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Monthly Archives: June 2011

June 30, 2011

Option Grant Practices: IRS Proposes Section 162(m) Changes

Last week, the IRS proposed new regulations under Section 162(m), which would significantly change the rule that applies to pre-existing stock option plans of private companies that then go public. Among other things, the proposal also reinforces that individual award limits must be stated in an option plan. The NASPP will be covering this proposal in detail (here’s the NASPP’s Blog if you haven’t checked it out yet).

New movie on the horizon? Will Ferrell will star as “a narcissistic hedge fund manager who thinks he has seen God.”

Yes, It’s Time to Update Your Insider Trading Policy

We have posted the transcript of the webcast: “Yes, It’s Time to Update Your Insider Trading Policy.”

Mailed: May-June Issue of The Corporate Executive

The May-June Issue of The Corporate Executive includes pieces on:

- The Interplay of Section 162(m) and ASC 718
- RSUs and Unaccepted Grants
- Deferred RSUs and ERISA
- Tax Deposits for RS/RSUs

Act Now: Get this issue rushed to you by trying a “Half-Price for Rest of ’11″ No-Risk Trial today.

- Broc Romanek

June 29, 2011

More on “SEC Brings “Blue Ribbon” Enforcement Proceeding Against “Crowdsourcing” Offering”

Last month, I blogged about an SEC Enforcement action against two individuals who attempted to raise $300 million via a website, a Facebook page and a Twitter account, to finance a company which would purchase the Pabst Brewing Company. The SEC’s order noted that the offering was attempted to be “crowdsourced.”

A few members weighed in with similar stories from the old days. For example, Stephen Quinlivan notes that back in the late ’90s, James Page Brewing Co. placed a small ad on the side of its six packs to sell securities in a Regulation A/SCOR deal. And here’s an old NY Times article about the Boston Beer offering mentioned in last month’s blog, courtesy of John Newell of Goodwin Procter.

I do remember other examples of companies selling directly to their customers back in the ’90s (egs. Spring Street Brewing Company; Annie’s Homegrown); some of which are referenced in the “Public Companies” section of this ’97 study on technology and the markets that I helped draft back when I was at the SEC.

It’s Here: Crowdsourcing Offerings Through Mobile Phones & Tablets

This recent piece from “The Atlantic” discusses a relatively new start-up – Loyal3 – which allows companies to create “Customer Stock Ownership Plans” similar to the ones described above, but with the twist that the plan is run through on an app for your smart phone, tablet, etc. As noted in this WSJ article, Nasdaq has partnered with Loyal3 to offer CSOPs to listed companies. [This piece entitled "Nasdaq Social Partner Was Called on the Carpet" from "Investor Uprising" notes the Loyal3's CEO's troubling past.]

The piece in “The Atlantic” notes that these CSOPs are “dolled-up Direct Stock Purchase Plans.” DSPPs have been wavering in popularity – both among issuers and investors – over the past decade. The piece also notes that some companies may use CSOPs to give away stock to their customers for free, claiming Frontier Communications is planning to do. I haven’t found any other information to indicate this indeed will happen (searching Google generally and SEC filings made by the company). Anyways, Travelzoo went this “free stock” route back in ’98 before it went public six years later (here’s a law review piece on “free Internet stock offerings” from back in the day).

SEC to TSRA (Trade Sanctions Reform and Export Enhancements Act of 2000): Back Off!

From a member: You should be aware of a development we’ve seen over the past few years – namely, Corp Fin searching company websites for any mention of countries on the state sponsors of terrorism list and then sending letters to those companies suggesting that they are violating both the export laws and SEC disclosure obligations. It seems that the Staff may be overlooking the fact that US export laws do not prohibit all business with any country on that list – as those laws permit certain business with certain such countries.

This blog provides an example. It explains that UPS received a letter from the SEC demanding an explanation about how UPS could do business in Iran, Sudan and Cuba when those countries are on the state sponsors of terrorism list. The SEC’s diligence on this issue appears to be searching the UPS website for references to countries on the state sponsors of terrorism list. Although it’s hard to see how the Staff would otherwise diligence this issue, this remains a concern for some companies.

