E-Minders June 2015

In This Issue:

E-Minders is our monthly e-mail newsletter containing the latest developments and practical guidance for corporate & securities law practitioners.

We view TheCorporateCounsel.net as the gathering place for the community and encourage those who may not yet be members to take advantage of a "Half-Price for Rest of '15" No-Risk Trial to see what you are missing. Here are 10 Good Reasons to try us now.

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Act Now! Our Pair of Popular Executive Pay Conferences: We expect nearly 2000 attendees as usual for our pair of popular conferences - "Tackling Your 2016 Compensation Disclosures" & "12th Annual Executive Compensation Conference: Say-on-Pay Workshop" - to be held October 27-28th in San Diego and via Live Nationwide Video Webcast on TheCorporateCounsel.net. Act now for the phased-in pricing - which expires June 5th - to get as much as 20% off! Here are the agendas.

2015 Edition of Romanek's "In-House Essentials Treatise": Broc Romanek has wrapped up the 2015 Edition of the definitive guidance on securities law for the in-house lawyer and it's been sent to the printers — Romanek's "In-House Essentials Treatise." With over 1000 pages—spanning 18 chapters—you will need this practical guidance for the challenges ahead.

Upcoming Webcasts on TheCorporateCounsel.net: Join us on June 2nd for the webcast - "Escheatment Soup to Nuts: Handling Unclaimed Property Audits & More" - to hear Reed Smith's Diane Green-Kelly, Keane's Valerie Jundt and Exelon's Scott Peters cover everything you need to know about escheatment, from the basics to handling the growing number of unclaimed property audits.

And join us on July 14th for the webcast - "Nasdaq Speaks '15: Latest Developments and Interpretations" - to hear senior members of the Nasdaq Staff - Arnold Golub, David Strandberg, Stanley Higgins and Cyndi Rodriguez - discuss all the latest.

And join us on July 16th for the webcast - "Cybersecurity: Governance Steps You Need to Take Now" - to hear Weil Gotshal's Paul Ferrillo and Randi Singer, as well as PhishMe's Allan Carey, get into the nitty gritty of how cybersecurity is now a huge governance concern and what you should be doing (including how to best train employees).

And join us on September 17th for the webcast - "Whistleblowers: What Companies Are Doing Now" - to hear the Chief of the SEC's Office of the Whistleblower, Sean McKessy - as well as DLA Piper's Deborah Meshulam and K&L Gates' Mike Missal, as they explore the latest developments at the SEC - and the issues that companies should consider when adopting changes to their whistleblower policies and procedures.

There is no cost for these webcasts if you are a member of TheCorporateCounsel.net. If you are not a member, take advantage of our no-risk trial to access the programs. You can sign up for this no-risk trial online, send us an email at info@thecorporatecounsel.net - or call us at 925.685.5111.

Upcoming Webcast on CompensationStandards.com: Join us on June 16th for the webcast - "Proxy Season Post-Mortem: The Latest Compensation Disclosures" - 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.

No registration is necessary - and there is no cost - for these webcasts for CompensationStandards.com members. If you are not a member, take advantage of our no-risk trial to access the programs. You can sign up online, send us an email at info@compensationstandards.com - or call us at 925.685.5111.

Upcoming Webcasts on DealLawyers.com: Join us on June 11th for the webcast - "Selling the Public Company: Methods, Structures, Process, Negotiating, Terms & Director Duties" - to hear Greenberg Traurig's Cliff Neimeth, Richards Layton's Ray DiCamillo and Richards Layton's Mark Gentile analyze the legal and commercial parameters of what you can - and can't do (or should and shouldn't do) - when shopping and agreeing to sell control of a public company are evolving due to judicial decisions, legislative developments and market conditions.

And join us on September 16th for the webcast - "Evolution of M&A Executive Pay Arrangements" - to hear Morgan Lewis' Jeanie Cogill, Sullivan & Cromwell's Matt Friestedt, Cravath's Eric Hilfers and Wachtell Lipton's Andrea Wahlquist cover the latest in executive compensation arrangements in deals.

And join us on November 5th for the webcast - "An M&A Conversation with Myron Steele & Jack Jacobs" - to hear about the latest state law developments from former Delaware Supreme Court Chief Justice Myron Steele and former Delaware Supreme Court Justice Jack Jacobs.

No registration is necessary - and there is no cost - for these webcasts for DealLawyers.com members. If you are not a member, take advantage of our no-risk trial to access the programs. You can sign up online, send us an email at info@deallawyers.com - or call us at 925.685.5111.

The SEC "Waivers" Debate: Heating Up Over WKSI Status - And a New Battlefield!

