Be sure to check out the Thanksgiving edition of the Dave & Marty radio show, where Marty and I discuss, among other fascinating topics, the federal securities law provisions for which we are most thankful. The other show topics include:
- Marty’s tips for tax opinions
- Things people say that irk us
- Favorite train songs
I also discuss the recent ISS Policy Update, including what to expect under the new “holistic” executive compensation analytical approach that will work off of a significantly condensed list of problematic pay practices.
If you have any topics that you would like to hear covered on the radio show (whether related to the securities laws or not), please send them my way.
COSO to Update the Internal Control Framework
As the internal control framework developed by the Committee of Sponsoring Organizations of the Treadway Commission nears its twentieth birthday, COSO has announced a project to review and update the framework. This update isn’t designed to alter the core principles of the framework, but rather will seek to “facilitate more robust discussion of internal control” through refinements to some of the concepts and guidance included in the framework. PwC is going to support the project, with an anticipated publication date in 2012.
FINRA IPO Abuse Rule Effective in May
As I noted in the blog last month, the SEC recently approved FINRA Rule 5131, which will regulate practices such as quid pro quo arrangements, “spinning,” inequitable penalty bids and the acceptance of market orders for new issue shares before commencement of secondary market trading. FINRA has now issued Regulatory Notice 10-60, which announces that the effective date of new Rule 5131 is May 27, 2011.
Here is news culled from this Morrison & Foerster memo: In a speech last week on the Foreign Corrupt Practices Act, the head of the U.S. Department of Justice’s Criminal Division proclaimed a “new era of FCPA enforcement.” Assistant Attorney General Lanny Breuer said enforcement of the FCPA is “stronger than it’s ever been — and getting stronger.” He described “historic” growth in FCPA actions and penalties ($1 billion+ in past 12 months and 35 individuals awaiting trial) and took on critics of the DOJ’s increasingly aggressive enforcement strategies. You “are right to be more concerned.” “We are here to stay.” Mr. Breuer concluded with concrete advice to companies “worried” about the new climate of “vigorous” enforcement, including encouraging companies to self-report.
According to this blog, you shouldn’t be surprised to see NBA star Ben Wallace in law school one day. That would be one mammoth lawyer!
Mailed: November-December Issue of The Corporate Executive
The November-December Issue of The Corporate Executive includes pieces on:
- Trap for the Unwary: Carrying Forward Contributions Under a Section 423 ESPP
- IRS Issues Private Letter Ruling on Division of Restricted Stock Pursuant to Divorce
- Purchase Date as Grant Date: Not a Bad Idea for Purchase Date FMV Only ESPPs
- The Box: Awards Contingent Upon Shareholder Approval of an Additional Allocation of Shares to the Plan
- Section 6039 Forms Expected Any Day Now
- Conducting Risk Assessments–A Step-by-Step Action Plan
- Examples of Effective Say-on-Pay Disclosures
As usual, Dominic Jones has been providing great coverage about how two companies recently experienced leaks on their IR web pages – where earnings information was released inadvertently ahead of the planned release time (see his coverage of Disney and NetApp). In addition to this coverage, Dominic blogged this piece yesterday: “IR website vendors explain how they prevent disclosure leaks.” It’s worth checking out to help ensure your company won’t experience this type of snafu.
Recently, I enjoyed reading Nell Minow’s piece about overcoming adversity and some reader responses like this one. Good piece to show my kids.
The Latest on IASB’s Loss Contingency Standard
Similar to the controversial FASB project to update its loss contingency standard (see this blog for the latest on that), the IASB is working on updating its own contingency standard. Here is news, courtesy of Tom White of WilmerHale: At its meeting on November 16, the IASB decided to modify its proposed standard for recognition of a loss contingency, IAS 37. Responding to comments – including the letter submitted by an ABA Committee – the IASB decided to modify the proposed recognition standard to reinstate the requirement that the preparer determine that it is more likely than not that a liability exists. The IASB also decided to provide more guidance about how to apply the standard to litigation contingencies. The IASB has also indicated that, in light of other priorities, it does not expect to return to IAS 37 until the 2nd half of 2011, at the earliest.
