E-Minders May 2013

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 No Risk Trial to see what you are missing. Here are 10 Good Reasons to try us now.

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Our Pair of Popular Executive Pay Conferences: A 15% Early Bird Discount: We have posted the registration information for our popular conferences - "Tackling Your 2014 Compensation Disclosures: The Proxy Disclosure Conference" & "Say-on-Pay Workshop: 10th Annual Executive Compensation Conference" - to be held September 23-24th in Washington DC and via Live Nationwide Video Webcast.

The full agendas for the Conferences are posted on TheCorporateCounsel.net - but the panels include:

– Q&A with ISS
– Q&A with Glass Lewis
– Say-on-Pay Shareholder Engagement: The Investors Speak
– Compensation Committees & Advisors: The NYSE & Nasdaq Speak
– Realizable Pay Disclosure: How to Do It
– How to Improve Pay-for-Performance Disclosure
– We Don't Have a Good Pay Story: What Do We Disclose?
– How to Avoid Executive Pay Disclosure Litigation
– Peer Group Disclosures: What to Do Now
– In-House Perspective: Strategies for Effective Solicitations
– The SEC Staff Review Process
– Creating Effective Clawbacks (and Disclosures)
– Pledging & Hedging Disclosures
– The Executive Summary
– The Art of Supplemental Materials
– Dealing with the Complexities of Perks
– Say-on-Parachute & Post-Deal Disclosure Developments
– Compensation Accounting, Tax & Risk Assessment Disclosures
– Shareholder Proposals & Executive Pay
– The Rise of Political Contribution Disclosures

Early Bird Rates - Act by May 10th: Huge changes are afoot for executive compensation practices and the related disclosures - that will impact every public company. We are doing our part to help you address all these changes - and avoid costly pitfalls - by offering a special early bird discount rate to help you attend these critical conferences (both of the Conferences are bundled together with a single price). So register by May 10th to take advantage of the 15% discount.

Upcoming Webcasts on TheCorporateCounsel.net: Join us on May 8th for this webcast - "Social Media: Parsing the Hypos" - during which two legal pros (Dave Lynn & Davis Polk's Joe Hall) and two IR pros (Q4's Darrell Heaps & IR Web Report's Dominic Jones) will join an in-house lawyer - Zillow's Brad Owens - to parse a group of hypotheticals to determine what is feasible - and what is not - under the SEC's Regulation FD framework. The panel will also cover what are effective IR strategies to leverage social media and more.

And join us on June 11th for the webcast - "A Proxy Season Post-Mortem: Lessons Learned" - to hear Ning Chiu of Davis Polk; Marty Dunn of O'Melveny & Myers; Keir Gumbs of Covington & Burling; and Dave Lynn of TheCorporateCounsel.net & Morrison & Forester analyze the latest developments that transpired during the proxy season.

And join us on June 26th for the webcast - "E-Proxy Practice Tips: Five Years Later" - to hearTom Ball of Morrow & Co., Chuck Callan of Broadridge Financial Solutions, Keir Gumbs of Covington & Burling and Paul Schulman of MacKenzie Partners provide practice tips and cover the latest e-proxy developments.

And join us on October 9th for the webcast - "Dealing with the Board: Presentations, Etiquette & More" - during which three long-time practitioners who have been before hundreds of boards will discuss how to get hired, what types of presentations work best for boards, how to handle tricky relationship and culture issues and how to handle issues that come from outside the boardroom. Join legends Stasia Kelly of DLA Piper, John Olson of Gibson Dunn and Stewart Landefeld of Perkins Coie for this special event.

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 Webcasts on DealLawyers.com: Join us on May 7th for the webcast - "FCPA Issues in Deals Today" - to hear Mauricio Espana and Derek Winokur of Dechert and Rebekah Poston of Squire Sanders explain how FCPA diligence is being conducted and how reps & warranties related to FCPA violations are being negotiated, and more.

