TheCorporateCounsel.net

July 28, 2016

Selling Shareholders: Corp Fin Revises a CDI

A few days ago, Corp Fin revised Regulation S-K CDI 140.02 – and withdrew reg S-K CDI 240.04. Revised CDI 140.02 now states:

Question: If a selling security holder is not a natural person, how does a registrant satisfy the obligation in Item 507 of Regulation S-K to disclose the nature of any position, office, or other material relationship that the selling security holder has had within the past three years with the registrant or any of its predecessors or affiliates?

Answer: In addition to disclosing any material relationships between the registrant and the selling security holder entity, the registrant must disclose the Item 507 information about any persons (entities or natural persons) who have control over the selling entity and who have had a material relationship with the registrant or any of its predecessors or affiliates within the past three years. In such case, the registrant must identify each such person and describe the nature of any relationships. [July 26, 2016]

Executive Compensation: Disclosing Negative Discretion

As part of my “Big Legal Minds” podcast series – check out this 11-minute podcast, during which Shannon Kinney of ConocoPhillips describes how to best disclose a compensation committee’s decision to exercise negative discretion for an annual incentive plan, including:

1. How has the company improved the format & usability of the proxy in recent years?
2. Can you give us the background of how the compensation committee applied negative discretion for its annual incentive plan?
3. How did the company decide to describe its decision to apply negative discretion (pages 49-52 of the 2016 proxy)?

Remember that these podcasts are also available on iTunes or Google Play (use the “My Podcasts” app on your iPhone and search for “Big Legal Minds”; you can subscribe to the feed so that any new podcast automatically downloads…

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Regulation A+: Secondary Market

As noted in this blog by Steve Quinlivan, the SEC has posted this presentation about the secondary market for Regulation A+ offerings – and in this commentary, SEC Chair White noted there have been over 60 Regulation Crowdfunding offerings so far with a total of $4.4 million in funds committed – and 12 funding portals registered with the SEC and become members of FINRA.

Broc Romanek

July 27, 2016

Proxy Access: When Will We See Our 1st “Schedule 14N”?

With all the proxy statements now filed for this proxy season, we will have to continue to wait for our first “Schedule 14N.” You will recall that a Schedule 14N must be filed by any shareholder – from outside the company – who nominates a director using the proxy access process. With over 240 companies having adopted proxy access (all of them listed in the appendix of this memo), it could be soon that we see one since it’s been over 5 years from when Schedule 14N was “born.

Poll: When Will We See Our 1st “Schedule 14N”?

But I’ll let you make your own guess for when we see that first one in this anonymous poll:

polls

Broc Romanek

July 26, 2016

Non-GAAP Measures: Checking Internal Controls & Audit Committee Tools

As the transcript for our recent webcast – “Non-GAAP Disclosures: The SEC Speaks!” – continues to be wildly popular since it featured Corp Fin’s Chief Accountant Mark Kronforst & heavyweights Meredith Cross and Dave Lynn, we continue to post a ton of memos about Corp Fin’s new CDIs – as well as this new non-GAAP tool for audit committees.

As part of its focus on non-GAAP measures, Corp Fin has questioned whether companies (& their audit committees) have implemented appropriate controls regarding the disclosure of such measures. This memo discusses the types of controls that could be established and provides high-level examples of control issues and related responses for consideration in connection with non-GAAP measures.

General Motors recently tweeted earnings results including adjusted results. And here’s a few MarketWatch pieces entitled:

– “GE’s earnings report may not be wrong, but it may still mislead investors

– “How FedEx changed its earnings release after SEC warning

Non-GAAP Measures: A Review of Old Corp Fin Comments

This Audit Analytics blog analyzes Corp Fin comments in the non-GAAP area from a period – 2014-2015 – before the new CDIs were issued. These comments don’t necessarily reflect what Corp Fin is focusing on now given the new guidance…

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:

– Japan: First Signs of Activism
– Investor Policies: Director Age & Tenure Limits
– NYC Pension Funds: Proxy Voting Guidelines Updated
– State Street Global Advisors: How It Voted
– Who Decides Whether a Shareholder Has Complied With An Advance Notice Bylaw?

