On Monday, the US Supreme Court heard oral arguments in Matrixx Initiatives v. Siracusano (No. 09-1156) – here is the transcript and here are the briefs – the important securities fraud case dealing with whether a company was required to disclose reports of adverse events following the use of its cold remedy product even though the reports are not alleged by the plaintiffs to have been statistically significant. Even though the issue presented is somewhat limited, it is rare that SCOTUS considers a “materiality” case – one of the hardest judgments for corporate lawyers and their business clients to make. The Court isn’t likely to issue an opinion until the Spring.
Tune in on Tuesday for the CompensationStandards.com webcast – “The Proxy Solicitors Speak on Say-on-Pay” – to hear Art Crozier of Innisfree M&A, David Drake of Georgeson, Ed Hauder of ExeQuity and Reid Pearson of Alliance Advisors discuss solicitation and engagement strategies to help educate shareholders about a company’s compensation programs in light of mandatory say-on-pay.
As all CompensationStandards.com memberships expired at the end of the year, please renew if you haven’t yet to catch this program. If not yet a member, try a no-risk trial now.
Poll: When Will the SEC Adopt Say-on-Pay Rules?
During yesterday’s webcast (audio archive available), the panel had a spirited debate – pure conjecture, mind you – about when the SEC will adopt final say-on-pay rules. You may recall that Section 951 of Dodd-Frank applies mandatory say-on-pay to all shareholder meetings held on or after January 21st – regardless if the SEC adopts final rules.
Please participate in this anonymous poll regarding your guess as to when the SEC will act on final rules:
Last week, the SEC released its “Select SEC and Market Data” for fiscal 2010, which contains all sorts of Enforcement statistics. It’s been more important than ever before for the SEC to tout its accomplishments in the wake of recent pressure from Congress and widespread negative media coverage. Interestingly, studies like this recent one from NERA notes a drop in the number of SEC Enforcement actions against accountants and auditors (and financial fraud). Perhaps stronger internal controls dictated by Sarbanes-Oxley have reduced the likelihood of financial fraud being committed.
The SEC recently announced its first use of a non-prosecution agreement, one of the new investigative tools that the agency unveiled nearly a year ago. The SEC simultaneously filed an enforcement action against a former sales executive of Carter’s, Inc. See SEC v. Elles, Civ. Action No. 1:10-CV-4118 (N.D. Ga.). The Commission did not bring any enforcement action against the company.
At first blush, this appears to be the sort of case in which the SEC historically would likely have brought charges against a public company. According to the complaint, the executive granted and concealed substantial unauthorized discounts to the company’s largest customer. By misrepresenting the facts and creating false documents, the executive allegedly caused the company to delay recognizing these discounts until later periods, thereby inflating the company’s reported earnings in the earlier periods. When the company discovered the scheme, it conducted an internal investigation, self-reported the matter to the SEC and ultimately restated its financial statements covering a five-year period.
In explaining the decision to accept a non-prosecution agreement rather than bring an enforcement action against the company, the SEC identified the following factors: (1) the “relatively isolated nature” of the unlawful conduct; (2) the company’s “prompt and complete” self-reporting of the misconduct to the SEC; and (3) the company’s “exemplary and extensive” cooperation in the inquiry, including undertaking a “thorough and comprehensive” internal investigation.
The isolated nature of the conduct was likely a significant factor in the SEC’s determination to use this case to demonstrate its willingness in some cases to address a company’s responsibility for the misconduct of a corporate employee through a non-prosecution agreement. The SEC has not asserted that the company’s most senior management or the accounting function had any complicity in the alleged misconduct. While the sales executive had a significant management position, he allegedly acted alone, misled other members of management and pocketed $4.7 million from sales of stock before the company discovered his misconduct.
The SEC has also publicly released its non-prosecution agreement with the company. While the agreement requires the company to continue to cooperate with the SEC, it does not require any waiver of attorney-client privilege – although it appears that the company has in some manner shared the results of its internal investigation with the SEC. In the event that the SEC Enforcement Staff determines that the company has failed to comply with any of its obligations under the agreement (such as the obligation to cooperate), the Staff may then proceed with an enforcement recommendation to the Commission.