And join us on June 6th for the webcast - "Conflicts of Interest: How to Handle in Deals" - to hear Steven Haas of Hunton & Williams, Mike Reilly of Potter Anderson and Melissa Sawyer of Sullivan & Cromwell discuss how boards deal with conflicts of interests in the wake of El Paso, Del Monte and Southern Peru, including in relation to stapled financing.

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.

Upcoming Webcast on CompensationStandards.com: Join us on June 12th 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 this webcast 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.

The Strange Case of SEC Chair White's Confirmation

This Congress remains a riddle wrapped in a conundrum. As noted in this article, Mary Jo White's recent confirmation - which Broc blogged as a "slam dunk" - turned out to be less than meets the eye.

The term of a SEC Commissioner is a fixed 5 years, with one Commissioner's term expiring each year. Mary Schapiro left the SEC early - which is not atypical - as her term expires next year. So when President Obama nominated Mary Jo for Mary's seat, he nominated her to complete the one year left on that term and he nominated her for the full 5 year term that follows. This also is not atypical, with the most recent examples of Harvey Pitt becoming Chair after being confirmed for the remainder of Arthur Levitt's term and the full 5 year term that followed (and the same happened for John Shad in 1981).

In this case, the Senate Banking Committee only voted on the remaining one year term - not what Obama had envisioned. Apparently, this short-timer status was a deal cut to get votes from both sides of the aisle. No vote was taken on the following five-year term. I'm not aware of any another occasion when the Senate declined to vote on the follow up term. So this Congress continues to break new ground...

Social Media: SEC Issues Reg FD Guidance (In Form of Enforcement Report)

In March, the SEC's Division of Investment Management issued this guidance in an effort to clarify when mutual funds must file social media messaging with the SEC. The guidance provides 5 categories of communications that IM doesn't believe needs to be filed - and examples of communications that do. [Not that it really matters, but why does IM bury the SEC logo on the bottom of its guidance? Probably just Broc's pet peeve but it seems to be easily mistaken for a law firm memo.]

At the time, Broc thought Corp Fin might weigh in with its own social media guidance soon - particularly due to widespread criticism in the wake of news that Netflix had received a Wells Notice from the Division of Enforcement (see his own blog on this topic - and Prof. Joe Grundfest's amicus curiae brief).

The answer is "yes, sort of." In early April, the SEC issued this Section 21(a) Report of Investigation stating that Enforcement has decided not to go after Netflix - mostly because its 2008 "corporate use of website" guidance may not have been sufficiently clear about how it applies to social media (given that social media exploded onto the scene more recently). More importantly, the Report clarifies that the SEC's '08 framework is sufficiently flexible to accommodate new "push" technologies like Facebook and Twitter - so that companies should continue to apply their own facts against whether they have created a "recognized channel of distribution" using that framework.

Even though the SEC's press release touts the new report as a greenlight for companies - the press release's title is "SEC Says Social Media OK for Company Announcements If Investors Are Alerted" - Broc is dubious that companies and their advisors will see it that way. For starters, the new guidance comes from an Enforcement report (here's an explanation of what a Section 21(a) report is) - perhaps not the best vehicle to encourage new practices. [Not surprisingly, many mass media reporters were fooled by the SEC's title and report that the SEC has "new" disclosure rules.]

And it doesn't get into the nitty gritty like IM's new guidance does. Given the slow adoption rate of social media by IR, finance and governance professionals - compared to the rest of the world - Broc is not convinced this will be enough to get folks moving. We have posted oodles of memos on the SEC's new report in our "Social Media" Practice Area.

Social Media: Netflix Begins Using Facebook as Channel - Five Companies Announce Channel Use

When Broc blogged about Netflix filing a Form 8-K to list five social media channels by which it may disseminate company information. he mused that the company might have done this as CYA - but he was wrong. As noted in this WSJ article, CEO Reed Hastings disclosed on his personal Facebook page that Netflix's customers had streamed more than four billion hours of video over the past three months - a post similar to the kind that got him in trouble with the SEC before the Section 21(a) report.