- Broc Romanek

June 28, 2011

Say-on-Pay: 37th – 39th Failed Votes

We’ve now had three more companies file Form 8-Ks reporting failed say-on-pay votes: Blackbaud (45%); Freeport McMoRan Copper & Gold (46%); and Monolithic Power Systems (36%). I keep maintaining our list of Form 8-Ks for failed SOPs in CompensationStandards.com’s “Say-on-Pay” Practice Area.

Internal Pay Disparity: House Committee Passes Bill for Repeal

In this Cooley news brief, Cydney Posner notes how the House Financial Services Committee passed the “Burdensome Data Collection Relief Act,” the substance of which is a single paragraph that would repeal Section 953(b) of Dodd-Frank and make any regulations issued pursuant to it of no force or effect. Section 953(b) is the provision in Dodd-Frank that – once the SEC adopts related rules – will require companies to disclose in proxy statements and other filings the median of the annual total compensation of all employees of the issuer, excluding the CEO, the annual total compensation of the CEO and the ratio of the two.

SEC Continues Push for Enhanced Disclosure of Litigation Contingencies

Here’s news culled from this Wachtell Lipton memo, repeated below:

We have previously noted the SEC’s efforts to urge companies to enhance their disclosure of litigation contingencies and, in particular, to provide estimates of “reasonably possible” loss or range of losses in actions for which accruals have not been established and for exposure in excess of established accruals in other actions, or to explain why such estimates cannot be provided.

The SEC appeared to focus its earlier comment letter efforts on financial services companies, many of which have relatively extensive litigation disclosure. Now, however, the SEC appears to have extended its focus to at least some companies outside of the financial services sector, including companies whose litigation exposures are not as extensive as those of many financial services companies.

Needless to say, each company’s disclosure of loss contingencies must be prepared in light of its own litigation exposures, and it is difficult to generalize concerning the nature of disclosures that should be made. The Chief Accountant of the SEC’s Division of Corporation Finance has publicly stated that disclosure of a “reasonably possible” range of losses may be done in the aggregate.

Consistent with the Chief Accountant’s position, some companies have disclosed an aggregate range of reasonably possible losses for cases for which they were able to provide such an estimate, while alerting investors that they were not able to provide a meaningful estimate of reasonably possible loss or range of loss for all of the litigation contingencies described in their quarterly (or annual) filing. These companies have not typically disclosed which of their litigation proceedings are included within the aggregate range. Providing aggregate disclosure without identifying the included versus the excluded cases helps minimize the prejudice to a company that would follow from adversaries being given potential insights regarding its views of the merits (or settlement value) of individual litigation matters. Where appropriate, companies may also explain in their disclosures that the estimated range of reasonably possible losses they have disclosed is based on currently available information and involves elements of judgment and significant uncertainties, and that actual losses may turn out to exceed even the high end of the range.

Relatedly, the FASB – last July – issued an exposure draft regarding proposed new accounting standards for litigation contingency disclosure. However, after the FASB received numerous comments critical of the proposed standards, it announced that it would postpone the adoption of new standards pending “redeliberations” on the topic. Most recently, the FASB stated that its project on “Disclosure of Certain Loss Contingencies,” has been reassessed as a “lower priority” and that further action is not expected before this December.

This Davis Polk blog on the topic lists “several large financial institutions (American Express Company, Bank of America Corporation, Citigroup Inc., The Goldman Sachs Group Inc., JPMorgan Chase & Co., Morgan Stanley and Wells Fargo & Company) gave an estimate of possible loss or range of loss above their existing reserves for the first time in their Form 10-Ks for the 2010 fiscal year and updated those estimates in their 2011 first quarter Form 10-Qs.”

- Broc Romanek

June 27, 2011

Unlucky #7: A Quasi-Say-on-Pay Lawsuit

Last week, a seventh company was sued regarding its pay practices – Bank of New York Mellon in a state court in New York (here’s the complaint). One of the big differences in this lawsuit is unlike the six lawsuits filed against companies that failed to garner a majority of votes in support of their say-on-pay, Bank of New York Mellon received overwhelming support for its say-on-pay (although there was a huge number of broker non-votes). Here’s the Form 8-K reporting the company’s voting results.

Mark Borges notes “this lawsuit appears to be fundamentally different from the others that have been filed following a failed say-on-pay vote. This suit alleges that the company’s board (and its Compensation Committee) acted in contravention of the terms of their long-term incentive plans. What’s interesting to me is that the details of the complaint could only have been drawn from the Compensation Discussion and Analysis, so it’s a classic example of the disclosure providing a roadmap for second-guessing the decisions of the directors.” We continue to post pleadings from these cases in CompensationStandards.com’s “Say-on-Pay” Practice Area.