The SEC’s willingness to resolve this case without an enforcement action against the company is an encouraging first step. The SEC should demonstrate in future cases that this form of resolution is also available in scenarios in which it is not possible to isolate the misconduct to a single culpable individual. The policy rationale for such an outcome is equally strong where multiple employees have involvement, but the company had reasonable controls and an appropriate compliance culture in place, responded promptly to indications of wrongdoing and cooperated with the SEC’s investigation.
House Bill: Two-Year Moratorium on New Regulations
On Monday, I blogged about a House bill that seeks to repeal Dodd-Frank in its entirety. Now, here comes news from CQ Today Online News, an excerpt of which is below:
A senior Republican House member unveiled legislation Jan. 10 designed to slow down the pace of federal rulemaking, adding to the growing GOP and industry calls for Congress to reassert authority over executive branch agencies. Don Young of Alaska offered a pair of bills (HR 213, HR 214) that would impose a two-year moratorium on new regulations, while creating a congressional office to review federal rules. “With the abundance of regulations already coming from legislation such as the health care bill and the inevitability of thousands more this year, it is incredibly important that we do this review sooner rather than later,” Young said in a statement.
Young’s legislation would not apply to proposals necessary to address imminent health or safety threats or for criminal enforcement matters. It also would exempt actions related to defense, foreign policy or trade agreements. The proposed new Congressional Office of Regulatory Analysis would conduct cost-benefit analyses of major regulations with an annual implementation cost of more than $100 million. Additionally, it would require agencies to periodically review regulations to consider if changes are needed, while establishing a process to “sunset” rules.
We have posted the results from our recent survey regarding Rule 10b5-1 plan practices, repeated below:
1. Does your company require insiders to sell shares only pursuant to a Rule 10b5-1 trading plan?
– Yes, insiders are required to use Rule 10b5-1 plans in order to sell shares – 3.9%
– No, but they are strongly encouraged – 30.8%
– No, and they are not explicitly encouraged – 65.4%
– Not sure, it hasn’t come up – 0%
2. Does your company review and approve each insider’s Rule 10b5-1 trading plan?
– Yes, it is subject to prior review and approval by the company pursuant to the insider trading policy – 78.9%
– Yes, but only the template plan is reviewed and not the actual trading schedule – 13.5%
– No, but we have a broker that we require to be used and have reviewed that brokers template – 0%
– No, and there is no requirement to go through a specific broker – 7.7%
3. Does your company allow sales of shares through Rule 10b5-1 trading plans during blackout periods?
– Yes – 84.6%
– No – 5.8%
– Not sure, it hasn’t come up – 9.6%
4. Does your company require a waiting period between execution of Rule 10b5-1 trading plans and time of first sale?
– Yes, it is a two week waiting period or less – 13.5%
– Yes, it is a one month waiting period (or close to it) – 23.1%
– Yes, it is a two month waiting period (or close to it) – 5.8%
– Yes, it is a waiting period until the next open window – 11.5%
– No – 36.5%
– Not sure, it hasn’t come up – 9.6%
5. Does your company allow insiders to voluntarily terminate a Rule 10b5-1 plan?
– Yes – 74.5%
– No, only terminations dictated by the trading plan are allowed – 25.5%
6. Does your company make public disclosure of the insiders’ Rule 10b5-1 trading plans?
– Yes, but only for directors and/or one or more officers – 30.8%
– Yes, for all directors and employees – 3.9%
– No – 65.9%
7. If your company makes public disclosure, how does it do it?
– Form 8-K – 55.0%
– Press release – 5.0%
– Website posting – 0%
– Combination of above – 15.0%
– Other – 25.0%
Webcast: How to Implement Dodd-Frank for This Proxy Season
Tune in tomorrow for the webcast – “How to Implement Dodd-Frank for This Proxy Season” – to hear Ning Chiu of Davis Polk, Howard Dicker of Weil Gotshal, Marty Dunn of O’Melveny & Myers, Amy Goodman of Gibson Dunn and Dave Lynn of TheCorporateCounsel.net and Morrison & Foerster discuss how to implement the SEC’s new rules regarding proxy access as well as all the Dodd-Frank changes (note there is a companion CompensationStandards.com January 26th webcast to cover how to handle the new executive compensation requirements).