Even with the SEC's new policy on Reg A & D waivers fresh on the books, the topic of whether to grant waivers remains topical. Recently, SEC Commissioner Stein dissented from the SEC's order granting a waiver to Deutsche Bank over its WKSI status (you may recall that Corp Fin issued a revised statement about how it would process WKSI waivers last year).

The WKSI waiver debate is new; there's been controversy before. And interesting, although Deutsche Bank got its WKSI waiver request, apparently the same did not happen for Credit Suisse. According to this Reuters article, Credit Suisse withdrew a WKSI waiver request after SEC Staff informed it that the request would likely be denied.

But what apparently is new is a growing battle between the SEC and the CFTC, as noted in this excerpt from Stein's dissent:

However, based on a loophole contained in Rule 506(d)(2)(iii), the CFTC has intervened and prevented the bad actor disqualification question from even coming before the Securities and Exchange Commission. The CFTC saw fit to opine on the SEC's Rule 506 jurisprudence about whether Deutsche Bank AG should receive a waiver from automatic disqualification under SEC rules. It is unclear to me what, if any, analysis went into this decision and what prompted the CFTC to insert language into its final order stating that a bad actor disqualification "should not arise as a consequence of this Order." The implications of the CFTC's actions here — and in other actions — are deeply troubling. The Commission should closely review this provision and how it is being used.

The Rule 506(d)(2)(iii) provision has actually been used once before by the CFTC to "waive away" the 506 disqualification - last year in this CFTC order against JPMorgan for the London Whale incident. So two times now makes a trend perhaps.

But what may be the interesting trend is whether companies - faced with the SEC's deadlock over 506 waivers - will look to get around the deadlock by relying on this provision in its negotiations with other state or federal regulators. The provision also allows courts to decree that there should be no 506 disqualification as well. Below is the language from the adopting release for Rule 506(d) (which was adopted by a 5-0 vote) that explains the purpose of this provision:

The amendments we are adopting include a provision under which disqualification will not arise if a state or federal regulator issuing an order advises in writing that Rule 506 disqualification is not necessary under the circumstances. We believe this provision will create cost savings for affected covered persons such as issuers, individuals and compensated solicitors by eliminating the need to seek waivers from the Commission or pursue other means of raising capital. We expect that some issuers and other covered persons will adjust their settlement negotiations to bargain for an express determination that disqualification from Rule 506 is unnecessary. As the provision applies only where state or federal regulators have determined that Rule 506 disqualification is not necessary, we do not believe it is likely to impair the intended investor protection benefits of the bad actor disqualification scheme.

Political Contributions Disclosure: SEC Sued Over Petition Inaction

In mid-May, the newly-formed "Campaign for Accountability" (CfA) sued the SEC in the US District Court for DC for failing to act on the rulemaking petition submitted last year by the Citizens for Responsibility and Ethics in Washington (CREW). Interestingly, this lawsuit is not filed by the folks behind the much more popular rulemaking petition on this topic, the one submitted by Harvard Professor Lucian Bebchuk in 2011 that attracted more than 1 million comments in support (although CREW submitted this letter last month supporting that older petition).

The complaint is worth reading for a number of reasons:

- It opens with the parade of horrors wrought by the Citizens United decision by SCOTUS
- Talks about how institutional investors want to see this type of disclosure
- Goes into the history of shareholder proposals on this topic
- Reveals a number of discrepancies between companies who have voluntarily adopted disclosure policies in this area and what companies are actually doing (Counts #22-26)
- Mentions that political contributions disclosure showed up on the SEC's Reg Flex Agenda in '13. (Counts #28-29) Apparently, they believe that list of potential rulemakings is more than aspirational, which I have contended before...

Regulation A/A+: Massachusetts Sues SEC (In Two Paragraphs)

In late May, in this "Petition for Review," the Massachusetts Secretary has sued the SEC in the US Appeals Court for the District of Columbia asking the court to vacate the portion of the SEC's new Regulation A+ rules that preempt state law - and issue a permanent injunction prohibiting it from going into effect on June 19th. The petition is just two paragraphs! Here's the scheduling order. According to this article, Montana has filed a similar lawsuit. During the rulemaking process, NASAA - the association of state securities regulators - repeatedly argued that the preemption aspects of Regulation A+ were inconsistent with legislative intent...

We just calendared a new webcast to track developing market practices in the wake of the new Regulation A+ rules...

Political Contributions Disclosure: Required by Executive Order?