By the way, two of the oldest of the say-on-pay cases have been settled. As noted in this Davis Polk blog: “KeyCorp agreed, according to Reuters, to pay $1.75 million in attorneys’ fees and expenses to settle related suits and Occidental Petroleum, faced with three suits, settled one for an undisclosed amount and had two dismissed.”

Purchasing from a Public Offering: Don’t Forget the SEC’s Credit Limitations

Here’s a tidbit from Suzanne Rothwell: With broker-dealers and their bank affiliates often extending loans to issuers, I am hearing about situations where an officer of an IPO issuer or other intended investor has asked one of the underwriters of the company’s IPO to extend a loan in order to purchase securities from the IPO or an almost simultaneous private placement. Section 11(d) of the ’34 Act prohibits an IPO underwriter from making a loan to anyone to purchase IPO securities from the offering and also in the secondary market for 30 days after the IPO.

The provision even prohibits an underwriter from “arranging” for a loan by any other party. The purpose of the regulation is to prevent underwriters from encouraging the purchase of securities without a market by extending credit to its customers. While generally a loan is permitted to investors purchasing from a private placement, the SEC can take the view that a close-in-time private placement is integrated with the IPO for purposes of the credit limitations.

House Financial Services Committee Approves the “Small Company Capital Formation Act”: Regulation A Revival Closer?

Last week, the House Financial Services Committee on Capital Markets and Government Sponsored Enterprises approved the Small Company Capital Formation Act of 2011. Several amendments were introduced and debated by the full House Financial Services Committee. This Morrison & Foerster memo explains more.

- Broc Romanek

June 24, 2011

A Dodd-Frank Act Tally Sheet: Some Down, Many More to Go

At this time last summer, we were watching the legislative process unfold that gave birth to the Dodd-Frank Act (aka FrankNDodd), and we were anxiously wondering what sort of post-apocalyptic world we might be living in once the various provisions of Dodd-Frank came into effect. With Dodd-Frank’s first birthday fast approaching (I already have some Dodd-Frank birthday gigs on my calendar), we find ourselves in more of a state of limbo than “Mad Max.” The SEC Staff has been working incredibly hard to develop rules to implement many provisions of the Act under difficult circumstances, most notably the ridiculous implementation deadlines set forth in the statute, the perennial problem of understaffing and intermittent threats of government shutdown. With all that, some progress has been made, and there will no doubt be much more progress coming soon. As for the corporate governance and compensation provisions of the Dodd-Frank Act affecting public companies, the lay of the land today is as follows:

1. The SEC has completed rulemaking on the Say-on-Pay provisions and whistleblower provisions of Dodd-Frank. Say-on-Pay turned out to be more like “Y2K” than the apocalypse, with significant support for Say-on-Pay resolutions at most companies.

2. The SEC expects to adopt rules with regard to the compensation committee and adviser independence provisions in the second half of 2011. It seems likely that the final rules on these provisions will be adopted this summer, to be followed by the exchanges’ efforts to establish the applicable listing standards.

3. The SEC expects to adopt rules implementing the “specialized corporate disclosure” provisions (conflict minerals, payments by resource extraction issuers and mine safety) in the second half of 2011. It seems that the SEC wants to treat all of these disclosure provisions as a package deal, otherwise they probably would have adopted the mine safety rules by now, given that mining companies already have to comply with the statutory requirements. The conflict minerals disclosure provisions continue to present many challenges in coming up with workable rules for a potentially very large proportion of the universe of public companies, so we should all be thankful that the Staff and the Commission are taking their time to deliberate the outcome.

4. The SEC currently plans to propose rules in the second half of 2011 regarding pay for performance disclosure, the median employee/CEO pay ratio disclosure, compensation recovery listing standards (and related disclosure), and disclosure regarding employee and director hedging. With the press of other business under the Dodd-Frank Act and otherwise, I could see some or all of these provisions getting pushed back even further, perhaps even past the 2012 proxy season.

5. The SEC has not yet come out with any proposal as to the other significant matters which would be excluded from broker discretionary voting, although that one might be expected some time later this year in anticipation of getting something on the books for the 2012 proxy season.