FASB Announces Post-Implementation Review Process
As Edith Orenstein blogs in FEI’s “Financial Reporting Blog,” the Financial Accounting Foundation (FAF) – which oversees the FASB – announced the launch of a post-implementation review process. This action follows up, in part, on a recommendation made by the SEC’s Committee on Improvements to Financial Reporting (CIFiR) aka the “Pozen Committee” – so named in honor of its chair, Bob Pozen. The recommendation was one of many recommendations aimed mainly at the SEC, but also at FASB and the PCAOB, in the final CIFiR report issued in August 2008. Edith also blogs about the appointment of the new FAF CEO (Terri Polley) and four new trustees.
On Friday, ISS issued its 2011 Policy Updates. Below is a description of them, courtesy of ISS:
Each year, ISS undertakes an extensive process to update the policies that inform its benchmark proxy voting recommendations. Our commitment is to make this process open and transparent, so that all members of the financial community–including our institutional investor clients and corporate issuers–understand the foundations of our benchmark policies and proxy voting recommendations. Our objective in this process is to address critical emerging corporate governance issues in a way that informs and enhances dialogue among investors, boards, and companies.
Our broad-based policy formulation process collects feedback from a diverse range of market participants through multiple channels: an annual Policy Survey of institutional investors and corporate issuers, roundtables with industry groups, and ongoing feedback during proxy season. ISS’ Global Research Policy Board, comprised of our global research heads and subject matter experts, uses this input in forming draft policy updates, the most significant of which are published for an open review and comment period. Policy changes will be effective for shareholder meetings on or after Feb. 1, 2011.
On Oct. 27, ISS released its key draft 2011 proxy voting policies to obtain feedback from institutional investors, corporate issuers, and industry constituents. The comment period ran through Nov. 11 and solicited feedback on 11 updates to ISS’ proxy voting policy guidelines in markets worldwide. The U.S. topics covered included “say on pay” frequency and “say on golden parachute” proposals, independent chair proposals from shareholders, director attendance, and authorized capital requests.
Independent Chair Proposals
The draft U.S. policy update regarding independent chair proposals included consideration of compelling company-specific circumstances that challenge the efficacy of appointing an independent chair. The comments suggested that a company’s disclosed rationale for maintaining a combined leadership role would not be a meaningful or useful input in determining a vote on these proposals in extenuating circumstances. These comments were consistent with the responses from the investor participants at an ISS policy roundtable in October. In fact, many institutional investors stated that ISS should not change its policy and should continue to evaluate these proposals on a case-by-case basis, taking into account whether the company has a robust counterbalancing governance structure (including an independent lead director with clearly delineated duties) and any problematic performance, governance, or management issues. Based on this feedback, ISS will not be changing its policy on independent chair proposals in 2011.
Management “Say on Pay” Votes
This is a new proxy item required by Dodd-Frank. The Dodd-Frank Act, in addition to requiring management “say on pay” (MSOP) votes on compensation, requires that each proxy for the first annual or other meeting of shareholders occurring after Jan. 21, 2011, also include an advisory vote to determine whether, going forward, the “say on pay” vote by shareholders should occur every one, two, or three years. In line with overall client feedback, ISS is adopting a new policy to recommend a vote FOR annual advisory votes on compensation, which provide the most consistent and clear communication channel for shareholder concerns about companies’ executive pay programs.
The MSOP is at its essence a communication vehicle, and communication is most useful when it is received in a consistent and timely manner. ISS supports an annual MSOP vote for many of the same reasons it supports annual director elections rather than a classified board structure: because this frequency provides the highest level of accountability and direct communication by enabling the MSOP vote to correspond to the majority of the information presented in the accompanying proxy statement for the applicable shareholders’ meeting. Having MSOP votes every two or three years, covering all actions occurring between the votes, would make it difficult to create the meaningful and coherent communication that the votes are intended to provide. Under triennial elections, for example, a company would not know whether the shareholder vote references the compensation year being discussed or a previous year, making it more difficult to understand the implications of the vote.
