folks look up SEC rules:

- I have gotten used to using the CFR, even though it's only updated once a year. I figure I keep up with Corp Fin stuff enough that I know where recent changes are. I teach with someone from a big firm and she is confounded when I use the CFR.

- Back in my youth, even the lowliest green goods associate at Big Law got a huge 7-volume set of CCHs. It was full of annotations and references and regulatory history and no-action and interpretation cites that were helpful, especially when you didn't know anything. Not sure if those are still around, but so much more information is readily available (like on this site) that I imagine it isn't used much anymore due to a hefty price tag.

More on "The Mentor Blog"

We continue to post new items daily on our new blog - "The Mentor Blog" - for members. This blog might be misnamed - it's not just about mentoring - it covers all types of developments and practice pointers that can prove useful in your daily practice.

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:

- How Do We Turn the Legal Profession Around?
- Annual Report Distribution Service: Scam?
- The One-Year Law School
- How Common are "Risk Committees"?
- California Simplifies Requirements for Electronic Communications to Shareholders and Corporate Members
- The Original "Original Thinker": Bob Monks

- Broc Romanek

September 23, 2009

Nasdaq Proposes "Comply or Disclose" Approach

As noted by Gibson Dunn: Recently, the Nasdaq Listing and Hearing Review Council sent a paper to Nasdaq companies seeking comment on whether it should adopt a "comply or disclose" approach for certain corporate governance practices as an alternative to additional, substantive requirements, noting that some non-U.S. markets follow a "comply or disclose" model and that it "offers flexibility to companies and transparency to investors and allows practices to evolve in a logical manner."

Accordingly, the Nasdaq paper solicits comment about a range of practices, including board leadership, resignation policies for directors that fail to receive majority votes, annual director elections, and shareholder ratification of a company's outside auditor. Any required disclosures would appear either in a company's proxy, in the case of most U.S. companies, or in its annual report filed with the SEC for all other companies. Comments are due by October 30th.

How to Sell a Division: Nuts & Bolts

Join us tomorrow for the webcast - "How to Sell a Division: Nuts & Bolts" - to learn more about one of the most popular methods to change a company's focus - and raise much-needed cash: selling a division. Join these experts:

- Bill Jonason, Partner, Dorsey & Whitney
- Doug Leary, Partner, Sutherland
- Marty Nussbaum, Partner, Dechert
- Cal Smith, Partner, Troutman Sanders
- Jennifer Vergilli, Partner, Calfee, Halter & Griswold

All the Rage: Investor Advisory Committees

Last week, the SEC announced that three subcommittees of its newly-formed Investor Advisory Committee have been formed to address specific categories of regulatory issues. Here is the Committee's new web page. And the PCAOB has announced the 19 members of its inaugural Investor Advisory Group. Only three members are duplicated among the SEC's group of 17 (with another member "ex officio"). That's not too bad...

In FEI's "Financial Reporting Blog," Edith Ornstein provides more details about these Committee developments.

- Broc Romanek

September 22, 2009

Can We Overcome Short-Termism?

A few weeks ago, the Aspen Institute released a report (here is the press release) entitled "Overcoming Short-Termism: A Call for a More Responsible Approach to Investment and Business Management," signed off by a number of well-known governance experts on all sides of the governance debate. It's short (6 pages) and comes when high-frequency and flash trading have come under regulatory attack (as I blogged about recently - and last week, the SEC proposed rules to ban flash trading).

The Aspen report makes recommendations for three basic problems:

1. Fees - High rate of portfolio turnover harms investor returns.

2. Short-Term Focus Harmful in Long Term - Short-term traders have little reason to care about long-term corporate performance - so are unlikely to exercise a positive role in promoting corporate policies and can lead to market failures, social and environmental degradation.

3. To Whom Do Executives/Boards Owe Duties? - If managers and boards pursue strategies to satisfy short-term investors, they can put the interests of shareowners seeking long-term growth and sustainable earnings and Corporate America's future at risk.

This is a noble effort and should be helpful to assist the SEC and other regulators push investors towards longer-term thinking, if that is possible given how "buy and hold" investors got crushed in the recent downturn...

SEC Adopts (and Proposes) Rules to Further Strengthen Oversight of Credit Rating Agencies

Last week, at an open Commission meeting, the SEC adopted (and proposed) a bunch of rules changes designed to strengthen their oversight of the credit rating agencies (specifically, these rules). Here are Chair Schapiro's opening remarks. Some of the proposals could impact the disclosure obligations that companies have - so this is not just news for rating agencies (I'll leave it to Dave to blog about this point in the near future).

Some aren't convinced that the SEC's approach to reform of the rating industry is sound - they worry that the inherent conflicts of interest will continue to entice the agencies to give more favorable ratings than deserved since the SEC's rule changes don't alter that dynamic at all. For example, see Steve Pearlstein's column from Friday's Washington Post.

Full Steam Ahead: SEC Decides to Pursue BofA Bonus Disclosure Trial

Last week, I blogged about US District Court Judge Jed Rakoff's refusal - with a stinging rebuke to both the SEC and Bank of America - to approve a $33 million settlement between the SEC and BofA over allegations of misleading proxy materials because the bonus obligations due to Merrill Lynch employees were not fully disclosed. I noted how the SEC had limited options because it argued before Rakoff that that there was insufficient evidence to charge individuals - and that the SEC's best bet may be to dismiss the case and file an administrative claim that wouldn't be heard in federal court.