6. A decision by the U.S. Court of Appeals for the DC Circuit in the lawsuit challenging Rule 14a-11 (adopted in August 2010 after authority issues were cleared up by Dodd-Frank) is still expected this summer.

Will Congress Help?

It doesn’t seem that Congress will have much appetite to pare back the most onerous provisions of Dodd-Frank applicable to public companies, however earlier this week there was at least a sliver of hope when the House Financial Services Committee held a hearing to consider bills which included H.R. 1062, the Burdensome Data Collection Relief Act, which would repeal the pay ratio disclosure requirement in Dodd-Frank. At the hearing, the Financial Services Committee ordered that the bill be reported to the full House. It is anybody’s guess as to whether the bill may ultimately get voted on, but at least it made it out of the Financial Services Committee.

Delaware Addresses Advance Notice For Shareholder Proposals

An interesting advance notice development from Steven Haas of Hunton & Williams:

Recently, the Court of Chancery issued an interesting decision in Goggin v. Vermillion, Inc. applicable to shareholder proposals and annual meetings. In denying a motion to enjoin a stockholders meeting, the court enforced an advance notice requirement for shareholder proposals that was set forth in the company’s 2010 proxy statement rather than its bylaws.

By way of background, the company’s 2010 proxy materials mailed last October provided that the advance notice deadline for shareholder proposals at the 2011 annual meeting was January 1, 2011. At the time, however, it wasn’t clear when the company’s 2011 annual meeting would be held. While the company traditionally had held its annual meetings in June of each year, it had filed for bankruptcy in 2009 and decided to hold its 2010 meeting in December–just weeks before the January 1, 2011, advance notice deadline disclosed in the proxy materials.

In February 2011, more than a month after the advance notice deadline had passed, the company announced that its 2011 annual meeting would be held on June 7, 2011. As a result, the January 1 deadline resulted in a 150-day advance notice requirement for the 2011 meeting–far more than the typical 90 or 120-day requirements found in many bylaws of Delaware corporations.

The court observed that Delaware law does not require that shareholders provide advance notice of proposals or of director nominations to be raised at an annual meeting. It also acknowledged that the company didn’t have an advance notice bylaw, although it had since adopted one applicable to its 2012 stockholders meeting. Nevertheless, the court held that “the Company set forth its notice requirement for the 2011 Meeting in the October 20, 2010 proxy and that the plaintiff was unlikely to prevail on the merits by showing that the advance notice requirement was unreasonably long or unduly restrictive of [his] franchise rights.”

The court seems to have been strongly influenced by the fact that 5 of the 6 directors were independent and there were no clear signs of entrenchment motives (e.g., the plaintiff did not signal his dissatisfaction with management until after the advance notice deadline had passed). Thus, the deadline was established on the “proverbial clear day” and conformed to the company’s pre-bankruptcy practices.

Still, many observers may be surprised to see the court enforce an advance notice provision that was not set forth in the company’s governing documents. It also is notable that shareholders had approximately 2½ months notice of the pending deadline (i.e., the time in between the mailing of the October 2010 proxy statement and the January 1, 2011, deadline), and that the deadline turned out to be 150 days before the then-unknown meeting date. In contrast, many advance notice bylaws provide that, if the date of an annual meeting significantly deviates from the prior year’s meeting date, shareholders can provide notice of proposals or director nominations within 10 days after the announcement of the meeting date.

- Dave Lynn

June 23, 2011

Last Day: Early Bird Discount for our “Say-on-Pay Intensive” Pair of Conferences

Tomorrow is the last day for the early bird discount for our annual package of executive pay conferences to be held on November 1st-2nd in San Francisco and by video webcast: “Tackling Your 2012 Compensation Disclosures: 6th Annual Proxy Disclosure Conference” and “The Say-on-Pay Workshop Conference: 8th Annual Executive Compensation Conference.” Save by registering by the end of Friday, June 24th at our early-bird discount rates. Note this early-bird discount will not be extended.