As all memberships expired at the end of the year, please renew if you haven’t yet to catch this program. If not yet a member, try a no-risk trial now.
GAO Report: US Government Has Material Internal Control Weaknesses
As noted in this press release, the GAO can’t render an opinion on the US Government’s financials because of material internal control weaknesses and other serious fiscal mismanagement issues.
In the Dodd-Frank.com Blog, Steve Quinlivan of Leonard, Street & Deinard notes that the SEC has delivered its first “supervisory controls” report required under Section 961 of Dodd-Frank to the Senate Banking Committee.
I held off on blogging about the Facebook situation for some time as I was afraid that I would never stop blogging about it. And now I have three entries in a week on the topic (see the last one and the first one). There continues to be a number of interesting articles written about it, including:
Webcast: Towards State of the Art: Scrubbing Your Bylaws, Governance Guidelines & Committee Charters
Tune in tomorrow for the webcast – “Towards State of the Art: Scrubbing Your Bylaws, Governance Guidelines & Committee Charters” – to hear Chris Butner of Chevron Corporation, Bob Messineo of Weil Gotshal, Beth Ising of Gibson Dunn and Rachelle Silverberg of Wachtell, Lipton discuss the latest developments in updating your company’s bylaws, committee charters and corporate governance guidelines, as well as the pros and cons of the various alternatives.
As all memberships expired at the end of the year, please renew if you haven’t yet to catch this program. If not yet a member, try a no-risk trial now.
Recently, we have added sample bylaw provisions in a variety of areas to our “Bylaw” Practice Area. Check it out!
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:
– KPMG’s “2010 International Audit Committee Survey”
– Rumor Has It: The Art of Managing Speculation
– All I Really Need to Know I Learned Reading Escott v. BarChris in Securities Regulation
– In the Spotlight: Reg FD
– Why Non-Executive Chairmen Keep Running Into Trouble
Last week, Michele Bachmann (R-Minn.) and 4 Republican co-sponsors introduced a bill entitled “to repeal the Dodd-Frank Wall Street Reform and Consumer Protection Act” (here is a related article). Here is analysis of why this may have been introduced and this article weighs its chances of being enacted.
Meanwhile, Rep. Darrell Issa (R-Ca.) – the new House Government Oversight Committee Chair – sent this letter to 150-plus trade associations, companies and think tanks asking them to identify burdensome laws and regulations, which eventually could form the basis for committee hearings, etc.
PCAOB Gets Three New Board Members Including Chair Jim Doty
On Friday, after a lengthy delay, the SEC appointed three new members of the PCAOB Board – that is 3 out of the 5 seats appointed in one fell swoop! Jim Doty was appointed as Chair (here is a recent interview with Jim) – and Jay Hanson and Lewis Ferguson were appointed to the Board. Jim is a lawyer and served as the SEC’s General Counsel from ’90-’92. Lew also is a lawyer and formerly was the PCAOB’s first General Counsel before going to a law firm. Jay is an accountant, leaving McGladrey & Pullen as National Director.
Bill Gradison and Charley Niemeier – two of the founding Board Members – finally retire from the Board and Acting Chair Dan Goelzer remains on the Board as a regular Member. Here is an article analyzing the appointments. And yes, the PCAOB – the regulator of audits – has three out of five Members that are lawyers – and yes, a Republican has been appointed Chair of a regulator during a Democratic Administration…
Happy Retirement John Heine
I’m torn to hear that John Heine has retired from the SEC’s Office of Public Affairs after 35 years of service. I first met John during my second tour of duty at the SEC in the mid-90s and he quickly proved one of the nicest and helpful Staffers I have ever come across. I’m sure that journalists from all over the country feel the same way. Sad for us, happy for him…
Mailed: November-December Issue of The Corporate Counsel
The November-December Issue of The Corporate Counsel includes pieces on:
– The Smaller Reporting Companies Phenomenon
– Becoming an SRC
– Scaled Disclosure
– FASB’s FAS 5 Disclosure Enhancements On Hold, But Not Necessarily Status Quo for 2010 Audits
– Convergence Will Not Obsolete FASB
– Earnings Dissemination–Staff Update
– S-3 Waiver Requests–A Kinder, Gentler Staff?