Well, what do I know. Yesterday, the SEC filed a case management plan in Rakoff's court and issued a statement that it would proceed "vigorously" to pursue its case against Bank of America, including:

"As we alleged in our complaint last month, Bank of America did not provide investors with complete and accurate information about the bonuses to be paid by Merrill Lynch to employees. We believe that this disclosure failure violated the federal securities laws.

We firmly believe that the settlement we submitted to the court was reasonable, appropriate and in the public interest. As we consider our legal options with respect to the court's ruling, we will vigorously pursue our charges against Bank of America and take steps to prove our case in court. We will use the additional discovery available in the litigation to further pursue the facts and determine whether to seek the court's permission to bring additional charges in this case.

In deciding how to proceed, we will, as always, be guided by what the facts warrant and the law permits."

As part of it's announcement, as noted in this Washington Post article, the SEC intends to broaden its investigation into alleged wrongdoing at the company and may seek additional charges as it prepares for the trial...

- Broc Romanek

September 21, 2009

Proxy Access: Will It Arrive? And When?

With the expiration of the comment period and rumblings of next proxy season heard in the not-so-far off distance (not to mention the huge attendance for our webcast on the topic last week; audio archive now available), a lot of members are wondering if the SEC indeed will adopt proxy access - and if so, when. Based on statements from the SEC, the short answers seem to be "yes" and "in time for next proxy season." I've heard from quite a number of sources - bear in mind, all of them from outside the SEC - that the SEC will hold an open Commission meeting to adopt something in the mid-November range.

As noted by Prof. Lisa Fairfax in the "Conglomerate Blog," SEC Chair Schapiro spoke last week and indicated that something would likely be adopted soon. Lisa then went on to provide some notes about what Schapiro said in reaction to some questions at the end of her speech - so it's worth reading her blog in tandem with Schapiro's speech...

Survey: Shareholders "Just Voting No" Rises

Over the weekend, as noted in this NY Times article, proxy advisor PROXY Governance released a survey showing a significant increase in the percentage of director nominees who received high percentages of shareholder votes cast in opposition in director elections during the first eight months of 2009. Here are the major findings:

- Although the vast majority of director nominees continue to be elected with little opposition, through August 2009, 9.8% of unopposed director nominees had at least 20% of shares voted against them or withheld, up from 5.5% in 2008.

- This trend was apparent at other threshold levels as well, with the percentage of directors having at least 40% of shares voted in opposition doubling from 1% in 2008 to 2.1% in 2009, and the percentage of directors failing to attain support from a majority of shares cast tripling to 0.6% in 2009 from 0.2% in 2008.

- Of all director nominees who had more than 20% of shares withheld or voted against them in board elections, nearly 60% served on compensation committees.

- Despite fewer organized "Vote No" campaigns against directors in 2009, at least 84 directors at 48 companies failed to attain majority support from shareholders through August 2009 at more than 2,400 companies where voting results were available.

- Beginning in 2010, discretionary voting by brokers will no longer be allowed in director elections. Because brokers control up to 20% of the vote at many companies and almost always vote with management's recommendations in director elections, the new rules could result in many more directors failing to achieve majority support. For example, out of PROXY Governance's universe of director votes through August 2009, there were 284 director nominees who were elected with less than 60% of shares cast in support and 473 nominees elected with less than 65% support of the shares cast. Many of these directors would likely not have received majority support if broker discretionary votes had not been counted.

Microsoft Becomes First Company to Adopt Triennial Alternative for Say-on-Pay

Late Friday, Microsoft announced that its board authorized moving forward with a triennial say on pay approach starting with this year's meeting, being held on November 19th. On the "Microsoft on the Issues" Blog, the company's General Counsel and Deputy General Counsel provide more background on the issue and details of the plan adopted.

You may recall that the Carpenters Union had been pushing this triennial alternative (as noted in this blog) - but that it had more recently withdrawn the proposals it had submitted to 20 companies on the topic in the wake of the House considering but rejecting the idea when it passed a say-on-pay bill in early August. Maybe Microsoft's action will provide some momentum towards the idea, although it could be too late as the Senate plans to consider a bill in the coming months...

- Broc Romanek

September 18, 2009

New York's New Power of Attorney Law: The Impact on You?

Effective September 1st, New York has a new law that imposes new requirements for the creation of valid power of attorneys, both statutory and non-statutory. While this likely will impact you on some level, a question was raised in our "Q&A Forum" as to how it impacts registration statements, Section 16 reports and Form 10-Ks - since they often have signatures affixed via POAs. Here is a response from Alan Dye:

My view is that the signature requirements for registration statements and other SEC filings (including Forms 4) are a matter of federal law, and aren't affected by state laws governing power of attorneys (some of which require a notary). I cover this in his Section 16 Treatise, in the section dealing with signature requirements. I've never heard the SEC Staff address it - but also have never seen them request confirmation that a power of attorney conforms to state law or requires a notary.

We have posted memos regarding New York's new law in a new "Power of Attorney" Practice Area. And on the Blog today, I posted a note about the impact of this new law on M&A deals...

Nearly Done: Lynn, Borges & Romanek's 2010 Compensation Disclosure Treatise

Now that we have seen the SEC's proposals and Congress' say-on-pay legislation - that will force you to radically change your executive compensation disclosures and practices before next proxy season - we are wrapping up the '10 version of Lynn, Borges & Romanek's "Executive Compensation Disclosure Treatise and Reporting Guide," which we will deliver to subscribers in early October.