SEC Moves Forward with More Dodd-Frank Rulemaking

Yesterday was another big day in the annals of Dodd-Frankdom, as the SEC adopted rules that require advisers to hedge funds and other private funds to register with the SEC. The rules also establish new exemptions from SEC registration and reporting requirements for some advisers, and change the allocation of regulatory responsibility for investment advisers between the SEC and states. The Dodd-Frank Act directed the SEC to adopt these rules in order to close a perceived regulatory gap, in that certain advisers to large hedge funds and private equity funds had been able to avoid SEC registration over the years. This fact sheet describes the new rules, and the SEC has already published the release for the rules related to the Investment Advisers Act amendments and the release for the exemptions applicable to advisers to venture capital funds, private fund advisers with less than $150 Million in assets under management, and foreign private advisers.

SEC Defines “Family Office”

In a related rulemaking, the SEC adopted a definition of “family offices” for the purposes of excluding them from the application of the Investment Advisers Act. With the package of rules adopted yesterday, the SEC has accomplished the rulemaking relating to the fund-related provisions of Title IV of the Dodd-Frank Act that will become effective on the one year anniversary of the Dodd-Frank Act on July 21, 2011.

- Dave Lynn

June 22, 2011

PCAOB Launches Effort to Revamp Reports on Audited Financial Statements

Yesterday, the PCAOB issued a concept release on possible revisions to PCAOB standards related to reports on audited financial statements. As noted in this statement by PCAOB Chairman James Doty, the effort to look at the PCAOB standards applicable to audit reports comes out of concern as to “whether audits adequately served investors’ needs in the months and years before and during the [financial] crisis.”

The concept release highlights several alternatives to the auditor reporting model that would facilitate the communication of information from the auditor to investors. The concepts include: (1) an Auditor’s Discussion and Analysis to be included as a supplement to the auditor’s report, in order to provide the auditor with the ability to discuss his or her views regarding significant matters, as well as information about the audit (such as audit risks identified in the audit, audit procedures and results), auditor independence and the auditor’s views regarding the company’s financial statements; (2) required and expanded use of “emphasis paragraphs” in all audit reports that would highlight the most significant matters in the financial statements and identify where those matters are disclosed in the financial statements, such as significant management judgments and estimates, areas with significant measurement uncertainty and other areas that the auditor determines are important for a better understanding of the financial statement presentation; (3) auditor assurance on information outside of the financial statements, such as MD&A, non-GAAP information or earnings releases; and (4) clarification of the standard auditor’s report, whereby clarifying language would be added about what an audit represents and the related auditor responsibilities, including language regarding reasonable assurance, the auditor’s responsibility for fraud, the auditor’s responsibility for financial statement disclosures, management’s responsibility for the preparation of the financial statements, the auditor’s responsibility for information outside of the financial statements, and auditor independence. The PCAOB has noted that these potential alternatives are not mutually exclusive, therefore a revised auditor’s report could include any of these alternative concepts or a combination of concepts, as well as elements of these concepts.

The PCAOB is soliciting comments on the concept release until September 30, 2011, and plans to convene a roundtable in the third quarter of 2011 to discuss these issues.

Unfinished PCAOB Business and Your Proxy Statement

With the PCAOB now taking on such a significant topic as the content of auditor’s reports, it is still important to keep in mind that, 8 years into its existence, the PCAOB continues to slog through many of the auditing standards that pre-dated the creation of the Board for the purpose of adopting new PCAOB standards.

Some confusion can arise, however, because the AICPA (who used to the the principal arbiter of all auditing standards for public and private companies) continues to promulgate its own auditing standards, notwithstanding the fact that the PCAOB has taken over as the sole authority on auditing standards for public companies. In this regard, I continue to see incorrect auditing standard references in proxy statements in the context of the audit committee report required by Item 407(d)(3) of Regulation S-K. Among the items required in the audit committee report is that “[t]he audit committee has discussed with the independent auditors the matters required to be discussed by the statement on Auditing Standards No. 61, as amended (AICPA, Professional Standards, Vol. 1, AU section 380), as adopted by the Public Company Accounting Oversight Board in Rule 3200T.”

In complying with this requirement, some issuers have become confused because in December 2006, the AICPA issued Statement on Auditing Standards No. 114, The Auditor’s Communication with Those Charged with Governance (“SAS 114″). SAS 114, by its terms, supersedes SAS 61, but because the standard was adopted after April 16, 2003 and was not subsequently adopted as an Interim Auditing Standard by the PCAOB, SAS 114 is not applicable to the audits of public companies. As a result of the understandable confusion about the applicability of this standard, some issuers have incorrectly replaced the reference to SAS 61 in their proxy statement with a reference to SAS 114.

