TheCorporateCounsel.net

January 14, 2022

More on Governance: A Passing Grade

Having just finished grading 19 final exams for the course I co-teach at the Georgetown University Law Center, I can certainly recognize the difficulty in coming up with one letter grade to mark a long semester of work. That challenge doesn’t slow down the Institute for Internal Auditors and the Neel Corporate Governance Center at the University of Tennessee Knoxville, which come up with an annual grade for the state of corporate governance in the United States, which they call the American Corporate Governance Index (ACGI). The ACGI is described as follows:

The ACGI gauges the extent to which companies are effectively achieving each of the Guiding Principles from the perspectives of Chief Audit Executives (CAEs). CAEs are uniquely positioned to provide an independent and objective enterprise-wide perspective of the organization. The index goes beyond the publicly observable aspects of corporate governance to provide an internal perspective on the effectiveness of corporate governance throughout the organization. In forming the survey questions that support the ACGI, it is assumed that corporate governance does not allow for a one-size-fits-all approach and that companies will need to find their own best practices based on the company’s age, size, complexity, extent of international operations, etc.

The 2021 overall ACGI score for corporate governance health in the U.S. is a B- (81), down from an 82 in 2020. The report indicates that this year’s score suggests “that improvements in governance quality may be stymied as companies deal with the ongoing uncertainty of a global pandemic and the complexity of its fallout on supply chains, talent management, economic and political volatility, and more.”

Data from the 2021 ACGI survey signal a number of areas where governance improvements retreated: (i) companies earning “A” grades in governance dropped to 14% from 19% in 2020; (ii) potential declines in important employee-related governance measures were noted, such as providing adequate training and compensating in a way that promotes ethical decisions; and (iii) despite increased activism related to social and environmental issues, companies are slow to address the needs of a broad range of stakeholders in their business decisions.

– Dave Lynn

January 14, 2022

Time to Review Your Insider Trading Policy?

One of the many interesting topics that came up during our webcast “Rule 10b5-1 & Buybacks: Practical Impacts of SEC’s Proposals” earlier this week (a replay is now available and a transcript will be coming soon) was whether companies should review and update their insider trading policies now given the SEC’s proposed disclosure requirement in Item 408(b) of Regulation S-K. Proposed Item 408(b) of Regulation S-K would require companies to disclose whether the company has adopted insider trading policies and procedures governing the purchase, sale, and other dispositions of the company’s securities by directors, officers, and employees or the company itself that are “reasonably designed to promote compliance with insider trading laws, rules, and regulations, and any listing standards applicable to the issuer.” If a company has not adopted such insider trading policies and procedures, the company must explain why it has not done so, and if the company has adopted insider trading policies and procedures, it must disclose such policies and procedures.

I note that yesterday the SEC took the unusual step of posting a new version of the Rule 10b5-1 and Insider Trading proposing release and removing the prior version from the website. There is no indication of why the old version was replaced. The original version of releases that are posted on the SEC’s website are sometimes replaced with corrected versions to conform to the Federal Register version, but that does not appear to be the case in this instance because the website does not indicate that the proposing release has been published in the Federal Register.

As we discussed during the webcast, there are a few areas that companies may want to revisit now in their insider trading policies:

  • The treatment of bona fide gifts – in the proposing release, the SEC says the disclosure “could address not only policies and procedures that apply to the purchase and sale of the registrant’s securities, but also other dispositions of the issuer’s securities where material nonpublic information could be misused such as, for example, through gifts of such securities.”
  • The approach to monitoring material nonpublic information – in the proposing release, the SEC mentions as a potential disclosure item “information on the issuer’s process for analyzing whether directors, officers, employees, or the issuer itself when conducting an open-market share repurchase have material nonpublic information.”
  • The preclearance process – in the proposing release, the SEC mentions as a potential disclosure item “the issuer’s process for documenting such analyses and approving requests to purchase or sell its securities.”
  • The policy’s compliance mechanisms – in the proposing release, the SEC mentions as a potential disclosure item “how the issuer enforces compliance with any such policies and procedures it may have.”

One of the perennial challenges with updating insider trading policies is trying to benchmark a company’s policies against those of other companies, because only some companies voluntarily choose to post their insider trading policies on their website. Over the years, we have often conducted surveys about practices around things like trading restrictions and to whom within the organization the various aspects of the policy apply, as well as other areas of common interest, but it is usually impossible to get a picture of the entire landscape from the voluntary disclosures and survey results. As a result, if Item 408(b) were adopted, it would probably go a long way to helping companies get a handle on what their peers are doing in their insider trading policies.