Act Now for $100 (Or More) Discount: To obtain this hard-copy '10 Treatise when its printed in October (as well as get online access to the '09 version right now on, as well as the valuable quarterly "Proxy Disclosure Updates"), you need to try a no-risk trial to the Lynn, Borges & Romanek's "Executive Compensation Service" now.

If you order by October 1st, you can take advantage of a $100 or more discount. The many of you that currently subscribe can renew by October 1st to also receive this discount. Get the new Treatise hot off the press when it comes out in a few weeks!

Pay Czar Ken Feinberg Poised to Issue TARP Pay Rules

Yesterday, pay czar Ken Feinberg spoke at a FDIC conference on executive compensation here in DC (this Reuters' article reports he has 8 speaking gigs before his end of October deadline) and, according to this BNET article, he said he would issue his blueprint for the top 25 employees at financial institutions receiving TARP funds within the next 30 days.

Here is a notable excerpt from the article:

Feinberg suggested the rules he lays out for these companies should serve as a precedent for the entire financial industry, said Jaret Seiberg, a policy analyst with Concept Capital's Washington Research Group who attended the event. But how broadly the rules are applied is up to officials with the Federal Reserve and SEC, Feinberg noted.

- Broc Romanek

September 17, 2009

SEC Creates New Division of Risk, Strategy and Financial Innovation

Yesterday, the SEC announced the creation of a new Division - the Division of Risk, Strategy and Financial Innovation. The new division combines the Office of Economic Analysis, Office of Risk Assessment and "other functions to provide the Commission with sophisticated analysis that integrates economic, financial, and legal disciplines." At least for starters, this Division will have quite a small staff.

As rumored, the SEC lured Professor Henry Hu from Texas to head the new Division. Henry has become famous for his writings on derivatives, including problems with proxy voting. The addition of his expertise comes at a critical time given that broker nonvotes are eliminated next year for director elections. I continue to expect numerous problems as votes become more hotly contested and wind up in court.

I wonder what catchy nickname this new Division will earn - nothing comes to mind like Corp Fin and Market Reg. Maybe just initials like IM?

When Was the Last Time the SEC Created a Division? 1972

Surprisingly, this question stumped me when I pondered this one. So I went to the first logical source I could think of - the SEC Historical Society's site - and I got zip. Then I turned to a place that has been gathering dust on my bookshelf - the Louis Loss Treatise - and found these nuggets buried in a footnote:

- Current Divisional organization dates back to August 1972.
- Before then the SEC had three divisions: (i) Trading and Markets, (ii) Corporate Regulation (which administered PUHCA and John Huber informs me was the biggest and most important division during the Depression) and (iii) Corporation Finance (actually, Loss uses the term "Corporate Finance," a common misspelling!).
- '72 reorg divided Trading and Markets into a Division of Enforcement and a Division of Market Regulation.
- The '72 reorg also created a new Division of Investment Company Regulation, spun off from the Division of Corporate Regulation.
- In January 1973, the Division of Investment Company Regulation was renamed the Division of Investment Management
- In December 1983, the SEC delegated authority to its General Counsel that ended the Division of Corporate Regulation (and became an Office within the Division of Investment Management).
- In November 2007, the SEC renamed the Division of Market Regulation back to its '72 name: Division of Trading and Markets.

Note that the sizable Office of General Counsel has never been a Division.

Bonus Question: When was Corp Fin created? The SEC's 1943 annual report says the agency was reorganized in 1942, creating the Corporation Finance Division. This new Corporation Finance Division was referred to that way in subsequent annual reports until the '48 annual report, when the SEC (without explanation) referred to the division as the Division of Corporation Finance. Thanks to Alan Dye for digging this nugget out! It should be required learning as part of a new Staffer's initiation...

More on "The Mentor Blog"

We continue to post new items daily on our new blog - "The Mentor Blog" - for members. This blog might be misnamed - it's not just about mentoring - it covers all types of developments and practice pointers that can prove useful in your daily practice.

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:

- Delaware Chancery Court Mulls Lawsuit Over Director Resignations
- Tweaking Stock Ownership Guidelines
- Pricing Committees: Pros and Cons
- Law Firms Going Public: Crazy Talk?
- Rule 10b5-1 Plans: Still a Good Idea
- Nearly Complete: The Transition to a Paperless Stock Certificate World

- Broc Romanek

September 16, 2009

How to Prepare for a Proxy Access World

Tune into our webcast tomorrow - "How to Prepare for a Proxy Access World" - to learn the list of tasks you need to perform now including scrubbing bylaws, understanding the demand for stockholder lists process, etc. This program is not a debate about the virtues of the SEC's access proposal - rather, it will provide practical guidance about what you need to do now ahead of the SEC acting on its access proposal (because by the time the SEC acts, the window to scrub things may be a bit short before the proxy season).

Join these experts:

- Steve Bigler, President and Director, Richards Layton & Finger
- David Drake, President, Georgeson Shareholder
- David Katz, Partner, Wachtell Lipton Rosen & Katz
- Carol McGee, Partner, Alston & Bird

Redlined Version: Corp Fin's Latest CDIs

With Corp Fin updating a bunch of CDIs over the past few months (egs. on Monday and in August), a number of members have sought redlined versions of the changes. You may want to check out the redlines on the ABA's Disclosure and Continuous Reporting Subcommittee page, where WilmerHale's Jonathan Wolfman and Carter Ledyard's Guy Lander are now manning the fort.

The massive redline of the August CDIs comes courtesy of Jonathan, with the legwork done by WilmerHale's Michelle Vervais and Alex Greene.