To compound the problem, in March of last year the PCAOB proposed a new auditing standard, Communications with Audit Committees, which if adopted would supersede the Board’s interim standards on the topic. The comment period for this proposed standard closed in May 2010, and commenters suggested that the PCAOB needed to gather more information regarding the operation of the proposed standard. The PCAOB conducted a roundtable on auditor communications with the audit committee in September 2010. A final standard has not been adopted to date, and as a result the Interim Auditing Standard pursuant to PCAOB Rule 3200T firmly remains SAS 61 (as in effect on April 16, 2003).

More on our “Proxy Season Blog”

Even though the proxy season is winding down, we still are posting new items regularly on our “Proxy Season 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:

- They Held a Revolution and Nobody Came
- Proxy Season: The Latest Voting Results
- More on “Annual Meetings: The Use of Floor Proposals”
- The Best Annual Report of 2011? Acuity’s “Storybook Year”
- Advisory Votes Help Shield Directors From Investor Dissent

- Dave Lynn

June 21, 2011

New Staff Observations on XBRL Released in Advance of Final Phase-in

The last round of phase-in for interactive data is now just around the corner, with upcoming quarterly reports for companies below the large accelerated filer threshold now subject to XBRL reporting requirements. Over the last couple of years, the Staff of the Commission’s Division of Risk, Strategy and Financial Innovation (Risk Fin) has completed reviews of interactive data financial statement submissions and has published general observations about those reviews.

In the latest set of observations published June 15th, the Staff addresses a wide range of XBRL issues including negative values, extending elements when an existing US GAAP taxonomy element is appropriate, “axis” and “member” use, and tagging completeness in the context of using parenthetical amounts. All pretty techie stuff, but nonetheless worth checking out and reviewing XBRL practices accordingly.

No Sign of an Interactive Data Reprieve

There is no sign of any XBRL reprieve for smaller companies, or for the need to perform detailed tagging of financial statement notes for larger companies, so it remains full-steam ahead for interactive data implementation efforts, with heavy reliance placed on third-party service providers. Given the reliance on third parties, this upcoming quarter-end could present some challenges for companies, given that so many issuers are seeking to create interactive data files all at once, and many for the first time.

It is a good idea to build some extra time into the filing schedule to account for any potential delays in turning last minute changes to financial statements and notes to financial statements, even if you are an experienced XBRL filer. Also, first-time XBRL filers should not overlook the requirement to post the interactive data files on the company’s website on the same calendar day that the interactive data files are submitted with the periodic report.

First time XBRL filers can also take some comfort in the availability of a one-time, 30-day grace period to submit the interactive data files (as well as a 30-day grace period for the first detailed tagging of the financial statement notes by already phased-in filers), although avoiding having to be in a position to use the grace period is still the best bet.

The most common XBRL question that I receive is who uses the XBRL files that companies go to such great lengths to create? To this day, I still don’t have a good answer for that one.

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:

- Insider Trading Analysis of Sokol Charges
- When Should an Investment Relations Officer Just Quit?
- FASB and IASB Significantly Revise Lease Accounting Proposals
- SEC Extracts Fines, But Not Confessions
- Fourth Circuit Holds Partial Disclosures Must Relate to Misrepresentations to Satisfy Loss Causation

- Dave Lynn

June 20, 2011

The Need to Change Your ID/Password for this Site

Starting today, due to an upgrade in our database, all individual login and passwords for our various sites have been reset. Your new username will be the email address that was in an email that was sent to on Friday. Your temporary password will be your five-digit, billing zip code. Beginning today, on your first login, you will be asked to reset your password as part of a simple process.

Once you have reset your password, it will automatically carryover to each of the following websites (if you’re a member of them):

- CompensationStandards.com
- TheCorporateCounsel.net
- Naspp.com
- Section16.net
- DealLawyers.com
- InvestorRelationships.com

Our HQ is handling questions on this (not me – I don’t even have access to our database) and their phone lines are open for extended hours this week: 925.685.5111. They have posted FAQs regarding this change.

If you use our popular Romeo & Dye’s Section 16 Filer software, you will need to download a new version of the software starting today and will automatically be prompted to do so.

Why Were the SEC’s New Whistleblower Rules Published Late in the Federal Register?