– Dave Lynn

January 14, 2022

Now is Your Chance! Corp Fin Posts a Great Job Opportunity

If you are a securities law nerd and you feel like now might be a good time to take part in the Great Resignation, take a look at the SEC’s recent job postings for the Division of Corporation Finance. Corp Fin is now hiring for the job of Chief Counsel, which I held in Corp Fin from 2003 to 2007. I always say that my time as Chief Counsel was the best job I ever had a securities lawyer, because every day you get to “drink from the firehose” of securities law issues. It is also a great opportunity to work with the very talented Staff in the Office of Chief Counsel, in Corp Fin and in the other Offices and Divisions at the SEC. If you have any questions about what it is like to serve in Corp Fin or the job of Chief Counsel in particular, always feel free to reach out to me.

– Dave Lynn

January 13, 2022

NACD Releases 2022 Governance Outlook

The National Association of Corporate Directors recently published its 2022 Governance Outlook, which is designed to give corporate directors and senior executives a comprehensive overview of major business and governance issues that are likely to demand board focus over the coming year.

The topics addressed in the NACD Governance Outlook include:

  • Board Agendas Must Change to Meet 2022 Director Priorities
  • Embracing Greater Investor Interest in ESG Practices
  • The Role of the Board in Overseeing ESG
  • How Purpose is Changing the Board M&A Oversight Role: What Directors Are Saying
  • Board Responsibilities in Mitigating Ransomware Risk in 2022
  • The Role of Boards in Assessing DE&I Practices with Advanced Data Analytics
  • Directors and Officers Liability Threat and Insurance 2022 Outlook

– Dave Lynn

January 13, 2022

State Street Announces 2022 Priorities

State Street Global Advisors released its annual letter to board members of portfolio companies outlining the engagement issues that SSGA will prioritize this year. The letter indicates that SSGA’s main focus for 2022 “will be to support the acceleration of the systemic transformations underway in climate change and the diversity of boards and workforces.”

On the climate change front, SSGA states that, for the 2022 proxy season, it will expect companies in major indices in the US, Canada, UK, Europe, and Australia to align with climate-related disclosures requested by TCFD, including whether the company discloses: (1) board oversight of climate-related risks and opportunities; (2) total direct and indirect GHG emissions (Scope 1 and Scope 2 emissions); and (3) targets for reducing GHG emissions. SSGA will take voting action against directors if companies do not meet SSGA’s specific disclosure expectations. Further, SSGA will launch a targeted engagement campaign with “the most significant emitters” in its portfolio to encourage disclosure aligned with SSGA’s disclosure expectations for climate transition plans, and in 2023 SSGA will hold companies and directors accountable for failing to meet those disclosure expectations.

On diversity, SSGA has enhanced its diversity policy to provide that, beginning in the 2022 proxy season, SSGA will expect all of its portfolio companies to have at least one woman on their boards. Additionally, beginning in the 2023 proxy season, SSGA will expect boards to be comprised of at least 30% women directors for companies in major indices in the US, Canada, UK, Europe, and Australia. In each instance, SSGA will vote against the Chair of the board’s Nominating Committee or the board leader should a company fail to meet these expectations.

The letter also notes that SSGA has expanded its focus on diversity to include race and ethnicity, and for the 2022 proxy season SSGA will take voting action against responsible directors if: (1) companies in the S&P 500 and FTSE 100 do not have a person of color on their board; (2) companies in the S&P 500 and FTSE 100 do not disclose the racial and ethnic diversity of their boards; and (3) companies in the S&P 500 do not disclose their EEO-1 reports.

– Dave Lynn

January 13, 2022

My Favorite Blogs: Career Day

As I roll into my 15th year of writing for the CCRcorp publications, I am reflecting back on some of my favorite blogs, podcasts and publications over the years. When I joined the organization back in 2007 after leaving the SEC, I had never written a public blog, so I really had no idea what to expect. Under Broc’s tutelage, I learned that it was important to lighten up once in a while and to not always focus on the securities and governance content. That wise advice made me realize that a blog is much more like a conversation than a newsletter or a treatise, so you have to show your personal side from time to time.

One of the most amazing things about writing the blog is the incredible feedback that you get from our members. To me, that is one of the most rewarding aspects of the job. Over the years, I have found that the more personal blogs tend to generate the most feedback, because they are often relatable to the experiences of our members. I will never forget the blog which generated the most member feedback, which was my discussion of presenting at my child’s Career Day. Anyone who is a parent of elementary school-age children can relate to the trepidation that a lawyer feels when you have to compete with the firemen, policemen, air force pilots, etc. at Career Day. Members enjoyed my approach on the presentation and some asked whether they could use my materials for their own presentations, including a prospectus for 4th graders!

– Dave Lynn

January 12, 2022

SEC Climate Change Comment Letters: Where Do They Stand?