Meanwhile, four other companies have filed announcing social media channels. In addition to Netflix, AutoNation, Zynga, DLH Holdings and Infrax have done this. Broc is maintaining a list of 8-Ks filed by companies who announce they may disseminate information via social media in our "Social Media" Practice Area. And don't forget our upcoming webcast: "Social Media: Parsing the Hypos."

Social Media: Parsing the Hypos

Given all the excitement over the SEC's Section 21(a) report regarding Netflix and social media, we have calendared this May 8th webcast - "Social Media: Parsing the Hypos" - during which two legal pros (Dave Lynn & Davis Polk's Joe Hall) and two IR pros (Q4's Darrell Heaps & IR Web Report's Dominic Jones) will parse a group of hypotheticals to determine what is feasible - and what is not - under the SEC's Regulation FD framework. The panel will also cover what are effective IR strategies to leverage social media and more. Broc has already drummed up a set of hypos for the panel to consider - but he would like to crowdsource and get your ideas. Shoot him an email with your own hypos.

Checklist: Social Media Business Case for Investor & Analyst Engagement

Don't forget Broc's practical checklist about making the social media business case for investor & analyst engagement. And his "How to Use Twitter Handbook," both posted in our "Social Media" Practice Area...

Social Media: The NYSE Weighs In

After the SEC's Section 21(a) report on Netflix, the NYSE sent a reminder to listed companies about its process for handling material news. To Broc, it reads as a reminder of the NYSE process - not as a wet blanket as it could be interpreted. In the excerpt from the reminder below, the NYSE says "Regulation FD-compliant manner" - so if it's good enough for the SEC, then it's good enough for the NYSE. It's just that companies have to provide advance notice to the NYSE for certain material events. So it should not change the considerations for using social media much. The relevant excerpt from the NYSE's reminder is below:

The Securities & Exchange Commission issued guidance last week on the acceptability of utilizing social media outlets like Facebook and Twitter to comply with Regulation Fair Disclosure. Given the SEC's new guidance, companies may be considering the merits of utilizing these outlets for disclosure purposes. Please be aware that the NYSE has certain disclosure rules that companies must follow and we thought it might be helpful to review these rules with you so that you can consider them as you evaluate the SEC's new guidance. Additionally, as the 2013 proxy season is now underway, companies are reminded that NYSE rules require listed companies to provide the NYSE with at least 10 days advance notice of all record dates.

NYSE's Timely Disclosure Rule:
Under Section 202.06 of the NYSE Listed Company Manual, companies can comply with the NYSE's timely disclosure rule by issuing a press release or by means of any Regulation FD compliant method (or combination of methods). When news will be released during market hours (leading up to the opening and between 9:30 am - 5:00 pm EST), companies are reminded that the NYSE requires that ten minutes advance notice be provided to the NYSE's Corporate Actions & Market Watch team prior to the dissemination of any news that is deemed to be of a material nature or that might impact trading in the company's securities, or at the time the company becomes aware of a material event having occurred.

Companies must provide the NYSE with the means by which the company intends to disseminate the news and the NYSE must have the ability to view the news to ensure it has been fully disseminated. This advance call provides the NYSE with an opportunity to consider whether a temporary trading halt in the company's securities should be put in place. A halt in trading allows investors to evaluate the official company news in its entirety and adjust their trading positions as they see fit.