A member recently asked why the SEC’s new whistleblower rules were seemingly delayed in being published in the Federal Register until June 13th – since the agency issued its adopting release back in May after the Commission blessed them at a May 25th open Commission meeting (note: link to Fed Reg version is not yet posted on the SEC’s site)? To get something published in the Federal Register, the Office of Management & Budget (OMB) must conduct a review and then the adopting release moves to the Federal Register people (Government Printing Office).

Even though there seemed to be a delay for the whistleblower rules, it’s not really anything to complain about because it just pushed out the effective date for the rules. In other words, a delay would never have any bearing on whether an approved set of rules were indeed final – there would not be a reprieve from the Governor…

Gun-Jumping: Did Groupon Break SEC Rules?

This Forbes’ article notes how the timing of a lengthy NY Times piece on Groupon – that included behind-the-scenes access for the reporter – came out just a few days before Groupon filed a Form S-1 with the SEC for an IPO.

I haven’t seen any other commentary on this fact pattern – probably because most realize that the playing field has changed a bit due to the ’33 Act reform that took place in ’05. You may recall the infamous interview with the Google founders in Playboy a few days before that company filed its Form S-1 back in ’04. At first, Google was determined to fight the SEC regarding gun-jumping allegations – but the company ultimately backed down and included the entire Playboy interview in Google’s IPO prospectus.

Here’s an excerpt from the letter sent by SEC Chair Schapiro to Rep. Issa recently regarding more ’33 Act reform – the excerpt addresses this type of situation:

In April 2004, less than a week before Google initially filed its registration statement for its initial public offering, Google’s two founders were interviewed by Playboy magazine. Google informed the staff of the interview in August 2004 and advised the staff that the interview would appear in the September 2004 issue of Playboy, which was scheduled to hit newsstands after the offering period for Google’s innovative “Dutch auction initial public offering closed.

Under the rules in effect at the time of this offering, the publication of an article such as this in connection with an initial public offering could raise concerns about inappropriate market conditioning and the potential need for a cooling-off period. For a variety of reasons, primarily based on (l) the timing of the release of the article after the completion ofthe offering period for the auction; and (2) Google filing the article as an exhibit to its registration statement (thereby including it as part of its offering materials), the staff determined that the publication of the article would not inappropriately condition the market for Google’s initial public offering.

As such, the staff did not impose any cooling-off period or otherwise delay the offering as a result of the article. Beyond this, it is important to note that, had the 2005 communications rules described above been in effect at the time, even if the Playboy article was published before Google’s offering period for the auction had closed, Google’s initial public offering would not have been delayed.

By contrast, another initial public offering in 2004 had a different result under the rules in existence at the time. Salesforce.com, Inc. had planned to go effective on its registration statement in May 2004 when an article appeared in The New York Times featuring an interview with the company’s CEO. The CEO had invited a reporter to follow him for a day during the road show for the offering, and the article, which was published during the road show, included substantial information about the offering. It appeared to the staff that the interview was granted – and the reporter was given access to the road show process – in an effort for Salesforce.com or its CEO to communicate with prospective investors through the article, which was not permitted under the rules at that time.

To address gun-jumping concerns, the staff imposed a cooling-off period. Under the communications rules adopted in 2005, this media coverage would not have required delay of the offering if certain filings, such as filing a copy of the article or its contents as a free-writing prospectus, were made.

Webcast: “The Latest Compensation Disclosures: A Proxy Season Post-Mortem”

Tune in tomorrow for the CompensationStandards.com webcast – “The Latest Compensation Disclosures: A Proxy Season Post-Mortem” – to hear Mark Borges of Compensia, Dave Lynn of CompensationStandards.com and Morrison & Foerster and Ron Mueller of Gibson Dunn analyze what was (and what was not) disclosed this proxy season.

I’ve got a quote in this interesting column in yesterday’s NY Times by Gretchen Morgenson in which she analyzes a fascinating report that compares CEO pay with a number of different metrics. For example: “24 companies where cash compensation last year amounted to 2 percent or more of the company’s net income from continuing operations.”