Vote on Golden Parachutes
This is a new proxy item required under the Dodd-Frank Act. ISS’ policy will be to recommend CASE-BY-CASE on proposals to approve the company’s “golden parachute” compensation, consistent with ISS’ policies on problematic pay practices related to severance packages. Features that may lead to an AGAINST recommendation include:
- Recently adopted or materially amended agreements that include excise tax gross-up provisions (since prior annual meeting);
- Recently adopted or materially amended agreements that include modified single triggers (since prior annual meeting);
- Single-trigger payments that will happen immediately upon a change in control, including cash payment and such items as the acceleration of performance-based equity despite the failure to achieve performance measures;
- Single-trigger vesting of equity based on a definition of change in control that requires only shareholder approval of the transaction (rather than consummation);
- Potentially excessive severance payments;
- Recent amendments or other changes that may make packages so attractive as to influence merger agreements that may not be in the best interests of shareholders; and
- In the case of a substantial gross-up from preexisting/grandfathered contract: the element that triggered the gross-up (i.e., option mega-grants at a low stock price, unusual or outsized payments in cash or equity made or negotiated prior to the merger); or the company’s assertion that a proposed transaction is conditioned on shareholder approval of the golden parachute advisory vote. ISS would view this as problematic from a corporate governance perspective.
In cases where the golden parachute vote is incorporated into a company’s MSOP vote, ISS will evaluate the “say on pay” proposal in accordance with these guidelines, which may give higher weight to that component of the overall evaluation. ISS’ policy on change-in-control packages has evolved over the past several years in response to client feedback and changes in common practice. ISS’ policy, informed by shareholder input, has focused particularly on severance packages that provide inappropriate windfalls and cover certain tax liabilities of executives.
ISS’ current policy is to recommend a vote AGAINST or WITHHOLD from individual directors who attend less than 75 percent of the board and committee meetings without a valid excuse, such as illness, service to the nation, work on behalf of the company, or funeral obligations. If the company provides meaningful public or private disclosure explaining the director’s absences, ISS will evaluate the information on a CASE-BY-CASE basis, taking into account the following factors:
- Degree to which absences were due to an unavoidable conflict;
- Pattern of absenteeism; and
- Other extraordinary circumstances underlying the director’s absence.
The key policy change is to remove the private disclosure option for explaining absences; articulating the reasons that are acceptable; and clarifying the policy application when the company’s attendance disclosure does not conform with SEC requirements. In 2011, ISS will generally recommend a vote AGAINST or WITHHOLD from individual directors who attend less than 75 percent of board and applicable committee meetings (with the exception of new nominees). Acceptable reasons for director(s) absences are generally limited to the following:
- Medical issues/illness;
- Family emergencies; and
- If the director’s total service was three meetings or less and the director missed only one meeting.
These reasons for director(s) absences will only be considered by ISS if disclosed in the proxy or another SEC filing. If the disclosure is insufficient to determine whether a director attended at least 75 percent of board and committee meetings in aggregate, ISS will generally recommend a vote AGAINST or WITHHOLD from the director. The policy update aligns the application of the policy with best governance and public disclosure practices and is generally supported by the feedback received during ISS’ comment period. Directors who do not attend their board and committee meetings cannot be effective representatives of shareholders. Anyone who accepts a nomination to serve as director should be prepared to make attendance at meetings a top priority.
Customarily, boards set schedules for routine board and committee meetings at least a year in advance. Moreover, attending at least 75 percent of the meetings is not an unreasonable standard for directors to meet, as it still allows sufficient leeway for meetings missed due to legitimate reasons. Issuers are encouraged to proactively provide additional explanatory disclosure on poor attendance for the benefit of shareholders in the proxy or another SEC filing.
Shareholder Ability to Act by Written Consent
After a long hiatus, investors have resumed filing proposals requesting shareholders’ ability to act by written consent. However, the corporate governance landscape has changed tremendously. ISS acknowledges that a meaningful right to act by written consent is a fundamental right that enables shareholders to take action between annual meetings. However, the potential risk of abuse associated with the right to act by written consent such as bypassing procedural protections, particularly in a hostile situation, may outweigh its benefits to all shareholders in certain circumstances. Due to alternative mechanisms that have evolved for shareholders to express concern (e.g., a majority vote standard in board elections, the right to call a special meeting) and an evolving governance landscape, ISS will be making a more holistic consideration of a company’s overall governance practices and takeover defenses when evaluating these proposals.