Input for Corp Fin's Shareholder Proposal Process Meeting

Next Tuesday, Corp Fin is holding a meeting with representatives of some key stakeholders to discuss the process by which the Staff decides on no-action letters regarding shareholder resolutions, as noted by Jim McRitchie. Jim notes that Sanford Lewis and others have prepared a brief survey for shareholders who have had experience in that process to help provide input to the Staff. I think it's a great idea that the Staff is conducting this meeting - it probably should be an annual pre-proxy season event...

- Broc Romanek

September 15, 2009

Corp Fin Updates a Number of CDIs

Here's my pitiful plea before today's "meat." Please drop a note and nominate " Blog" to be included in ABA Journal's Top 100 Blogs. We were named last year and would like to be included in the list again. Yes, it's vain - but this is a lot of work and peer recognition is appreciated!

Okay, on to the news. Yesterday, Corp Fin updated a slew of new Compliance & Disclosure Interpretations in a variety of topic areas (and issued new interps in one area). It looks like the Division will take advantage of the Web to quickly distribute updated guidance rather than relying on major overhauls every few years like the old days. That's good news!

Here are the updated (and new) CDIs:

- Sections 13D/G and Regulation 13D/G (this includes new CDIs)

- Securities Act Rules

- Regulation S-K

- Form 8-K

- Interactive Data

- Regulation S-T

Going to Trial? Judge Rakoff Takes SEC to Task in Rejecting BofA Settlement

Yesterday, in a sternly-worded 12-page order, US District Court Judge Jed Rakoff's refused to approve a $33 million settlement between the SEC and Bank of America over allegations of misleading proxy materials because the bonus obligations due to Merrill Lynch employees were not fully disclosed. As this Bloomberg article notes, even though a February 1st trial is scheduled, the SEC has limited options now because it argued before Rakoff that that there was insufficient evidence to charge individuals. The SEC's best bet may be to dismiss the case and file an administrative claim that wouldn't be heard in federal court.

The following excerpt from this NY Times article gives you a sense of how Judge Rakoff felt about the settlement:

He accused the S.E.C. of failing in its role as Wall Street's top cop by going too easy on one of the biggest banks it regulates. And he accused executives of the Bank of America of failing to take responsibility for actions that blindsided its shareholders and the taxpayers who bailed out the bank at the height of the crisis.

The sharply worded ruling, which invoked justice and morality, seemed to speak not only to the controversial deal, but also to the anger across the nation over the excesses that led to the financial crisis, and the lax regulation in Washington that permitted those excesses to flourish.

Implicit in the judge's remarks were broader questions on the anniversary of one of the most tumultuous weeks in Wall Street's history: What do the giants of finance owe their shareholders and the investing public? And who will adequately oversee these behemoths?

As the drama of this case continues to unfold, Bank of America awaits the findings of NY Attorney General Andrew Cuomo as some expect him to file a complaint charging individuals at Bank of America in connection with the disclosure of Merrill Lynch bonuses in the near future.

Obama Speaks on Lehman's Collapse Anniversary: Latest Timetable for Congressional Reform

Yesterday, President Obama was also stern as he delivered a speech near Wall Street in which he talked about the need for financial reform. As noted in this NY Times article, the window for true reform is quickly closing as the stock market climbs every day. Below is an excerpt from that article about the possible timeline for Congress taking legislative action:

Senior Congressional Democrats had originally planned to have the House complete its work on the financial overhaul before turning to the more recalcitrant Senate. But the tighter time schedule has forced lawmakers to rethink that approach.

Later this week, Barney Frank, Democrat of Massachusetts and the chairman of the House Financial Services Committee, is expected to announce a series of hearings for the coming days before his committee marks up legislation in October. Aides say he is hoping to get legislation to the floor by the end of next month or beginning of November.

There is less certainty in the Senate, where Christopher J. Dodd, Democrat of Connecticut and the chairman of the Senate Banking Committee, has been working to put together a package that could withstand the threat of a filibuster.

- Broc Romanek

September 14, 2009

VC = Venture Cataclysm?

The world of venture capital is changing dramatically. Thanks in part to the global recession, VCs are contending with less-than-stellar returns, contracting investment levels, and a sluggish IPO market (previously a preferred VC exit strategy). Other sources of funding are so decimated that VCs are looking to Uncle Sam for assistance. This recent WSJ article explores the fact that VCs are hoping stimulus funds will help their fledgling companies survive.

Adding to these woes, VCs may be facing a significant tax set-back wrought by legislation. As described in this blog, the tax rate on carried interest may be increased from 15% to 38%.

Keep up with how much VC is evolving by joining us for tomorrow's webcast - "Venture Capital: Facing a Changing World" - as Jonathan Axelrad of Goodwin Procter, Steve Bochner of Wilson Sonsini and Gordy Davidson of Fenwick & West discuss how deal structures are adapting to fundamental changes in the VC world.

Change Blowing Your Mind? A Simple Chart to the Rescue

To help you navigate the numerous proposals at hand these days, Bob Hayward and others at Kirkland & Ellis have put together this 32-page chart. And it's good to see Marty Rosenbaum of Maslon Edelman launch a new blog - - which includes this nifty (and much shorter) cheat sheet to help you navigate these regulatory changes as well. Check it out!

Latest Trends of the M&A Environment

In this podcast, Bob Filek of PricewaterhouseCoopers discusses the state of the M&A market, including:

- What major deal trends have characterized 2009?
- What have been the biggest surprises?
- Why are cross-border deals at greatest risk due to the down market?
- What will restore CEO confidence?
- How big is the distressed M&A opportunity?
- What sectors are still consolidation hot spots?