Broc Romanek

July 25, 2016

Lynn Turner: The State of Auditing

As part of my “Big Legal Minds” podcast series – check out this one-hour podcast, during which Lynn Turner describes his diverse – and fascinating – career, as well as offers his perspectives on the state of things, including:

1. How did you wind up becoming an accountant?
2. How did working as a CFO prepare you to serve as the SEC’s Chief Accountant?
3. What was it like serving as the SEC’s Chief Accountant?
4. What was your role in drafting Sarbanes-Oxley?
5. What was it like working for Glass Lewis?
6. What are the things about the auditing profession that drive you the most crazy?
7. Does the PCAOB enforce its regulations sufficiently?
8. What are the aspects of teaching that you like the most?

Remember that these podcasts are also available on iTunes or Google Play (use the “My Podcasts” app on your iPhone and search for “Big Legal Minds”; you can subscribe to the feed so that any new podcast automatically downloads…

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Wes Bricker Named SEC’s Interim Chief Accountant

As noted in this press release, the SEC has tapped Wes Bricker to serve as the interim Chief Accountant. Jim Schnurr is recovering from a serious bike accident – so Wes was promoted from Deputy. Meanwhile, Deputy Chief Accountant Brian Croteau is leaving the SEC…

Conflict Minerals: Year Three Brings Better Reporting

This blog from Audit Analytics has some nifty charts – and these kinds of stats:

– By the May 31 deadline, 1,225 Forms SD were filed, representing a decline of about 4% from 2015 and 8% from 2014.
– In 2016, only 19 companies (about 1.8% of all Form SD filers) provided IPSAs. While this is a substantial increase relative to the four IPSAs filed in 2014, the number is still very low. Of the 19 companies to provide an IPSA, seven were “Conflict Free,” five were dual opinions, and seven were “Conflict Undeterminable.”

Broc Romanek

July 22, 2016

The High-Level “Commonsense Corporate Governance Principles”

The effort by 13 prominent business leaders – including Warren Buffett & Jamie Dimon – and large institutional investors to draw up a set of “Commonsense Corporate Governance Principles” is complete. Not an easy thing to do; getting folks to agree on anything these days. Some participants in the process dropped out along the way, including Fidelity and Wellington Asset Management.

As could be expected, most of the principles are high level – and address topics that have been commonsense (and mainstream) for quite some time (although a few of them are emerging ideas, like rotating committee chairs and lead directors – and some are controversial, like limiting dual-class voting). So the real news probably is what is missing from them – as those are the items that shareholders & management seem to still disagree about.

These memos summarize the principles (also see this blog). Here’s a statement from CII that welcomes the principles – but then goes on to note they should have gone further on shareholder rights. See this DealBook piece…and then there’s this “Idiot’s Guide to Mocking ‘Common Sense’“…

SEC Amends ALJ Rules

As noted in these memos posted in our “SEC Enforcement” Practice Area, with the SCOTUS portion of the ALJs saga behind us regarding the SEC’s use of administrative law judges for its enforcement proceedings, the SEC has adopted changes to its rules of practice for administrative proceedings last week. Here’s the intro from this blog by Steve Quinlivan:

The SEC has approved a final rule amending its rules of practice for administrative proceedings. The changes make incremental improvements but fall short of what is necessary to make the proceedings more fair. Among other things, the final rules would adjust the timing of administrative proceedings and give parties additional opportunities to take depositions of witnesses.