ISS’ current policy is to generally recommend a vote FOR management and shareholder proposals that provide investors with the ability to act by written consent, taking into account the following factors:
- Shareholders’ current right to act by written consent;
- Consent threshold;
- The inclusion of exclusionary or prohibitive language;
- Investor ownership structure; and
- Shareholder support of, and management’s response to, previous shareholder proposals.
Based on feedback received from both issuers and institutional investors from ISS’ policy roundtable in October, ISS will consider, as an additional factor, the company’s overall governance practices and takeover defenses (with emphasis on shareholders’ ability to call special meetings) in evaluating these proposals. In 2011, ISS will continue to generally recommend a vote FOR management and shareholder proposals seeking to provide shareholders with the ability to act by written consent, after taking into account the factors mentioned above. However, ISS will recommend on a CASE-BY-CASE basis (and may recommend AGAINST) if, in addition to the considerations above, the company has the following provisions:
- An unfettered right for shareholders to call special meetings at a 10 percent threshold;
- A majority vote standard in uncontested director elections;
- No non-shareholder approved pill; and
- An annually elected board.
Gearing Up for Say-on-Pay: What Clients Are Asking Now
We have posted the transcript for our recent CompensationStandards.com webcast: “Gearing Up for Say-on-Pay: What Clients Are Asking Now.” Don’t forget that those that renew for 2011 now – all 2010 memberships expire at the end of the year – will gain access to these two upcoming say-on-pay webcasts:
Can a man love both Bethany McLean and his wife at the same time? I’ve watched several interviews now featuring Bethany and Joe Nocera (the NY Times’ columnist who spoke so well at our executive pay conference last year) and both of them clearly are the voice of reason. Here is their interview on Charlie Rose – and here is their interview from “The Daily Show.”
For a random act of culture, check out this video of a flash mob doing an oratorio at Macy’s.
Matrixx Initiatives v. Siracusano: The Upcoming SCOTUS “Materiality” Case
Many of us are eagerly awaiting the Supreme Court’s decision in Matrixx Initiatives v. Siracusano as it will be the first SCOTUS decision on “materiality” since Basic v. Levinson in 1988 and TSC Industries v. Northway in 1976. This article explains the case nicely.
With oral argument recently set for January 10th, the briefs – including numerous amicus briefs – have been submitted – and are now available. Among others, the SEC and groups of professors have weighed in on this important case.
SEC’s RiskFin Director Hu: Back to Academics
As I tweeted yesterday, I was not surprised to hear that the SEC’s RiskFin Director Henry Hu was returning to his post at the University of Texas after little more a year on the job. I would imagine that most academics would have trouble shifting gears from theory in teaching to the realities of regulation – and my guess is that this dramatic change played a role in Henry’s impending departure. It will be interesting to see who the SEC taps as the next Director given this development…
According to this recent KPMG study, companies planning to go public consider corporate governance to be their biggest challenge. Under the study, the top three challenges in preparing for an IPO are:
- Improving corporate governance – 64%
- Preparation of a robust business plan – 40%
- Preparation of financial track record – 36%
How long do these pre-IPO executives believe that it would take their company to prepare for going public?
- 12 to 18 months – 15%
- 6 to 12 months to prepare – 54%
- 6 months or less – 10%
The Latest Venture Capital Developments
In this podcast, Jonathan Axelrad and Anthony McCusker of Goodwin Procter discuss the latest developments impacting the venture capital community:
- What is the climate for venture capital these days?
- What types of companies are VC investors targeting?
- Are companies being funded outside the US?
Survey Results: Directors from Financial Service Sectors Weigh In
Recently, PwC held its annual Financial Services Audit Committee Forum in New York. As I understand it, it’s the biggest annual gathering of board members from across the financial services sectors, including banks, mutual funds, hedge funds, private equity firms, insurance companies, broker-dealers, REITs and related service providers in attendance. During the Forum, PwC polled attendees on several topics related board governance and financial reform:
- 28% of respondents indicated they feel their board currently spends too much time on compliance issues and not enough time on strategic business decisions
- 18% said that the Dodd-Frank Act would require their boards to take on new responsibilities traditionally handled by executive management.