With the million-plus commentators supporting the rulemaking petition for political contribution spending seeming to have no effect on the prospects of the SEC wading in on this issue comes this news from this blog:

At least 70 of the top 100 companies in the U.S. would be covered by a proposed executive order to require federal contractors to disclose their political spending, according to an analysis released by Public Citizen. The liberal watchdog group and other supporters of regulating money in politics have called on President Barack Obama to issue an order requiring government contractors to disclose their spending to influence elections, including money funneled through nonprofit organizations such as the U.S. Chamber of Commerce and others, which don't disclose their donors.

If Obama were to issue such an order, it would reach at least 70 percent of the Fortune 100 companies, according to a Public Citizen analysis released April 27. The group reviewed government contracts held by the 100 largest companies in the U.S.—as ranked by Fortune Magazine for 2014—and found that 70 of the companies had federal contracts totaling $100,000 or more from April 2014 to April 2015. Obama administration officials have acknowledged considering such an order, but have given no indication that it will be issued.

White House spokesman Josh Earnest said earlier this month that the Obama administration has no specific plans to push for stronger campaign finance laws as the 2016 presidential election campaign gears up, with predictions of record spending from super political action committees (PACs) and other outside organizations not formally linked to candidates or political parties.

The companies identified in the Public Citizen study as holding government contracts represent a wide variety of industries, including car manufacturing, defense, technology, energy and banking. The individual companies with contracts include Apple Inc., AT&T Inc., Bank of America Corp., Boeing Co., Exxon Mobil Corp., General Motors Co. and more. Nine of the top 10 companies on the Fortune 100 list were identified as government contractors, with the retail giant Wal-Mart Stores Inc. as the only exception. "Because the federal government buys everything from toothbrushes to nuclear missiles, it is no surprise that most large companies are significant government contractors," Weissman said in the Public Citizen statement.

The Public Citizen study looked at contracts signed within the last year and aggregated totals to establish whether a company had received more than $100,000 in contracts. Public Citizen added that the 30 companies in the top 100 that didn't have $100,000 in government contracts came disproportionately from the insurance industry.

Investors Seek More "Usable" Director Attribute Disclosure (+ Diversity Disclosures)

Speaking of rulemaking petitions, here's a new one recently submitted by a group of 9 public pension funds that seeks the SEC to include a board matrix or chart in proxy statements, as well as including a nominee's gender, race and ethnicity - thus taking the board attribute disclosures elicited by Item 407(c)(2)(v) a step further...

SEC Enforcement Staff Issues "ALJ v. Civil Case" Guidance

Recently, the SEC's Division of Enforcement Staff issued this 4-page guidance. This issue continues to generate controversy, with the SEC being criticized for its increased use of administrative proceedings. For example, the WSJ recently penned this article claiming the SEC won against 90% of defendants before its own judges in contested cases from October 2010 through March of this year - compared to a 69% success rate in federal court. See also this DealBook piece and Corporate Crime Reporter article.

As noted in these memos posted in our "SEC Enforcement" Practice Area, the new guidance identifies a non-exhaustive list of four factors that the SEC may consider in determining the proper forum for an enforcement action - with the guidance noting that the Enforcement will continue to prefer administrative hearings as the venue for resolving novel or complex issues.

Meanwhile, Enforcement Director Andrew Ceresney recently delivered this speech entitled "The SEC's Cooperation Program: Reflections on Five Years of Experience"...

IFRS: Dead in the US?

Here's an excerpt from this CFO.com article: "Sounding a death knell for the more-than-decade long effort to fully "converge" International Financial Reporting Standards with U.S. Generally Accepted Accounting Principles, James Schnurr, the chief accountant of the Securities and Exchange Commission, said that he probably won't recommend that the SEC should mandate IFRS or that U.S. companies should have the choice of preparing their financials under those standards.

Speaking at the 14th annual Baruch College Financial Reporting Conference in New York City, Schnurr said that "there is virtually no support to have the SEC mandate IFRS for all registrants." Further, he said, "there is little support for the SEC to provide an option allowing [U.S. public] companies to prepare their financial statements under IFRS." Since 2007, the commission has permitted foreign private issuers in the United States to report their financials under IFRS without reconciling them to U.S. GAAP. (Under the pre-2007 regime of reconciliation, foreign issuers had to identify and quantify the material differences they reported under IFRS in terms of U.S. GAAP.)

However, he added, "there does seem to be continued support for the objective of a single set of high-quality globally accepted accounting standards." The chief accountant stressed that the U.S. Financial Accounting Standards Board and the International Accounting Standards Board continue to communicate and keep each other's views very much in mind when each considers its own actions.

Schnurr bemoaned the current emphasis on the deterioration of relations between FASB and IASB. "The conversation seems to quickly transition to convergence, or the lack thereof, often with an adversarial, U.S. GAAP vs. IFRS, tone. Conversations on this topic typically highlight the differences and shortfalls in the efforts towards convergence in an attempt to suggest that the two sets of standards will never be able to achieve uniformity," he said."