– The Compensation Risk Proxy Disclosure–Our Review of Comment Correspondence
– 10-K Items
– Shareholder Proposals
Act Now: Get this issue rushed to you by trying a “No-Risk Trial today. And since all subscriptions ended at close of 2010, renew now for 2011 if you haven’t already.
I blogged this yesterday on CompensationStandards.com’s “The Advisors Blog“: Earlier this week, I conducted my own informal poll on TheCorporateCounsel.net Blog regarding what say-when-on-pay recommendations companies will choose for this proxy season. The results fell in line with what I predicted – “annual” was the most popular despite the limited experience of companies filing proxies so far mostly going with triennial. My poll results came in at: 50% annual; 4% biennial; 33% triennial; 4% no recommendation. Compare that with the 71 companies who had filed proxies by the end of the year: 11% annual; 24% biennial; 55% triennial and 10% no recommendation.
On Wednesday, Towers Watson released its own poll results on this topic – and I’m happy to say that the results are quite similar to my own poll results. Here is an excerpt from their press release:
Conducted in mid-December, the Towers Watson poll of 135 U.S. publicly traded companies found that 51% of respondents expect to hold annual say-on-pay votes, while 39% prefer the vote be held every three years, and 10% anticipate holding biennial votes. The poll, however, found companies have a range of reasons for favoring a particular voting frequency. Four in 10 respondents cited accountability to shareholders and a desire to minimize administrative burdens as factors having the greatest influence on their vote-frequency recommendation, while slightly fewer cited shareholder preferences, proxy advisor policies and providing shareholders with an avenue to express concern about executive pay without casting negative votes on other matters as key factors.
“Clearly, there’s no single right answer to the question of how frequently these votes should be conducted that will work for every company,” said Towers Watson senior consultant James Kroll. “Each company seems to be assessing its own circumstances and needs, taking into account its specific shareholder composition and the degree of potential shareholder concern about the company’s executive pay programs.”
The survey also found that nearly half (48%) of surveyed companies are making some adjustments to their executive pay-setting process in preparing for the upcoming proxy season, although many companies have already strengthened their processes in recent years in light of growing shareholder activism and intensifying scrutiny of pay issues. Among those making further changes in preparation for the 2011 proxy season, 65% are devoting more attention to explaining their programs in the Compensation Discussion & Analysis (CD&A), 41% are performing additional analyses on the link between their executives’ pay and company performance, and 30% have made or are considering changes to programs such as severance, change-in-control benefits and perquisites that have high visibility.
Somewhat surprisingly, almost half (49%) of the respondents don’t know what level of favorable shareholder say-on-pay votes will be considered a successful outcome by their boards, and only 8% of the respondents have a process in place for analyzing the results of the vote and developing appropriate action plans in response to potential shareholder concerns. Of those companies that have defined how they will evaluate success, most believe that a favorable shareholder vote of at least 80% would be considered successful.
More on “The Facebook and Goldman Saga: All About Section 12(g) and Section 12(h) Applications”
Yesterday, I finally blogged about the rumors of the SEC investigating secondary markets for private companies and the flare-up over Goldman Sachs creating a special purpose vehicle to allow certain investors to invest in Facebook. As I noted, there was a lot of speculation over whether Facebook should be registering its stock under the ’34 Act despite getting Section 12(h) exemptive relief from Corp Fin back in 2008.
Late in the day yesterday, the WSJ ran this article about Facebook including disclosure in a recent private placement offering memo that states that the company intends to surpass 500 shareholders during 2011. Here is an excerpt from the article: “Some investors have wondered whether the arrangement with Goldman was designed to avoid such disclosures. The document makes clear that isn’t the case, and that Facebook will likely be a publicly traded company in 2012.”