Davis Polk’s New Podcast Series! Linda Thomsen on “Directors as SEC Enforcement Targets”

I’m very excited to report that Davis Polk has joined my “Big Legal Minds” with their own podcast series devoted to governance topics! Their series is called “Before the Board” and available on iTunes or by RSS feed. Or it can be accessed on the firm’s site – the 1st episode is a 20-minute interview conducted by Joe Hall with Linda Chatman Thomsen (now with Davis Polk & former SEC Enforcement Chief) about recent trends in SEC enforcement actions involving directors. Awesome!

Broc Romanek

July 21, 2016

More on “Congress Being Congress: What Does “Defunding” a Rule Even Mean?”

Recently, I blogged about how it wasn’t clear what Congress would mean if it passed a budget bill that wouldn’t allow the SEC to conduct rulemaking or enforce certain rules. I indicated that the SEC hasn’t been faced with that type of law before. But I have since discovered that other federal agencies have – and that Congress has been playing this game with other agencies more often these days. For example, Congress recently limited the US Consumer Product Safety Commission’s ability to use appropriated funds to proceed with proposed rulemaking.

Without getting too far into the arcane details of federal appropriations law (for that, see this report), agencies are allowed to use appropriated funds only for “the objects for which the appropriations were made, except as otherwise provided by law.” There is a multi-part “purpose test” that is applied. If Congress makes a specific use of funds impermissible, then appropriated funds may not be spent for the prohibited purpose. The risk of spending appropriated funds in violation of Congressional limitations, among other things, is a possible “Antideficiency Act” violation, which must be reported to Congress and the President – and which could result in disciplinary action, civil and possible criminal penalties for the employees responsible for the violation.

An agency subject to this sort of limitation (if enacted and signed into law) must restrict its Staff from spending time on the prohibited activities. Just how far that agency has to go will depend on the exact language of the limitation. If drafted appropriately, the limitation could preclude a government employee from spending any type of time on the prohibited actions. In other words, Congress could prevent an agency’s staff from spending any time on implementation, enforcement or interpretation of a rule – even if that rule has been promulgated in final form (whether or not the effective date has arrived).

The bigger point is that this technique – which is quite controversial & has resulted in Presidential veto threats – is not unique to the SEC. And it’s increasingly being advocated by any number of special interest groups, depending on the agency and the substance. Hat tip to Stephanie Tsacoumis for her help sorting this out!

SEC’s Revolving Door: Will It End If Clinton Wins?

Here’s an excerpt from this MarketWatch article:

The reform-minded wing of the Democratic Party, led by Senator Elizabeth Warren, takes credit for pushing an affirmation of the classic political adage, “personnel is policy”, into the platform. The platform says it will nominate regulators who aren’t beholden to the industries they regulate, crack down on the revolving door between the private sector and Wall Street, and ban golden parachutes for those taking government jobs.

So does that spell a Wall Street-free administration if Hillary Clinton is elected? Maybe not. Former Commodity Futures Trading Commission chairman Gary Gensler, now the chief financial officer of the Hillary Clinton campaign, is frequently mentioned as a possible Treasury Secretary candidate in a Clinton administration despite being a former executive of Goldman Sachs GS.

Binding Say-on-Pay: Finally Coming to the UK?

You might recall that the concept of non-binding say-on-pay came from across the pond. The British had implemented say-on-pay a decade before the US. More recently, the UK has been close to adopting binding say-on-pay (see this blog that I wrote on CompensationStandards.com) – and even the European Commission proposed it a few years back.

In the wake of Brexit, it looks like the new UK Prime Minister Theresa May is seeking a number of governance reforms – as noted in this excerpt from the Glass Lewis blog:

On July 11 Theresa May launched her subsequently successful campaign to become leader of the Conservative Party and, by extension, Prime Minister of the UK, under the slogan “A country that works for everyone, not just the privileged few”. Having outlined her broader vision for the economy, Ms. May’s speech quickly turned to matters of corporate governance under the themes of “Putting people back in control” and “Getting tough on corporate irresponsibility”.