Further to this rule:
- The NYSE expects that a company representative will be available to discuss the details of the news and answer any potential questions the NYSE may have.
- While not intended to be an exhaustive list, examples of news the NYSE would consider to be potentially material include: earnings, mergers/acquisitions, securities offerings and pricings related to these offerings (see below for more information), major product launches or new patent approvals, dividend announcements, etc.
- In instances of unusual market activity or rumor-driven activity, a company is expected to contact the NYSE and promptly release to the public any news or information which might reasonably be affecting the market in its securities. Where there is no knowledge of material news, a company may be contacted by the NYSE and asked to issue a press release promptly so that the activity/rumor can be addressed for the overall market.
- While foreign private issuers are not required to comply with Regulation FD, they must still comply with the NYSE's timely disclosure rule. Given that foreign-based issuers are operating in different time zones, it is especially important that the NYSE be provided with contact details for company representative(s) that can be reached during the NYSE's market hours and who have the authority to speak on a company's behalf. This contact information is critical in case a situation were to arise where the NYSE became concerned about the trading in your company's securities and a company representative was not immediately available; the NYSE may be forced to halt trading in your company's securities until information can be received by the NYSE to support the resumption of trading.

7th Say-on-Pay Failure of the Year: 1st Company to Fail Twice - But Not in Consecutive Years

As noted in its Form 8-K, Cogent Communications Group is the 7th company holding an annual meeting in 2013 to fail to gain majority support for its say-on-pay (40% support). Cogent also failed in 2011, with 39% support. That makes them the first company to fail, pass (68% in '12), then fail again. And as noted in its Form 8-K, Biglari Holdings is the 6th company holding an annual meeting in 2013 to fail to gain majority support for its say-on-pay (33% support since abstentions count as "against"). Hat tip to Karla Bos of ING Funds for pointing these out!

Investor Group Proposes Corporate Sustainability Disclosure As Global Listing Standard

In what can be a new trend, an investor group, the Investor Network on Climate Risk - led by Ceres - has issued a consultation paper in an effort to place sustainability disclosure requirements into listing standards on a global basis. Companies are welcome to submit comments during the consultation period, which ends May 1st. The INCR webpage hosts the Consultation Paper, the supporting Appendices and a Comment Template. After receiving comments, a subset of the INCR investors will sort through the comments and figure out where investors have the greatest agreement. The group has already started engaging with stock exchanges - including those that already have a sustainability standard - in an effort to install a uniform standard at all of them.

Here's an excerpt from a blog by Davis Polk's Ning Chiu on this:

INCR includes notable investors such as BlackRock and others traditionally associated with being active on corporate social issues, including Boston Common Asset Management and the AFL-CIO. The group is concerned that the ability to factor sustainability issues into investment decisions is difficult due to what they perceive as inconsistent and insufficient corporate reporting. In addition, INCR members have heard from companies that have been reluctant to report on sustainability that they are not certain what specific information investors need and how it will be used. INCR members have been in discussions with NASDAQ OMX and several other stock exchanges, and the paper is in response to those exchanges urging INCR to develop more clarity and consensus on "a unified sustainability disclosure listing standard that could be adopted by all stock exchanges."

The three segments of a listing requirement being proposed for listed issuers globally include:

- Materiality assessment in annual financial filings where management is expected to discuss its approach to determining the company's material environmental, social and governance (ESG) issues, with key components that include: (a) how the company determined its material ESG issues; (b) who was involved in that determination; (c) which ESG issues were determined to be material and why, including a discussion of risks and opportunities related to each issue and the connection to financial performance and business strategy; and finally (d) a periodic review of the assessment and reporting on the frequency of scheduled reviews.
- A Global Reporting Initiative (GRI) content index, with every company providing a hyperlink in its annual financial filings to such an index, which will inform investors about the availability and location of a company's ESG data.
- Corporate ESG disclosure about the following categories of issues, using a "comply or explain" approach: climate change; diversity; employee relations; environmental impact; government relations; human rights; product impact; and safety and supply chain.

The consultation paper notes that about 3,400 companies published a sustainability report as of 2011, and few companies discuss material ESG information in their financial filings. Bloomberg published corporate ESG data for over 5,000 companies in 2011, with more than 120 ESG indicators on display.