A member sent along this petition for rulemaking sent to the SEC in 2003 that recommends that the SEC create a “Beneficial Owner’s Rule” that would change the definition of “held of record” to include beneficial owners holding the security in “street name.”
Poll: What Did Santa Bring? Corporate Flavored Candy?
One member recently bemoaned that for Christmas, his wife gave him a copy of the new book “Ferdinand Pecora, the Hellhound of Wall Street” and he wondered if other corporate types received similar tokens of affection. Please take a moment for this anonymous poll:
Last month, I blogged that I was “wow’ed” that Corp Fin had allowed the exclusion of a golden parachute shareholder proposal. Since then, I’ve been surprised that my blog is the only piece of writing I’ve seen about that development since I considered it significant.
But apparently folks were tracking it because I got a flood of emails yesterday when Corp Fin reversed course and issued this no-action letter noting that it had reconsidered its position and decided to not allow the exclusion at Navistar. Although the incoming letter is addressed to the SEC’s Secretary, it appears that this reconsideration was made at the Staff level and not at the Commission level (the incoming letter doesn’t “cc” the Commissioners), although it is possible that one or more Commissioners influenced Corp Fin. Rule 14a-8 reconsiderations at any level at the SEC are rare – but as this development proves, they do happen.
Note that we have added shareholder proposals as a topic for next Wednesday’s webcast – “How to Implement Dodd-Frank for This Proxy Season” – so tune in to hear more about this development and others in the Rule 14a-8 area. As all memberships expired at the end of the year, please renew if you haven’t yet to catch this program. If not yet a member, try a no-risk trial now.
The Facebook and Goldman Saga: All About Section 12(g) and Section 12(h) Applications
For securities law geeks, the outpouring of interest in the nuances of when companies are required to register their securities under Section 12(g) of the ’34 Act – and whether Facebook has violated the terms of the exemptive relief granted from Corp Fin back in 2008 – surely is big fun. Back when I served in Corp Fin’s Office of Chief Counsel in the mid-90s, I handled the Division’s Section 12(h) exemptive requests so it has been fun for me (not that there are many; I had never heard of them when I was “asked” to take them on). These requests are fairly technical in nature and require much analysis.
Anyways, I started dabbling in using Quora over the break to check it out and answered a few queries on the ability of new exchanges to trade shares in private companies (eg. SecondMarket, Sharespost and more) because there was so much misinformation out there (eg. that the SEC was “forcing” Facebook to conduct an IPO). And now we have the news about Goldman Sach’s offer to certain clients to invest in Facebook. Rather than repeat my answers from Quora (you can “follow me” there), I share related stories from others:
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:
– SEC Proposes Rules to Increase Oversight of Private Fund Advisers
– His Lips Are Moving: Deception During Conference Calls
– SEC and DOJ Announce Resolutions of FCPA “Industry Sweep”
– European Union Agrees to Economic Governance Changes
– SEC Enhances Centralization of Tip Gathering and Analysis Functions
In this podcast, Dave Lynn and Marty Dunn engage in a lively discussion of the latest developments in securities laws, corporate governance, and pop culture. Topics include:
– Dealing with gifts under Rule 144
– Gifts and insider trading concerns
– The Best Debut Album after “Meet the Beatles”
SEC Approves PCAOB’s Risk Assessment Rules: Eight New Auditing Standards Created
Right before Christmas, the SEC issued this order approving the PCAOB’s rules regarding auditor’s assessment of – and response to – risk. The PCAOB had proposed these rules back in September and results in eight new auditing standards – Auditing Standards #8-15 – replacing six interim standards. In one fell swoop, the PCAOB has more than doubled the number of its standards. The PCAOB’s new rules are effective for audits of fiscal years beginning on or after December 15, 2010.
SEC Approves the PCOAB’s 2011 Budget and Accounting Support Fee
Over the break, not only did Congress finally approve the SEC’s budget, but the SEC approved the PCAOB’s annual budget and accounting support fee. As Dodd-Frank provides the PCAOB with the authority to oversee auditors of brokers – and allocate its support fee among both brokers and issuers now – this year’s budget and support fee reflect these changes. As noted in this PCAOB press release, the 2011 budget is $204.4 million, which is $21.1 million (or 11.5%) above last year’s budget.