In detailing her priorities, Ms. May vowed to push for employee representatives on boards and to make shareholder votes on executive remuneration legally binding, moves which are likely intended to address growing inequality and perceived public distrust in the establishment, business and politicians.

Our Executive Pay Conferences: 10% Reduced Rate: We have posted the registration information for our popular conferences – “Tackling Your 2017 Compensation Disclosures: Proxy Disclosure Conference” & “Say-on-Pay Workshop: 13th Annual Executive Compensation Conference” – to be held October 24-25th in Houston and via Live Nationwide Video Webcast. Here are the agendas – 20 panels over two days.

Discounted Rates – Act by September 9th: Huge changes are afoot for executive compensation practices with pay ratio disclosures on the horizon. 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 September 9th to take advantage of the 10% discount.

Broc Romanek

July 20, 2016

Proxy Access: Rise in Binding Proposals Next Year?

This proxy season, a number of companies were successful in excluding proxy access shareholder proposals under Rule 14a-8(i)(10) – the “substantially implemented” exclusion – by adopting proxy access bylaws of their own. Proxy access proposals are typically considered substantially implemented if the ownership threshold and holding period match what is requested by the proposal, even though other aspects may differ (i.e. number of nominees, limits on number of shareholders in a group, etc.).

As noted in a blog by Steve Quinlivan, frequent proponent Jim McRitchie has suggested that companies that went this route should be prepared to receive binding proxy access proposals next year. In a lengthy post on his own blog, Jim said:

Entrenched boards and managers who think they have won by gaming the system with unworkable proxy access bylaws will find only temporary ‘relief’ from shareholder action by filing for an exemption under Staff’s newly defined definition of ‘substantial implementation.’ We will be back next year and every year after that if necessary. Binding bylaw resolutions are much more prescriptive than precatory proposals. Gaming the system is likely to come back to haunt you because your hands will be tied when those resolutions pass… and they will.

Whether these proposals will actually be successful is yet to be seen. Companies will fight much harder to keep out a binding bylaw proposal – and given the stakes, the Staff tends to be pickier when it comes to the language of binding proposals. If they do make it past the no-action process, it will be interesting to see whether these proposals can muster enough shareholder enthusiasm at companies that have already implemented proxy access on their own. Also see this blog by Davis Polk’s Ning Chiu…

Inline XBRL: First Filing Made with SEC

We have our pioneer! This blog by Steve Quinlivan explains how Lennar became the first company to make a filing with the SEC using inline XBRL…

Director Conflicts: How Might Personal Charitable Efforts Impinge on Board Duties?

This Fortune article entitled “Why Facebook Should Ask Peter Thiel to Resign from the Board” raises some interesting issues. Here’s an excerpt that gets to the heart of the matter:

Thiel has said that he considers the lawsuits he funded against Gawker to be an act of philanthropy. But any board member engaging in activities, including charitable efforts, that conflicts with the company’s business needs to exit. So, did Thiel inform Facebook’s board that he was secretly funding lawsuits against one of the social media firm’s clients and suppliers? Or did the board find out from a Facebook newsfeed? Peter Thiel and Facebook did not respond to requests seeking comment.

Then again, Facebook may not care very much about corporate governance. After all, it has one controlling shareholder in Mark Zuckerberg. It has granted fewer voting rights to one class of shares and plans to issue a new class of shares that have no voting power. (A shareholder suit has been filed related to the new class.) It has directors with past relationships, like those between Thiel and Marc Andreessen (PayPal). And the disclosures of directors’ backgrounds on its website are grossly out of date. (Just one example: Marc Andreessen left the eBay board in 2014.)

But when board members agree to serve on a corporate board, they are supposed to act as fiduciaries, putting the company first. That includes not engaging in activities that could harm the company’s business.