- Broc Romanek

June 17, 2011

Supreme Court Ends SEC’s Theory of “Implied Representation”

On Monday, the US Supreme Court dealt a final blow to the SEC’s theory that third parties may be held to a standard of primary liability under the SEC antifraud rules (called “implied representation”) for statements in a prospectus (we are posting memos in our “Securities Litigation” Practice Area). In a 5-4 decision in Janus Capital Group v. First Derivative Traders, the Court rejected a shareholder class-action lawsuit that argued that Janus Capital Group and a subsidiary should be held liable under the SEC antifraud rules for allegedly false statements in the prospectuses of subsidiary mutual funds.

The Court stated that the “maker of a statement” that violates SEC Rule 10b-5 “is the person or entity with ultimate responsibility over the statement . . . ” and that “One who prepares or publishes a statement on behalf of another is not its maker.” The Court reached this determination despite the close affiliation of the defendants to the mutual funds and their involvement in the preparation of the prospectuses.

Suzanne Rothwell notes that while private investors may be limited in their ability to recover directly from third parties, broker-dealers that distribute offerings later found to be fraudulent nonetheless remain vulnerable to an enforcement action by FINRA (as indicated in Regulatory Notice 10-22) for failure to comply with FINRA product suitability standards and, if the broker-dealer assisted in the preparation of the offering document, the FINRA advertising regulations. In addition to sanctions such as fines and suspensions, FINRA has authority to require that a broker/dealer or a broker make restitution to investors.

If you’re a fan of “The Office,” this video is hilarious. It reengineers the standard opening of the show as if it was an old-fashioned sitcom…

SEC Continues Work on Section 13(d) & (g) Modernization Project

Last week, the SEC re-adopted changes to Rules 13d-3 and 16a-1 to preserve the application of the existing beneficial ownership rules to security-based swaps after July 16th, the effective date of new Section 13(o) that was created under Section 766 of Dodd-Frank. Thus, security-based swaps will remain subject to these rules following the July 16th effective date. As noted in the re-adopting release, the SEC continues to work on its modernization project for Section 13(d) and (g) – and as noted in this press release, the SEC will be “taking a series of actions in the coming weeks to clarify the requirements that will apply to security-based swap transactions as of July 16 – the effective date of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act – and to provide appropriate temporary relief.” This relief began to happen on Wednesday as noted in this press release.

Last Call: Early Bird Discount for our “Say-on-Pay Intensive” Pair of Conferences

There is only one week left for the early bird discount for our annual package of executive pay conferences to be held on November 1st-2nd in San Francisco and by video webcast: “Tackling Your 2012 Compensation Disclosures: 6th Annual Proxy Disclosure Conference” and “The Say-on-Pay Workshop Conference: 8th Annual Executive Compensation Conference.” Save by registering by Friday, June 24th at our early-bird discount rates. Note this early-bird discount will not be extended.

As you can see from our agendas, this year’s pair of Conferences (for one low price) will be workshop-oriented more than ever before in an effort to provide the practical guidance that you need in the new say-on-pay world that we live in:

1. November 1st’s “Tackling Your 2012 Compensation Disclosures: 6th Annual Proxy Disclosure Conference” includes:

- Say-on-Pay Disclosures: The Proxy Advisors Speak
- Say-on-Pay: The Executive Summary
- Drafting CD&A in a Say-on-Pay World
- The In-House Perspective: Changing Your Processes for ‘Say-on-Pay’
- Getting the Vote In: The Proxy Solicitors Speak
- Handling the New Golden Parachute Requirement
- The Latest SEC Actions: Compensation Advisors, Clawbacks, Pay Disparity & Pay-for-Performance
- Dealing with the Complexities of Perks
- Conducting – and Disclosing – Pay Risk Assessments
- Say-on-Frequency & Other Form 8-K Challenges
- How to Handle the ‘Non-Compensation’ Proxy Disclosure Items

2. November 2nd’s “The Say-on-Pay Workshop: 8th Annual Executive Compensation Conference” includes:

- SEC Chair Mary Schapiro’s Keynote (via pre-taped video)
- Say-on-Pay Shareholder Engagement: The Investors Speak
- Say-on-Pay: The Proxy Advisors Speak
- How to Work with ISS & Glass Lewis: Navigating the Say-on-Pay Minefield
- Putting Your Best Foot Forward: How to Ensure Your Pay Practices Pass
- Say-on-Pay: Director (and HR Head) Perspectives
- Failed Say-on-Pay? Lessons Learned from the Front
- Say-on-Pay: Best Ideas for Putting It All Together

- Broc Romanek