The paper contains a number of questions seeking feedback. The initial comment, or consultation, period ends on May 1, 2013. INCR intends to host meetings to discuss the comments with other investors, and Nasdaq has committed to engage in discussions with other stock exchanges as well as the International Organization of Securities Commissions (IOSCO).

Checklist: Corporate Sustainability Initiatives

Check out this extensive checklist on corporate sustainability initiatives - posted in our "ESG" Practice Area - courtesy of Kelley Drye's Jeanne Solomon & Steven Humphreys. If you would like to contribute a checklist to our site, please be in touch with Broc.

How You Can Help Handle a Boardroom Conflict

Great practical guidance on a challenging topic. In this podcast, Alan Rudnick of Masters-Rudnick provides some insight into how general counsels should handle director conflicts of interest, including:

- If conflict arises on the board, what role does the general counsel or corporate secretary have?
- What if the conflict involves the CEO?
- Does that put the general counsel/secretary in an awkward position?
- What if it does appear that the GC/secretary could lose his job?
- If there is major conflict among directors - or between CEO and directors - what can the GC/secretary do?
- What are techniques that the GC/secretary can suggest if asked for advice?
- What advice do you have for the GC/secretary?

You should also read Alan's checklist on this topic. If you want to contribute a short checklist to this site, just let Broc know...

IPOs & the JOBS Act: One Year Later

After reviewing 184 IPOs by emerging growth companies from the past year (completed or in registration), Latham & Watkins put together this "IPO Playbook" on the 1st anniversary of the JOBS Act, including finding:

- Title I has changed the IPO process. Over 90 percent of EGCs that publicly filed their first registration statement after April 5, 2012 elected at least one accommodation offered by the JOBS Act.
- EGCs are found across many industries, with technology companies representing the largest group of EGC IPO issuers. After technology, the top five industries were energy, healthcare, financial services, real estate and pharmaceuticals.
- Confidential submission is particularly popular. Approximately 65 percent of EGCs that publicly filed their first registration statement after April 5, 2012 submitted at least one draft registration statement for review by the SEC prior to public filing.
- Disclosure about EGC status has become standard. EGCs include standard disclosure in their IPO registration statements about their EGC status and the IPO on-ramp accommodations they are using.
- Testing-the-waters practices are still evolving. The decision of whether, when and how to test the waters with potential institutional investors to gauge their interest in a contemplated offering is made by issuers and their underwriters on a case-by-case basis.
- Foreign private issuers are taking advantage of Title I. They comprised almost 10 percent of US IPOs completed by EGCs since April 5, 2012.
- The pipeline for EGC IPOs remains robust. There are currently 65 EGCs in registration that have publicly filed a registration statement.

GAO Issues "Value of Political Intelligence" Report

Preparing for the Annual Meeting: Don't Forget the Issues of the Day

In early April, the GAO issued this report about the value of political intelligence and the cottage industry that it has spawned, providing "inside baseball" about the potential effects of legislative and executive branch actions. The report discusses the GAO's findings - but makes no recommendations. This Legal Times article notes that Sen. Grassley and Rep. Slaughter will introduce a bill requiring political intelligence disclosure.

Preparing for the Annual Meeting: Don't Forget the Issues of the Day

This Huffington Post article entitled "Starbucks Gay Marriage Stance: CEO Puts Smackdown On Anti-Marriage Equality Shareholder" is a good reminder to prep your officers & directors for questions related to headline news (here's a video of Howard Schultz's response to the question). The answers to those questions have the greatest potential to become headline news themselves. So prior thought, discussion and analysis is important. Don't forget we have 15 brand new annual meeting checklists for you...