A member recently asked in our Q&A Forum where things stand with the SEC’s review of filings for climate change disclosure. This focused review effort by the Division of Corporation Finance was initiated by then-acting Chair Allison Herren Lee, who directed the Staff to review the extent to which issuers address the topics identified in the SEC’s 2010 climate change guidance. In September 2021, the Staff released a sample comment letter regarding climate change disclosure, which echoed the comments that issuers had been receiving from the Staff around that time. When we last checked in on this topic in November, issuers found themselves on the receiving end of a second round of comments, with the Staff asking more questions around the determination of materiality with respect to climate change information.

To date, we have not seen any correspondence from completed climate change reviews posted on EDGAR (other than situations where the comments have been raised on registration statements). This suggests that the reviews are ongoing, and anecdotally it seems that issuers have been receiving multiple rounds of comments from the Staff concerning their climate change disclosure (or lack thereof). From our understanding, the comments continue to focus on the determination as to materiality of the climate change information, and in some cases issuers are getting more comments in the subsequent rounds than they did in the first round. Given this trajectory, it does not seem likely that the comment process will wrap up any time soon, which makes things difficult for the subject issuers who are now in the process of preparing their Form 10-Ks.

For issuers who are not on the receiving end of the Staff’s comments, the Sample Letter remains a good resource for considering the applicability of the 2010 guidance to the issuer’s disclosure for the upcoming reporting season.

– Dave Lynn

January 12, 2022

New Model D&O Questionnaires from the NVCA

The National Venture Capital Association (NVCA) recently published a new Model Questionnaire for Directors and Executive Officers and a new Questionnaire for 5% Holders in Connection with Public Offerings. These documents are designed to be comprehensive and to be used as companies go public. Check them out today in our D&O Questionnaires Practice Area.

– Dave Lynn

January 12, 2022

Tomorrow’s Webcast: “ISS Forecast for the 2022 Proxy Season”

Webcast Week closes out strong tomorrow with our webcast “ISS Forecast for the 2022 Proxy Season.” Marc Goldstein, Head of US Research at ISS, will be joined by Ning Chiu from Davis Polk and Bob Lamm from Gunster. They will review what happened in the 2021 proxy season, the changes that ISS is making to its policies in 2022 and a variety of hot topics for the upcoming proxy season.

If you attend the live version of this 60-minute program, CLE credit will be available. You just need to submit your state and license number and complete the prompts during the program.

Members of TheCorporateCounsel.net are able to attend this critical webcast at no charge. The webcast cost for non-members is $595. If you’re not yet a member, subscribe now by emailing sales@ccrcorp.com – or call us at 800.737.1271.

– Dave Lynn

January 11, 2022

SEC Comment Periods Draw More Attention: Two Politicians Weigh In

In yesterday’s blog, I mentioned how the relatively short comment periods contemplated for the SEC’s recent rulemaking proposals have drawn some attention, even though delays in publishing the proposing releases may ultimately frustrate plans to rush those rulemakings through the process. Interestingly enough, Patrick McHenry (R-NC), the Ranking Member of the House Committee on Financial Services, and Pat Toomey (R-PA), the Ranking Member of the Senate Committee on Banking, Housing, and Urban Affairs, also took notice of the SEC’s comment periods, sending a letter yesterday to Chair Gensler expressing concern that “rulemakings under your tenure have consistently provided unreasonably short comment periods, which will harm the quality of public comment and may run afoul of the Administrative Procedures Act.” The letter notes that the Administrative Conference of the United States, an independent federal agency charged with recommending improvements to administrative process and procedure, endorses a comment period of at least 60 days for significant regulatory actions.

Congressman McHenry and Senator Toomey urge Chair Gensler to immediately extend all comment periods for the SEC’s proposed “rules of significance” to at least 60 days, including “reopening the comment filing for those rulemakings with shorter comment periods that have closed prematurely.” They request a response by January 24, 2022.

One thing I would note in this context is that the SEC does not actually stop accepting comments when the “deadline” for comments has passed. The comment file remains open, and comments are accepted, up to the time that final rules are adopted. In fact, in my experience of both working on many comment letters over the years and working on rulemaking at the SEC, the Staff that is working on the rulemaking continues to consider any comments that come in after the deadline whenever it is possible to do so. The reality is that no matter how long you make the comment period for a proposed rulemaking, it is still going to be difficult to solicit meaningful comments from the public, and from the perspective of those preparing the comments for the SEC, it is always going to be difficult to prepare thoughtful comments in a timely manner unless you have people dedicated to doing so. So, in the end, the SEC Staff working on the rulemaking and the individuals and groups that provide the comments are just doing the best they can in the time allotted.

– Dave Lynn