PCAOB Issues "Audit Committee Dialogue"

In mid-May, the PCAOB issued this "Dialogue" report - addressed to audit committees - that highlights key areas of recurring concern in PCAOB inspections of large auditors as well as certain emerging risks to the audit. As noted in this Cooley blog, the report also provides targeted questions that committee members may ask their auditors on each topic.

Fake SEC Filings: Avon's "Unreal" Tender Offer

If you have read Broc's blog for a while, then you know he digs fake SEC filings. As noted in this blog last year on the topic, they tend to be one of my most popular types of blogs. So last week was Christmas for him as this fake Schedule TO about a $8 billion takeover bid caused a stir and caused Avon's stock to tank (see this DealBook piece).

This latest incident is a cautionary tale for investors as it's not the first fake takeover announcement. Broc's favorite dates back to 2001, as noted in this piece, when a fake "blank check" company calling itself "Toks Inc." filed a Form SB-2 with the SEC announcing plans to take over General Motors, General Electric, AT&T, Hughes Electronics, AT&T Wireless, AOL Time Warner and Marriot International - for roughly $2 trillion in "Toks" stock. The promoter - Ade O. Ogunjobi - didn't give up even when the SEC issued a "Stop Order" to prevent the registration statement from going effective and suing him for selling unregistered securities, later launching a website to promote his wild ambitions and plans to then hold press conferences to announce his plans for these major US companies he was to take over!

Hard to believe, but those SEC filings by Toks are still on EDGAR. Here's my blog on "Fake Filings: How Do They Sneak a Form ID Past the SEC?" (scroll down)...

In the News: Politician Criticism of Buybacks

Last year, Broc blogged about a flurry of articles in the media criticizing the zany pace of buybacks (and last month, he blogged about BlackRock's letters to CEOs about them). As noted in this article, the topic is now becoming a political hot potato as Senator Tammy Baldwin has sent this letter to the SEC "about the adequacy of the SEC's rules governing repurchases on the open market." In addition, SEC Commissioner Stein delivered this speech, noting that the SEC should be evaluating whether action in this area is warranted...

Activism & Buybacks: Seeking Board Seats to Apply Pressure

This DealBook article describes how a former Goldman banker who was placed in General Motors by the Obama Administration as part of the bailout has now put himself up for a seat on the GM board, as part of a campaign from four hedge funds to persuade the company to buy back at least $8 billion worth of shares by next year. This Form 8-K from GM files a "Notice of Director Nomination." Also see this blog - entitled "At GM, The Year's Most Interesting Activist Project" - from "The Activist Investor"...

Earnings Releases: The True Story Behind Twitter's Leak

In this blog, Q4's Darrell Heaps does a great job explaining what really happened last week with Twitter's leaked earnings release (also see this article where Selerity explains how they figured out Twitter's leak). Here's an excerpt:

Following Twitter's earnings leak this week there has been a huge amount of speculation about what happened. Numerous media outlets and blogs speculated (and others) that it was a URL sniffing bot that guessed the filename of the earnings release.

It's not surprising that they went this route, because this has happened before (4 in 2011). Yes, there have been URL sniffing breaches before. Yes, there are bots out on the web guessing URLs and trying to download documents. However, any reputable IR website vendor protects against this, including Nasdaq.

The truth is that this was not URL sniffing, this was human error. According to Nasdaq's statement: "Yesterday at 3:07 pm EDT, Shareholder.com inadvertently posted Twitter's (TWTR) earnings release prematurely on its investor relations website. The posting was caused by an operational issue that exposed the release on Twitter's IR website for approximately 45 seconds. During those seconds the site was scraped by a third party that publicly disseminated the earnings information...."

It was simply that someone posted the PDF 1 hour early by mistake. (at 3:07pm and 57 seconds exactly). The person quickly realized the mistake and pulled the document down within 45 seconds. My guess is they thought they moved quickly enough....but no.

Darrell's key take-aways are:

1. Bots are everywhere and they will find your mistake and publish it on Twitter.

2. Your Investors are using Twitter and will react instantly. 80% investors now using social.

3. Documents on IR websites have to be secure, this is table stakes for IR website vendors. Although this isn't what happened to Twitter.

4. Disclosure controls and procedures both at your IR website vendor and within your own company are paramount in making sure sensitive information is handled correctly. This is what happened to Twitter.

5. There is no silver bullet. Web technology such as bots, sniffers, Twitter, etc. are all evolving quickly. You need to understand these changes and evolve how your firm and your partners handle sensitive information. This is a moving target.