- Broc Romanek

September 11, 2009

A Different View: "Early Problems for XBRL? A Mismatch with FASB's GAAP Codification"

Michelle Savage of XBRL US weighs in on my recent blogs expressing concerns over the SEC's mandatory XBRL deadline and the mismatch caused by the FASB's new codification of accounting standards:

There seems to be some confusion about the FASB codification as relates to XBRL and how it is used with the XBRL US GAAP Taxonomies. I wanted to see if I could help set the record straight - some of the recent blogs appear to imply that because of the FASB codification extension files, companies that reference it risk having their XBRL submissions rejected.

Here are a couple of points that will hopefully clear this up: the FASB codification is there for public company preparers simply to help them have as much information as they need to select the right element to match up with their financial statement captions. Typically a public company will first look at the taxonomy element label, then at the definition and then if they're still not sure, they'll look at the references to check the authoritative literature. It's not needed as part of the EDGAR submission, it doesn't even have to be used to complete an xbrl document.

Second, when a company submits their XBRL document to the SEC's EDGAR system, they submit the XBRL files plus any extension taxonomy that they created (essentially, if there were line items in their financial statements that were not in the US GAAP taxonomy, they have the ability of creating a new one and they need to send their company extension taxonomy which gives end users the label, definition, etc. so they know what the data means). Anyone using the 2009 US GAAP Taxonomy has no reason to send anything else. And this will be the same in 2010, 2011, etc.

Therefore, there's no reason for a preparer to submit the codification extension as part of their filing. To try to clarify this a bit further, we've revised the FAQ to explain further.

By the way, Dominic Jones recently gave kudos to Michelle for her remarks on the true meaning of XBRL for investor relations officers in this blog...

High-Frequency Trading: What's the Board's Fiduciary Duty to a Computer?

With AIG, Fannie and Freddie shooting to unpredicted heights in recent weeks - weeks when the volume of trading in their stocks represented a sizable chunk of the overall market's volume - I've begun to wonder whether the high-frequency trading craze is the latest innovation by Wall Street that poisons our financial system. Computers trading with each other certainly is not new - program trading has been around for many years and now accounts for roughly half of the market's daily trading volume. Even HFT has been around awhile; it's not something that has sprung up over the past year.

But has HFT reached a height of popularity (eg. NY Times article) where it's causing the market to be divorced so much from reality that it will scare retail investors away forever? AIG going to $50 makes me want to take my last dollar out of equities. The SEC and Congress recently have been delving into these concerns, including considering a ban on a subset of HFT, flash trading (see this "Zero Hedge" Blog).

I don't know much about high-frequency trading, so I did some research (here is a WSJ primer) and there is a divergence of opinion as to its value - just like most things. Some argue it makes the market more efficient (or in simpler terms, enables investors to analyze real-time data faster, see the "Electronic Market Microstructure" Blog). Others argue that it's a computer arms race that will just make the computer companies wealthy (eg. Rick Bookstaber).

Regardless of one's opinion of whether high-frequency trading is a good thing, there are some governance issues to consider. One is whether it makes sense for boards to have fiduciary duties to a shareholder who essentially is a computer? Another is what happens if a voting record date happens to fall on one of those days when the computers are battling it out to move your stock price - does it make sense for 30% or more of your vote to fall in the hands of those that run these computers and don't have a long-term interest in a company? Put another way, will high-frequency trading purposedly occur on voting record dates to gain leverage over a company? It may argued that this strategy already is employed by some.

Short-termism is growing by leaps and bounds as the "buy and hold" philosophy recently has taken its lumps. What that means for public companies and shareholder activism surely must be a prominient part of the governance reform debate. Let me know what you think.

More on "The Mentor Blog"

We continue to post new items daily on our new 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:

- Director Independence Standards: Confusing and Lax?
- Auditors Under Pressure: More Lawsuits on the Way?
- Some Thoughts on Using Twitter: My Experiences So Far
- Do You Need an Annual Meeting Transcript?
- How to Market Yourself Through Us
- Twitter This, Twitter That: Corporate & Securities Law Issues to Consider
- A Primer on "Overboarded" Directors

- Broc Romanek

September 10, 2009

The Return of Virtual-Only Shareholder Meetings? Herman Miller's Third Year in a Row

Well, it's been done before. Annual meetings held solely online. Inforte was first company to conduct their annual meeting solely online in April '01. Ciber did it in '02 and ICU Medical in '04. Siebel Systems had plans to do it in '03 - but changed course in the face of criticism.

Now we have a relatively small company - Herman Miller - that filed this proxy statement last week, indicating that it would be the latest company to hold a virtual meeting. And you want to know the biggest surprise of it all - this will be the third year in a row that the company will do so! Slipped under the radar. Anyone aware of any other companies out there doing this?

Although I drafted them about eight years ago, these FAQs on conducting electronically-only meetings remains the best thing out there on the topic (because its about the only thing written on the topic) - it's posted in our "Annual Shareholder Meetings" Practice Area.

Here is one of the FAQs worth considering:

What risks does a company face if it holds an electronic-only stockholders' meeting with no physical counterpart?

Increased shareholder activism is quite possible - as well as potential negative media coverage based on the scorn of disappointed stockholders that like to have the opportunity to attend physical meetings.