Susan Reilly & Broc Romanek

July 19, 2016

More on “5 Reasons Why I Hate the Proxy Season”

Following up on my blog about things to hate about the proxy season, a bunch of anonymous members sent in these things that they hate:

– Colleagues, executives & directors, who had no idea what it took to put the proxy statement together – and thought, gather a little information, make it look presentable and presto, the proxy statement is prepared in a couple of days, what’s the big deal.

– All those folks who complain about having to attend so many internal meetings to discuss the proxy statement and its content when I feel like a person with multiple personalities as I hold endless internal dialogues with myself about content, revisions, positioning, etc. with little to no meaningful internal input (unless you count directors sprucing up their bios). And then, I get to draft it all.

– Having no budget and no personnel & then having other companies create interactive proxy statements (where I am sure they did have a budget for external advisors or lots of internal folks) that are brought up as shining examples of what a proxy statement should look like.

– A gripe about director independence disclosures. Every company does them differently and every company thinks it complies with the rule. And explaining with a straight face why ISS thinks there’s an independence issue and will oppose the re-election of one of your directors because a member of the director’s extended family took an entry level job at a large, multinational professional services firm that the company paid $20K.

– I am in my tenth proxy rodeo here at “Large Corporation Named In My Contact Information.” This is the “Bad Colleague Moan and Groan.” At times like this, I would dearly love to bill by the hour. Along with the many status meetings and reviewing drafts – which I don’t really mind – I have to participate in too-numerous CD&A “drafting sessions” run by a non-lawyer who doesn’t grasp the meaning of the phrase. First of all, he is a pill. He is not a good colleague. His direct reports flee as soon as possible. He is not a good writer. But he “owns” the CD&A, so what can a nice lawyer do? I go. I give it the old college try. These sessions are not collaborative but rather, he tells us to tell him what to do write, so he can turn around take credit for the work put in by the rest of us. He argues over every suggestion. Won’t use commas. I am exhausted before we even begin. I might dress up as him for Halloween.

– Here are things I continue to dislike:

1 – Seasonality of it; so many proxies, in so little time
2 – Outsized and often arbitrary stress it generates for all concerned, and the effect that has on people
3 – Missing family time, being unable to respect commitments outside work and explaining to bemused friends “BECAUSE COMP COMMITTEE PRESENTATION TOMORROW”
4 – Being grossly out of shape for Spring sports
5 – 27# paper, red as a tint (pink!), fonts that don’t align in tables…

More on “5 Reasons Why I Love the Proxy Season”

Following up on my blog about things to love about the proxy season, an anonymous member wrote in some things he loves:

1. Responsibility & opportunity to work with smart people who get it on very high profile projects
2. Camaraderie; it takes “teamwork to make the dream work” and I enjoy being so engaged with clients and internal teams
3. Getting creative within tight boundaries
4. Contributing something tangible to a positive outcome
5. Copy & design that work together (because one without the other is like a meal with stale ingredients)

XOXO Doesn’t Mean “Hugs & Kisses”

Read all about email sign-offs & their true meaning in this hilarious New Yorker piece

Broc Romanek

July 18, 2016

Congress Being Congress: What Does “Defunding” a Rule Even Mean?

Before she wrote this interesting blog, Cydney Posner asked me what defunding a rule would actually mean? This relates to the games that the House GOP has played with its version of the budget bill that is necessary for federal agencies to regulate the markets – see my blog on that. Cydney’s blog identifies the provisions that would prevent the SEC from enforcing a host of rules – including a catch-all that would prevent the SEC from conducting any rulemaking at all until after the Inauguration (which arguably could include even providing interps on rules).