- 18% also said they think that Dodd-Frank blurs the line between governance and management with regard to the role and responsibilities of board members
- As a result of financial reform, 44% said their firms’ would increase spending on compliance
- 58% of those polled believe that the tone at the top of the organization and the corporate culture set by the CEO will have the greatest impact on promoting the safety and soundness of the financial system
- Regarding new “say on pay” provisions, 83% of those polled say that are confident in the current effectiveness, quality and transparency in communicating with investors about executive compensation
Maybe this is a bad idea. You tell me. But I thought I’d try an occasional installment of fictional dialogue to inject a little more humor into this blog. Here is my first one:
Sam (from the Controller’s office): Hi Jimmy. Can you review the draft of our Form 10-Q and provide us with any comments by the end of today?
Jimmy (from the Legal Department): I would love to but I have at least five meetings today. Plus I have a bad “feeling” about this quarter.
Sam: Bad feeling. How so?
Jimmy: Well, my coin dealer told me it was valuable – but I think I was shafted. [Pulls quarter from pocket.]
Sam: Oh, that’s so ’70s Jimmy. Coin collecting is long dead. Just review the Q and mark it up pronto.
- – - – -
Jimmy (muttering to himself, back at his desk): He doesn’t know what he’s talking about. Being a numismatist is where it’s at; it’s been listed in the Top 100 hobbies by “Hobby World” magazine for years. We’ll see what he thinks about this…
- – - – -
Sammy (yelling on the phone): What is this Jimmy? I have your comments right here.
Sam: They’re so…so…symmetrical. It looks like you just struck every 8th word!
Sam (slamming down the phone): Crazy. But it’s probably the best work you’ve done around here.
Next episode: Jimmy teeters towards the “dark side”…
Please send me your ideas for “Jimmy from Legal” episodes. Or let me know how I can spice this feature up…
More on “The Mentor Blog”
We continue to post new items daily on our blog – “The Mentor Blog” – for TheCorporateCounsel.net 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:
- Impact of FINRA Regulations on the Structuring and Distribution of Public Offerings
- Home Countries Unwilling to Allow Inspections: Non-US Auditors Must Prove SOX Compliance
- Is the DOJ Moving Beyond the FCPA?
- An Insider’s View of the SEC: Principles to Guide Reform
- The Countrywide Settlement: Significant Questions
A while back, I blogged about what might be the sleeper in the Dodd-Frank Act and received many interesting responses from members. Here are a few that I received:
- Pay disparity disclosures – In his OnSecurities Blog, Marty Rosenbaum discusses pay disparity disclosures as a sleeper. The SEC won’t propose rules in this area before next summer and many are hoping for Congress to at least pass a technical corrections bill to fix the language in this provision.
- SEC’s bounty program – Under Section 922, if a whistleblower provides information on a securities law violation that leads to monetary sanctions of more than $1 million, the SEC will be required to pay the whistleblower an amount ranging from ten percent to 30 percent of what has been collected. This bounty would apply to a wide range of securities law violations, including violations of the Foreign Corrupt Practices Act. Even before the SEC proposed rules under this provision two weeks ago, law firms were warning how this could be a problem for companies who rely on employees to report potential problems through their own compliance chains, as employees will now a big incentive to go directly to the SEC.
- Congo conflict materials – The Act has a new requirement to disclose in an annual report whether a company products contain minerals from Congo or neighboring countries and if so, what steps those companies are taking to track the source of the minerals. Believe it or not, PBS has a video on conflict minerals disclosure.
- Expanded authority of SEC’s Enforcement to use administrative courts – In this Reuters article, it is noted that a little noticed provision in Dodd-Frank gives the SEC additional authority to seek civil penalties and fines against respondents in administrative proceedings rather than in federal court.
- Elimination of rating agency exemption from Reg FD – Section 939B directs the SEC to amend Reg FD within 90 days of the law’s enactment to remove the exemption for rating agencies that is contained in Reg FD. I’ve blogged a bit about this since I first asked for sleeper feedback since the SEC adopted rules to effectuate it, which created a stir.
Dodd-Frank: An Unintended Consequence?