More on "The Mentor Blog"

Broc continues 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:

- A Record Year for Corporate Criminal Fines
- Study: Excessive Optimism in Earnings Releases Can Backfire
- NY State Comptroller Sues Over Political Spending Disclosure
- US-China Audit Spat May Spill Over
- The 2012 US Technology/Silicon Valley Board Index

More on our "Proxy Season Blog"

We continue to post 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:

- Declassification, Political Spending Again Ubiquitous
- Campaign Mounts for Independent Chairs
- No-Action Letter Challenge to New Version of Retail Proxy Access Proposal
- Western Union Seeks to Exclude Norges Bank Proxy Access Shareholder Proposal
- Survey: Mutual Fund Support for Corporate Political Disclosure

- Unbundling Lessons Learned from the Apple Case
- Apple: Judge Dismisses Say-on-Pay Injunction Request
- A European Report on Proxy Advisors
- Climate Risks at Banks: Corp Fin Doesn't Allow Shareholder Proposal Exclusion
- Calls for Proxy Access Whither

People: Who's Doing What and Where

At the SEC, the Senate confirmed Mary Jo White in early April as the next SEC Chair by unanimous consent, with no roll-call vote. Meanwhile, this WSJ article and BusinessWeek article note that former SEC Chair Mary Schapiro has found full-time work as a consultant for Promontory in Washington, serving as a managing director leading the firm's governance and markets practice.

As long rumored, Andrew Ceresney was announced as the co-head of the SEC's Enforcement Division in late April. Andrew served as Chair White's longtime lieutenant at two of her two prior jobs - Debevoise & Plimpton and US Attorney for the Southern District of New York. Having two Directors at once certainly is unusual - but as this DealBook piece notes - the arrangement could be temporary as George Canellos (elevated to Co-Director from Interim Director) could be headed back to private practice soon enough. This DealBook piece portrays low morale in the Division.

The debate over "are two leaders better than one?" is an interesting one. Some claim it's not the greatest governance move as it can create some dysfunction (see this article). Who is ultimately accountable? What if the two leaders wind up in turf battles? It's not hard to imagine many close calls winding up being a split decision among the two heads - who breaks the tie? And what does that do to their relationship with each other - particularly how does that impact the co-head who lost the tie but who winds up being right in hindsight? On the other hand, there are arguments that it can work well. A handful of companies do have co-CEOs...

And Annie Small has been named as the SEC's General Counsel - the first woman to serve in that role. Annie comes from the White House - the first woman to serve in that role. Annie comes from the White House - and she briefly worked as the SEC's Deputy General Counsel for Litigation and Adjudication and WilmerHale before that. She replaces Geoffrey Aronow, who becomes Senior Counsel to Chair White. Note that Colleen Mahoney was Acting General Counsel for several months when Dick Walker switched to Director of Enforcement and before Harvey Goldschmidt came on board.

The Revolving Door Debate Continues

When SEC Chair White went before the Senate Banking Committee, she was asked "revolving door" questions as noted in this blog. This is a topic that Broc has blogged about quite a few times as he thinks the concerns are overblown; here is his latest. This debate will continue as reflected in these recent articles:

-ProPublica's "Friends in Low Places: Where The Real Lobbying Happens"

- Forbes' "The Wall Street-Washington Revolving Door Is As American as Apple Pie"

-Bloomberg's "Mary Jo White Spins the SEC's Revolving Door"

-Salon's "The sheriff of Wall Street has its back"

-MarketWatch's "Sellouts run the SEC, like everything else"

-DealBook's "S.E.C.'s Revolving Door Hurts Its Effectiveness, Report Says", describing the latest report from POGO (Project on Government Oversight)

In Corp Fin, Senior Special Counsels Lily Brown and Jennifer Zepralka have left the Division and joined WilmerHale as Partners.

At the FASB, Russell Golden was appointed as its new Chair.

Conference Calendar

What's New on Our Websites

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

Your Input, Please

Please let us know what you like - and don't like - so we can tailor TheCorporateCounsel.net to be more of a hands-on resource for you and your colleagues.

Because we view TheCorporateCounsel.net as a "community" site, let us know if you would like to contribute content to our site. E-mail comments, suggestions and other input to broc.romanek@thecorporatecounsel.net.

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