Anyway, Cydney asked a great question about what defunding actually means in practice. I inquired with a bunch of old-timers & confirmed that this likely is the first time that the SEC might be faced with such a ridiculous mandate (if it ever gets passed, which is unlikely at this time). Cydney’s blog poses all the right questions that the SEC – and those of us that have to comply with the SEC rules – would need to tackle. For example, do companies still need to comply with a rule that the SEC is prohibited from enforcing – even though the rule is still on the books? And I wonder how CEO/CFO certifications would hold up if a company did decide to flaunt a rule that can’t be enforced. The answer is “nobody knows”…

Meanwhile, the House Financial Service Committee held a hearing on the “Financial Choice Act” bill last week – here’s my blog about that bill…

The Rise of Third-Party Board Evaluations

As part of my “Big Legal Minds” podcast series – check out this 37-minute podcast, during which Kris Veaco & Cherie Sorokin of the Veaco Group explain the nuts & bolts of third-party board evaluations, including:

1. Why should boards be thinking about hiring a third-board evaluator?
2. What are the advantages of using third-parties over using internal personnel?
3. Who delivers the hard news if there is a poorly performing directors?
4. How are the results used?

Remember that these podcasts are also available on iTunes or Google Play (use the “My Podcasts” app on your iPhone and search for “Big Legal Minds”; you can subscribe to the feed so that any new podcast automatically downloads…

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Tomorrow’s Webcast: “How to Apply Legal Project Management to Deals”

Tune in tomorrow for the DealLawyers.com webcast – “How to Apply Legal Project Management to Deals” – to hear the experts who are on the ABA M&A Task Force for Legal Project Management – Haynes and Boone’s Bill Kleinman, QLex Consulting’s Aileen Leventon and Verrill Dana’s Dennis White – that created a new “Legal Project Management Guidebook” which contains a variety of new tools for deal lawyers – including the “Deal Issues Negotiating Tool” that you can use to identify key deal points. Please print out the “Course Materials” in advance (they’re also available in PowerPoint via a link near the top of this page).

Broc Romanek

July 15, 2016

Schedule 13G: Corp Fin Issues “HSR Passive Investment Exemption” CDI

Yesterday, Corp Fin issued a CDI – CDI 103.11 of the Regulation 13D-G CDIs – to clarify that just because someone is disqualified (due to efforts to influence management) from relying on HSR’s “passive investment” exemption doesn’t necessarily preclude that shareholder from being eligible to file a short-form Schedule 13G rather than the longer Schedule 13D. In other words, the HSR test is applied differently than the similar one for 13G/13D. The CDI notes that control intent – as analyzed through the relevant fact & circumstances – is key.

Before providing three examples of this analysis in operation, the CDI notes that the determination might hinge on the subject matter of the shareholder’s discussions with management – with the context in which the discussions occur being “highly relevant.”

Interestingly, this CDI came out on the same day that the DOJ – as noted in these memos posted on DealLawyers.com – announced a record fine of $11 million that ValueAct paid to settle allegations that it had violated the HSR’s “passive investment exemption”…

Model Business Corporation Act: Exposure Draft

Six years in the making, the ABA Corporate Laws Committee has published for comment an “Exposure Draft” of the 2016 Revision of the Model Business Corporation Act. This Revision represents the first top to bottom revision of the Act since publication of the Revised Model Business Corporation Act in over 30 years! Since 1984!

The Revised Act has served as the basis for the organic corporation law in more than 30 jurisdictions, with portions embedded in the corporation law in several others. The 2016 Revision represents a compilation of all of the amendments to the Act since 1984, including several adopted within the last three years following publication for comment in The Business Lawyer, as well as a thorough review and revision of the Act and its Official Comment. The 2016 Revision also incorporates the basic terminology and concepts contained in the Uniform Business Organizations Code, adopted by the Uniform Law Commission in 2011.

Comments are encouraged & must be delivered to Corporate Laws Committee Chair Karl Ege before August 15th…

More Indictments In Proxy Solicitor/ISS Bribery Scandal

This Reuters article provides news about the latest in the bribery scandal between a former ISS staffer and current & former members of Georgeson, a proxy solicitor. The former ISS staffer – the seller of the information – was sentenced a while back. Also see this WSJ article

Broc Romanek