Some investors have expressed concerns that electronic-only meetings would deprive them of the opportunity to meet with company representatives face to face. They believe that these physical meetings allow investors to better express their positions - and that management and the board listen more closely when communications are made in person.

After Delaware changed its laws in 2000, the Council of Institutional Investors wrote letters to the CEOs of all companies incorporated in Delaware urging them not to conduct electronic-only meetings. Unions also are concerned about the changes in the Delaware law.

Particularly for matters that are contested at a stockholders' meeting, electronic-only meetings pose the risk that a company can be surprised by large stockholders who vote at the meeting or change their vote - thereby making the outcome of meetings less predictable.

A risk for management is that an electronic-only meeting likely would result in greater attendance with more questions asked compared to a physical meeting - since attending an electronic meeting is fairly easy. This is a risk for those companies who like their meetings small and intimate (i.e. the fewer questions, the better) - but an advantage for those who don't mind the attention.

Whistleblowing and In-House Counsel: Not Blowing in the Wind?

From Keith Bishop: A few weeks ago, the 9th Circuit Court of Appeals delivered an opinion in Asdale v. International Game Technology. This case involved claims by two former in-house lawyers under the whistleblower protection provisions of Sarbanes-Oxley.

The lawyers' former employer argued, among other things, that they should not be able to maintain their SOX claims because doing so would require the use of attorney-client privilege. The 9th Circuit agreed with the analysis of the Third Circuit (ie. Kachmar v. SunGard Data Systems, 109 F.3d 173 (3d Cir. 1997)) and Fifth Circuit (i.e. Willy v. Administrative Review Board, 423 F.3d 483 (5th Cir. 2005)) - and held that confidentiality concerns alone did not warrant dismissal of the lawyers' claims. The 9th Circuit also noted that nothing in the SOX whistleblower provisions indicates that in-house attorneys are not also protected "even though Congress plainly considered the role attorneys might play in reporting possible securities fraud." We've been posting memos on this case in our "Whistleblowers" Practice Area.

Attorney-Client Privilege Issues for Executive Email Communications

Here's more news on the privilege front, courtesy of Mike Melbinger of Winston & Strawn from his "Melbinger's Compensation Blog" on

Because the work of executive compensation professionals often involves email communications among executives, I wanted to note a recent case on the extent to which the attorney-client privilege would apply to communications between the executive and his/her lawyer. The issue in Stengart v. Loving Care, No. A-3506-08T1, slip op. (N.J. Super. Ct. App. Div. June 26, 2009), was whether the privilege would apply to communications from an executive's personal email account, which the executive accessed from a company computer on company time (while at work), to an outside lawyer representing her in connection with her departure from the company.

This is an issue that should be important to anyone who:

- Advises executives in compensation and/or employment matters
- Advises employers in compensation and/or employment matters, or
- Drafts company computer-use policies

The application of the privilege to email sent from the workplace is fact-intensive. The factual analysis determines whether or not the communication was truly confidential. This is that case for both company-owned email accounts and personal email accounts accessed via company computers from the workplace. The leading federal case on the question, In re Asia Global Crossing, Ltd, 322 B.R. 247 (S.D.N.Y. 2005), lays out several factors to consider:

- Does the company maintain a policy banning personal or other objectionable use;
- Does the company monitor the use of the employee's computer or e-mail;
- Do third parties have a right of access to the computer or e-mails; and
- Did the company notify the employee, or was the employee aware, of the use and monitoring policies?

The approach adopted by the In re Asia Global court and every other court we surveyed, focuses on the effect that the company policy had on the employee's expectation of confidentiality. A strong and clear company policy can make it impossible for an employee to claim that his/her communication was confidential. On the other hand, a policy that is unclear or does not cover a certain type of electronic communication will leave the door open for the employee to claim that his/her communication was confidential.

However, the court in Stengart v. Loving Care held that emails sent by an employee from her personal, web-based, password protected email account, accessed from a company-owned computer while at work, were protected by the attorney-client privilege. The court held this, despite the company having a computer use policy which indicated that employees had no expectation of privacy in their computer use, and that all data stored, created, or transmitted via company computer was the property of the company. The Stengart court may have misunderstood the role of company policy. The issue should not be whether a court will enforce company policy, but rather whether company policy had the effect of placing the employee on notice that his/her electronic communications through company computers could not be considered confidential.

Many thanks to summer associate Ben Ellison from Notre Dame for his research and drafting help on this Blog.

- Broc Romanek

September 9, 2009

The PCAOB: Big Changes Afoot?

Last week, the PCAOB announced that one of the founding Board Members - Charley Niemeier - will be leaving the PCAOB. His term expired a year ago and his actual departure date is unknown. Upon his departure, there will be only three of the five Board slots filled - with Bill Gradison's term expiring in October and potentially slimming down the Board to two (remember in the mid-90s when Arthur Levitt and Steve Wallman were the only two SEC Commissioners - Commission meetings are somewhat of a joke when its two guys talking to each other).

It's likely that SEC Chair Schapiro will act before the PCAOB gets too thin up top - and by filling three new slots, the PCAOB's direction could well change...

PCAOB Staff Issues Guidance on Impact of FASB Codification on Its Standards

Last week, the PCAOB Staff issued these "Questions and Answers" to provide guidance on how the FASB's codification project impacts references to authoritative literature.