On CompensationStandards.com, I just posted the Winter 2011 issue of our Compensation Standards newsletter that contains practical guidance, which supplements what I wrote in our “Say-on-Pay Solicitation Playbook” this past summer. The Winter issue covers these topics:
– Say-on-Pay: Five Steps to Maximize Your Shareholder Engagement Efforts
– Say-on-Pay Preparation: Six Other Actions to Consider
– Say-on-Pay Frequency: What Recommendation Should Management Make?
– Say-on-Pay Frequency: Does Management Need to Make a Recommendation?
– Say-on-Pay Frequency: Keep Tabs on How It Works in Practice
– A Future Regulatory Fix? Acquiring Executives Not Subject to Golden Parachute Vote
A few weeks ago, ISS issued a set of 2011 US Compensation Policy FAQs. There are four FAQs regarding say-on-pay vote frequency, nine on problematic pay practices and four on golden parachute votes.
Poll: Say-When-on-Pay Recommendations
In his “Proxy Disclosure Blog,” Mark Borges gives us the latest say-when-on-pay stats – with 71 companies filing so far, 55% recommend a triennial vote; 24% recommend a biennial; 11% recommend an annual and 10% make no recommendation.
Despite this early indication that triennial will be the most popular recommendation, there are those that think that annual will come out on top by the end of the day (including me for the reasons that I set forth in the Winter 2011 issue of the Compensation Standards newsletter). Take a moment and participate in this anonymous poll:
Cary Klafter of Intel quickly responded by sharing what I imagine has to be the world’s largest holiday disclaimer, running for 8 pages – so long that I don’t dare repeat it verbatim in this blog – rather I posted it as a PDF. But here is a small excerpt from the opening so you can get a taste:
Please accept, with no obligation, implied or implicit, the best wishes of the Corporate Legal Group (sometimes hereinafter referred to as the “wisher” or “us” or “publisher” or however else we refer to ourselves in this document in our complete and unfettered discretion) for an environmentally conscious, socially responsible, low stress, non-addictive, gender and gender-identity neutral, celebration of the winter solstice holiday, practiced within the most enjoyable traditions of the religious persuasion of your choice, or secular practices of your choice, with respect for the religious/secular persuasions and/or traditions of others, or their choice not to practice religious or secular traditions at all . . . . . and a fiscally successful, personally fulfilling, and medically uncomplicated recognition of the onset of the generally accepted calendar year 2011, but not without due respect for the calendars of choice of other cultures whose contributions to society have helped make America great, (not to imply that America is necessarily greater than any other country or is the only “America” in the western hemisphere or that there are not other hemispheres of equal dignity), and without regard to the race, creed, color, age, physical ability, religious faith, or sexual preference or identity of the wishee (or lack thereof with regards to any or all of such, or other, factors) (and further not to imply that the winter solstice should be considered a holiday for those afflicted, through no fault of their own, with some form of psychological or physical depression occasioned by the natural reduction of sunlight or increase in precipitation due to seasonal factors (or increase/reduction for those in the so-called Southern Hemisphere)). (Note: based on some news stories we are modestly concerned about the Mayan calendar since it apparently predicts the End Of Time (EOT) in 2012, unless inappropriately interpreted by non-Mayan so-called “scholars”, but we disclaim any responsibility for the EOT and as a matter of public policy we do not advocate the EOT).
And here is another funny electronic holiday card, courtesy of Shareholder Representative Services…
Europe’s Answer to Dodd-Frank? The MiFID Review Affects Almost Everyone
As noted in these memos posted in our “European Law” Practice Area, the European Commission published proposals for revision of the Markets in Financial Instruments Directive (“MiFID”) last month. The comment period is open until February 2nd and the Commission is scheduled to publish its final proposals, including legislative text, in the spring (probably in mid-May).
Our January Eminders is Posted!
We have posted the January issue of our complimentary monthly email newsletter. Sign up today to receive it by simply inputting your email address!
To start off the New Year right, remember this Seinfeld gem…