Different than a “sleeper” is the unintended consequence of a Congressional act. In her footnoted blog, Michelle Leder recently noted this unusual Form 8-K filed by Newmont Mining. Well, perhaps it formerly was unusual but going forward, disclosure about a miner carrying his lunchbox may become the norm…
We’re done! Just in time for mandatory say-on-pay, Dave Lynn and Mark Borges have finished updating the Lynn, Borges & Romanek’s “2011 Executive Compensation Disclosure Treatise & Reporting Guide.” This means that:
2. Hard copy - For those that want a hard copy of this massive 2011 Treatise, note that it is not part of CompensationStandards.com – so it must be purchased separately. However, CompensationStandards.com members can obtain a 40% discount by trying a no-risk trial to the hard copy now. This will ensure delivery of this 1000-plus page comprehensive tome as soon as it’s done being printed after Thanksgiving.
If you need assistance, call our headquarters at (925) 685-5111 or email email@example.com.
Audit Analytics continues to do good work and their recent study based on six years worth of enhanced internal controls under Section 404 of Sarbanes-Oxley is no exception. In short, the study found:
- The percentage of adverse auditor attestations has declined every year for 5 years and is down to 2.4% for Year 6.
- Likewise, for Year 6, the percentage of adverse management-only assessments was the lowest – but this rate was about 10x higher than the rate experienced by companies required to file auditor attestations.
As a community that flies often, you should take 10 seconds to sign this online petition against the new invasive body searches being conducted at our airports (when I signed it last night, I was #300 – now it’s over 28k). “Signing” just requires you to input your name and email address – no other contact information is required. Here is a WaPo article about the new searches – they are very personal and shocking.
New Standards for Comfort Letters? AICPA Makes a Proposal
I’m catching up on some draft blogs that need to belatedly come to “life.” Back in July, the Auditing Standards Board of the AICPA – in this Exposure Draft – proposed auditing standard to replace SAS 72 on comfort letters. Thanks to Bob Dow of Arnall Golden Gregory for reminding me of this development.
IFRS Status: FASB and IASB Seek Input
Recently, the FASB and IASB issued a 21-page discussion paper requesting input about the effort it will take them to adopt the convergence projects that are underway, including transition methods, whether adoption of new standards should occur at the same time or over a number of years and whether different effective dates would be appropriate for different entities. Comments are due January 31st. We have posted memos regarding this development in our “IFRS” Practice Area.
Last week, FINRA issued updated guidance on the same day clearance procedures for shelf offerings – as well as expedited review guidance for shelf offerings filed for regular review. The Same Day Clearance Eligibility Guide – and this set of FAQs – clarifies that same day clearance is only available for registered primary shelf offerings made pursuant to the SEC’s Rule 415 and, therefore, is not available if any selling shareholder securities are included, the offering includes an equity line of credit, an offering made pursuant to the multi-jurisdictional disclosure system is not a shelf offering, or the final prospectus supplement for the offering has already been filed with the SEC. Greater clarity on these exclusions is set forth in the Same Day Clearance FAQs #3, which also indicates that the Staff may identify other categories of offerings not eligible for SDC.
FINRA states that it will conduct an expedited review of such a shelf offering only if all relevant documents are provided, all representations are made in the COBRADesk screens, a statement is provided that the filing member has completed its due diligence to confirm its representations, and the filer provides the anticipated effective date and a request for expedited review. FINRA clarifies that shelf offerings will not qualify for expedited review if any of the underwriters are to receive securities as compensation, an unreasonable term or arrangement is included or the offering is filed late. The expedited review guidance confirms FINRA’s recommendation that a filer seeking expedited review that can’t rely on the SDC process should contact FINRA’s Corporate Financing Department to discuss the offering with the applicable Staffer.
Having visited the Sistine Chapel earlier this year – and being blown away by it – I thought I would share this virtual 3-D tour, which apparently was created by some folks at Villanova at the request of the Vatican. Viva technology!
Congress: The Mid-Term Election’s Impact on the Corporate Community
After the mid-term elections – and before the infighting for powerful committee chair positions, etc. has played out – a number of folks have conducted their analysis of what the mid-term elections mean for the corporate community. Here are a few:
“One Global Policy” Approach to D&O Insurance Policies
In this podcast, Heidi Lawson of Chadbourne & Parke explains the need for directors & officers to be covered globally by D&O insurance policies, including:
- Does a “one global policy” approach work today?
- How can a company determine whether that approach works for them?
- If more local policies are recommended, what brokers can be used to find good policies?