Farewell to a Corp Fin Giant: Bill Toomey

Starting back when the number of SEC Staffers was substantially smaller, Bill Toomey was a Corp Fin staple for nearly 40 years before he retired ten years ago. Here is a note that Corp Fin circulated yesterday:

It is with great sadness that we inform you that one of our former Division members, Bill Toomey, recently passed away. Bill joined the Division in 1959 as an attorney. He enjoyed a long career in the Division, serving in many important positions and retired in 1998. Those of you who had the opportunity to work with Bill will always remember his consistent willingness to spend time sharing his knowledge with less experienced attorneys and his overall character as a consummate gentleman. Several of those whom Bill mentored continue to serve in the Division today. Bill took great pride in his SEC career and represented the best of the Commission in the many years that he served on the staff.

You can make memorial contributions to the Hillandale Volunteer Fire Department (24), 10617 New Hampshire Ave, Silver Spring, MD 20903 or Montgomery Hospice, 1355 Piccard Dr, Rockville, MD 20850.

- Broc Romanek

September 8, 2009

Another IG Report: SEC Bears Barrage of Renewed Madoff Criticism

Last Wednesday, the SEC released this 22-page executive summary from it's Inspector General David Kotz regarding the SEC's failure to nail Bernie Madoff, ahead of the full 477-page report released late Friday (note that it's the "public" version, some names have been redacted). SEC Chair Schapiro released this statement with the executive summary - and this one with the full report, both of which highlight the 13 reforms undertaken post-Madoff.

As could be expected, the IG's report resulted in front-page news as the gruesome details of the SEC's failures would sink any former Staffer's heart. And this is a story that won't end for quite some time (FEI's "Financial Reporting" Blog notes Senate Banking Committee hearings commence this Thursday) and is likely to produce more heartache. For example, I can't bear the thought of the SEC promoting the fact that they may create a "Fraud College," as noted in the Bloomberg article. Such nomenclature screams out that the SEC hasn't been doing the basics when it comes to training.

The repeated bashing of the SEC - unfortunately, much of it warranted - over the past year surely has made a folk hero of its Inspector General David Kotz. This is notable from a historical perspective because the SEC's IG was someone that hardly knew existed for decades and decades. Now it is among the highest profile jobs at the agency.

Given that the Madoff report is 477 pages, it's likely that Kotz had a lot of assistance writing it. That's quite a tome. The IG's organization chart indicates that the office includes 18 Staffers (including Kotz himself) - but page 7 of the report lists a total of nine in the Office (including two summer interns) that worked on the Madoff investigation. On page 5 of the report, it's noted that 4 forensic contractors were hired to help investigate (as well as an email recovery expert). Someone will get smart and publish this thing as a book...

Upshot of Madoff Mess? SEC to Finally Be Self-Funded?

Ironically, this Bernie Madoff mess may result in the SEC finally getting funded more adequately. Cries for self-funding have resurfaced, led by Senator Schumer who issued this press release last Thursday noting that he is drafting legislation that would enable the SEC to fund itself from the fees it collects. The SEC historically has collected a level of transaction and registration fees for the US Treasury Department that far outweighs - by about 50% - the funds that Congress appropriates to the SEC to operate. It's a gravy train that will be hard for the US government to wean itself from.

Beginning in early August, SEC Chair Schapiro began beating the drum for self-funding, as noted in this Financial Times article. This follows a long-line of SEC Chairs seeking the same thing, as it's hard to run an independent agency when you are dependent on politicians for funding. The SEC is one of only two financial regulators in that must go through the annual Congressional appropriations process. Banking regulators got self-funding a couple of decades ago.

Drilling down into the details, the SEC is part of the appropriations and budget request that includes the Departments of Justice and Commerce. Indirectly, Congress uses the fees that the SEC collects to help balance the budgets of the DOJ and Commerce, even though those paying the fees are not receiving benefits from those agencies. Essentially, the excess fees that market participants pay serve as a "tax." Here is a mid-'02 GAO report that provides numerous details about a self-funding alternative.

Ah, perhaps a silver lining to the Madoff fiasco...

- Broc Romanek

September 3, 2009

Cool Stuff from Europe: "Wall Street" English and More

Back from a record-length vacation (two weeks without email!) and the papers over there are filled with stories about banker bonuses and how the French have gotten their bankers to agree to some restrictions. French President Sarkozy pushed hard for these restrictions and he intends to make it a big point at the upcoming G-20 summit so that French bankers don't seek employment elsewhere. Here is a WSJ article from last week describing these developments.

On a lighter note, I thought I would share a few vaca videos that may interest you:

1. "Wall Street" English

One of my favorite moments in Paris was spotting a billboard on the subway promoting the Wall Street Institute, which promises to teach you how to speak "Wall Street" English and more. Maybe talking the talk in Paris is all it takes to be an i-banker? Here is the billboard:

2. Public Company Offerings in The Hague

While walking down the street in The Hague, I spotted a storefront which had a host of securities law and compliance books - unbelievable, eh? - including one entitled "Prospectus for the Public Offering of Securities in Europe." See if you can spot it:

3. Dancing Along the Seine River

One of the nicer sights in Paris wasn't in the guide books. We first spotted it during one of the river boat rides in the Seine - folks of all ages swing dancing along the banks (and many more just eating cheese and drinking wine). The second video below is a closer look as I went in to investigate. Like a storybook come true:

- Broc Romanek

September 2, 2009

Survey Results: Corporate Airplane Use by Outside Directors

We recently wrapped up our Quick Survey on "Corporate Airplane Use by Outside Directors." Below are our results:

1. At our company, when it comes to allowing non-employee directors to use the company's plane to travel to - and from - board meetings:
- Yes, we allow - but we disclose the aggregate incremental costs associated with such use as director perks in the Director Compensation Table - 1.0%
- Yes, we allow - but we believe such travel is for a business purpose and thus do not disclose it in the proxy statement - 60.8%
- Yes, we allow - but we believe such travel is for a business purpose and therefore only disclose that such travel is permitted in the narrative portion of the proxy statement - 12.4%
- Yes, we allow - but only a percentage of the amounts associated with such use is considered for a business purpose - so some of the cost is disclosed in the Director Compensation Table - 0.0%
- No, we don't allow non-employee directors to fly on the company plane to our board meetings - 7.2%
- No, as a result of a recent change in our travel policy, we no longer allow non-employee directors to fly on the company plane to board meetings - 1.0%
- We don't have a company plane - 17.5%

Please take a moment to respond anonymously to respond to our "Quick Survey on "Affiliates" for Rule 144 Purposes."

Poll Results: How Do You Look Up a SEC Rule?

Recently, I posted a poll about how our members look up a SEC rule. Here are the results, as members look up a SEC rule by referring to:

- SEC's web site - 16.3%
- Another web site (eg. U. of Cincinnati's site) - 38.4%
- Free financial printer handbook - 12.1%
- CCH looseleaf service -16.8%
- Other - 11.6%
- What SEC rules? - 2.6%

Greg Wiessner of Wright Express Corporation said he liked the poll but noted: "How come you didn't include the Appeal Securities Act Handbook (a/k/a "the Red Book" or "Aspen Book")? As a junior associate, I remember being confounded by a senior partner asking me to find a rule and telling me to either look it up in CCH or online - both of which I found useless.

Shortly thereafter, another partner joined the firm and asked me - knowing I worked on securities matters - to borrow my "Handbook" for an hour because his had not come in yet. I was embarrassed to admit I didn't even know what he was referring to. He promptly changed the order from one to two books so I'd have my own. When it showed up, I was amazed that each act was tabbed by practical designation, not all in one big mess."

Trivia: The "Handbook" was named after the now defunct Appeal Printing Company, which originally published it.

Non-U.S. Issuer Lawsuits

In this podcast, Bruce Vanyo of Katten Muchin Rosenman discusses the increasing trend of non-US issuers facing lawsuits in NY courts, including:

- Are more foreign issuers being sued in the US in securities class actions?
- Can you describe how the non-US issuers are being sued in New York?
- What are the causes of these developments?
- Is there anything a non-US company should do in an attempt to stave off being sued in New York?

- Broc Romanek

September 1, 2009

Stir It Up: Latest Controversial Textron Work Product Decision

The most recent U.S. Circuit Court of Appeals for the First Circuit decision in United States v. Textron - a 3-2 en banc decision - has caused quite a stir. This decision follows one from January, in which I blogged thoughts from Stan Keller, who noted then: "The First Circuit decision may amount to an illusory victory for Textron with mischievous consequences."

In its new en banc decision, the court significantly narrows the "work product" doctrine by ruling that it did not protect tax accrual work papers. The court found that the law "does not protect from disclosure documents that are prepared in the ordinary course of business" instead of in anticipation of litigation or in preparation for trial. Textron had argued that if it were not for the possibility of litigation with the IRS, the papers would not be prepared at all because no reserves would be needed. We have posted the opinion - and memos analyzing it - in our "Audit Documentation/Work Papers" Practice Area.

In their 26-page dissent, Judges Torruella and Lipez noted that there was a split among the circuits and that the "time is ripe for the Supreme Court to intervene and set the circuits straight on this issue." The depth of the dissent may help those fighting for work product protection going forward as it seems more reasoned than the majority opinion.

The Textron decision is a continuing attack on the work product doctrine, which is likely to continue partly because the definition of "work product" is not all that clear. A split in the 2nd Circuit - as well as the far-reaching implications of the 1st Circuit's decision - may well lead the US Supreme Court to grant certiorari in this case.

Foreign Corrupt Practices Act Going Strong: SEC Brings "Control Person" Charges

As we've been covering in this blog for a while, there has been a marked uptick in activity in the Foreign Corrupt Practices Act area over the past year or so. This is highlighted by SEC Enforcement Director Rob Khuzami's recent speech - discussing his first 100 days in office - announcing the formation of a new FCPA unit, which will seek to develop new and proactive approaches to detecting FCPA violations and work more closely with foreign regulatory counterparts to develop a global approach to prosecution. This likely signals the end of the de-centralized SEC enforcement of the FCPA, with each regional office having the authority to bring FCPA cases.

For example, the SEC recently settled an enforcement action against Nature's Sunshine Products and its then-COO and CFO for FCPA violations. What makes this case interesting is that the SEC did not allege any illegal activity (or knowledge of the illegal activity) on the part of the COO or CFO, but rather invoked the often-forgotten "control person" doctrine in Section 20(a) of the Exchange Act to allege that the two men had violated the FCPA based on their position as control persons. It is fair to say that this case serves notice that a broader enforcement effort against executives who fail to adequately supervise employees is underway.

Also notable is how the Department of Justice recently invoked the Travel Act to prosecute a case against Central Components for bribery of a non-government official (the company also pled guilty to FCPA violations). This case demonstrates that the government is casting a wide net to prosecute bribery. We have been posting memos analyzing all the activity in this area in our "Foreign Corrupt Practices Act" Practice Area - and Kevin LaCroix recently covered a host of FCPA developments in his "D&O Diary Blog."

- Broc Romanek