Next Wave of Comp Litigation? Director Grants Subject to Entire Fairness Review

Here's this blog by Steve Quinlivan: "In Calma v. Templeton et al, the Delaware Court of Chancery held that grants of restricted stock units, or RSUs, to directors of Citrix Systems, Inc. were subject to an entire fairness standard of review. The court found that the grants were a conflicted decision because all three members of the compensation committee that approved the grants also received the RSU awards. Citing Delaware Supreme Court precedent, the court noted director self-compensation decisions are conflicted transactions that "lie outside the business judgment rule's presumptive protection, so that, where properly challenged, the receipt of self-determined benefits is subject to an affirmative showing that the compensation arrangements are fair to the corporation."

The court rejected the defendants position that prior stockholder approval of the plan ratified the grants at issue. The court found that Citrix did not seek or obtain stockholder approval of any action bearing specifically on the magnitude of compensation paid to non-employee directors.

The case was before the court on a motion to dismiss. Accordingly, the court found the defendants' motion must be denied unless, accepting as true all well-pled allegations of the complaint and drawing all reasonable inferences from those allegations in plaintiff's favor, there is no "reasonably conceivable set of circumstances susceptible of proof" in which plaintiff could establish that defendants breached their fiduciary duties.

The defendants contended the grants were entirely fair because the grants were in line with 14 companies identified in Citrix' proxy as its peer group. The plaintiff claimed that the appropriate peer group should be limited to only five of those companies based on comparable market capitalization, revenue and net income metrics.

In the court's view the plaintiff raised meaningful questions as to whether certain companies with considerably higher capitalization, such as Amazon.com, Google and Microsoft, should be included in the peer group used to determine fair value of compensation for Citrix's non-employee directors. The court therefore refused to grant the motion to dismiss.

As a result of this decision, many advisors will now likely recommend that concrete, realistic limitations on grants to directors be built into a plan so that directors can rely on a stockholder approval defense. If the decision becomes a prelude to the next wave of compensation litigation, many companies may submit their grant practice for stockholder approval even if they do not need a new plan approved."

Cybersecurity: DOJ Issues Best Practices Guidance

In early May, the DOJ released guidance entitled "Best Practices for Victim Response and Reporting of Cyber Incidents." As noted in these memos, the guidance outlines steps companies should take before, during, and after an incident, and includes a summary checklist. The guidance also states the DOJ's positions on the legal permissibility of a number of monitoring techniques and the impermissibility of many forms of so-called "hacking back."

Our New "Regulation D Handbook"

Spanking brand new. By popular demand, this comprehensive "Regulation D Handbook" covers how to engage an independent auditor, from the factors to be considered and engagement letter issues. This one is a real gem - 101 pages of practical guidance - and its posted in our "Regulation D" Practice Area.

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:

- Form 10-K Preparation Tips
- How to Proactively Tackle the Director Tenure Issue
- Code of Ethics/Conduct Primer
- Audit Committee Role in Improving Disclosure
- CEO Succession Planning Guidance for CEOs & Boards

- Study: Data Breach Preparedness
- Survey: Current (& Future) State of Compliance
- Spencer Stuart Addresses Board "Refreshment"
- Avoiding & Managing Boardroom Disputes
- Using COSO to Assess & Manage Cyber Risks

People: Who's Doing What and Where

At the SEC, it was announced that Lona Nallengara - who was Corp Fin's Deputy Director before he headed upstairs to be Chair White's Chief of Staff - will leave the agency at the end of next month. No next destination listed.

Dan Murdock has left the SEC as Deputy Chief Accountant - and Wesley Bricker has been promoted to that job.

SEC Commissioners Gallagher & Aguilar: Short-Timers?

Here's an excerpt from this WSJ article (also see this piece): "Daniel Gallagher, a Republican member of the Securities and Exchange Commission, is preparing to step down after nearly four years at the agency, according to people familiar with the matter. Mr. Gallagher has notified the White House of his plans to leave the five-member agency as soon as a successor is confirmed by the Senate, people familiar with the matter said. His announcement was a surprise, as his SEC tenure won't officially come to a close until the end of 2017.

The departure will likely coincide with the resignation later this year of Luis Aguilar, a Democrat, who is planning to step down soon after nearly seven years at the agency, people familiar with his thinking said.

The White House has already begun vetting candidates to succeed Mr. Aguilar, who would like to remain at the agency long enough to help complete long-awaited rules designed to boost executive-compensation disclosures, a person familiar with his thinking said."

Conference Calendar

What's New on Our Websites

Among other new additions, during the last month we have:

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