E-Minders August 2021


In This Issue:

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

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Register Now! Our "Proxy Disclosure & Executive Compensation Conferences" Now's the time to register for our "Proxy Disclosure" & "Executive Compensation Conferences" - which will be held virtually October 13th - 15th. We're excited to offer a format that can be either "live & interactive" or "on-demand" (your choice! or do both!) - to deliver candid & practical guidance, direct from the experts.

These Conferences will help you tackle ESG & executive pay issues that will be essential to your proxy disclosures and engagements. Check out the agendas - 17 panels over three days.

Anyone who subscribes to one of our sites will get a special "member discount" when they register for these Conferences (both of the Conferences are bundled together with a single price). Register online or by mail/e-mail today to make sure that you'll have access to all of the latest guidance.

It's Here! 2022 Edition of "In-House Essentials Treatise": Liz Dunshee & Lynn Jokela have wrapped up the 2022 Edition of the definitive guidance on securities law for the in-house lawyer: "In-House Essentials Treatise." It's here and is available now. With over 2000 pages - spanning 22 chapters - you will need this practical guidance for the challenges ahead. Here's the "Detailed Table of Contents" listing the topics so you can get a sense of the Treatise's practical nature. Order on TheCorporateCounsel.net so that you can receive this essential resource hot off the press!

It's Here! New Edition of "Practical Corporate Governance Treatise": The latest edition of our "Practical Corporate Governance Treatise" is here. With nearly 1700 pages of well-organized guidance - in the form of over 300 checklists - this is an essential resource for in-house and outside counsel alike. Order today on TheCorporateCounsel.net to get your copy now!

Our Enhanced "In-House Accelerator": If you're relatively new to being in-house - or you want to improve your client work by gaining that perspective - take advantage of our "In-House Accelerator." We're now offering an enhanced version as an add-on exclusively to members of TheCorporateCounsel.net, which makes practical guidance from across the site accessible - all in one place. This training consists of 221 FAQs from our "In-House Accelerator" paperback (here's the "Table of Contents") - which you can either read online or listen to via our podcast series. Then, test your knowledge with our quizzes!

"Deal Tales" - A Three Volume Set! Education by entertainment! This "Deal Tales" series of three paperback books teaches the kind of things that you won't learn at conferences, nor in treatises or firm memos. Here's the "Table of Contents" for each volume rolled into one. With the set containing over 600 pages, John Jenkins - a 30-year vet of the deal world - brings his humorous M&A stories to bear. Order "Deal Tales" today!

Upcoming Webcasts on TheCorporateCounsel.net: Join us on August 25th for the webcast - "Newly Public: Building Reporting & Governance Functions" - to hear David Bell of Fenwick, Jared Brandman of National Vision, Courtney Kamlet of Vontier and Trâm Phi of DocuSign discuss lessons learned from their experience successfully managing the process of going through the IPO and creating processes from scratch.

And join us on September 16th for the webcast - "MD&A and Financial Disclosures: What To Do Now" - to hear Sonia Barros of Sidley Austin, Raquel Fox of Skadden Arps, Mark Kronforst of Ernst & Young, Dave Lynn of Morrison & Foerster and TheCorporateCounsel.net and Lona Nallengara of Shearman & Sterling discuss the SEC's new MD&A and financial disclosure rules adopted late last year and items for consideration as you update your disclosures.

And join us on October 28th for the webcast - "Investment Stewardship: Understanding the 'New Era' of Expectations and Engagement" - to hear T. Rowe Price's Donna Anderson, Davis Polk's Ning Chiu, BlackRock's Michelle Edkins and Vanguard's Adrienne Monley take stock of how "investment stewardship" has changed...and how it's stayed the same. This program will help you understand how stewardship teams are operating these days - and what that means for your board, your engagements, and your voting outcomes.

We will apply for CLE credit in all applicable states for these 1-hour webcasts. You must submit your state and license number prior to or during the program, which you can do by visiting the landing page for the program(s) you plan to attend. Attendees must participate in the live webcast and fully complete all the CLE credit survey links during the program. You will receive a CLE certificate from our CLE provider when your state issues approval; typically within 30 days of the webcast. All credits are pending state approval.

There is no cost for these webcasts if you are a member of TheCorporateCounsel.net. If you are not a member, sign up online, send us an email at info@ccrcorp.com - or call us at 800.737.1271.


Record-Setting IPO Activity: Turning Our Frowns Upside Down!

Robinhood - the app that set retail stock trading on fire - is itself going public this week. Here's the Form S-1, which says that the company plans to sell up to one-third of its IPO shares directly through its app. The deal is getting a lot of press - and this Nasdaq article says it's just one of 17 IPOs on the ticket for this week. This week's activity isn't unusual, either. Including SPAC shells, there were 1,070 IPOs during the first half of this year. 1,070!

With the IPO market remaining hot for about a year now - and, as John recently blogged, the SPAC assembly line cranking back up - is it safe to say that the decades-long trend of declining public companies is reversing? As of the end of last year, the number of public companies had already climbed modestly - and this EY memo elaborates on encouraging stats from the first half of 2021:

– The first half of 2021 (1H 2021) saw 1,070 IPOs with total proceeds of US$222b. Globally, deal numbers increased 150% year-on-year (YOY), while proceeds rose by 215%. Strong performance between January and April plus June, pushed 1H IPO deal numbers and proceeds to their highest levels in 20 years. 1H 2021 deal numbers were 18% higher and proceeds were 71% higher compared with the former record of 1H 2007 (908 IPOs, raising US$129.8b).

– Equity markets, buoyant from positive corporate results and growth forecasts on gradual economic recovery, and market liquidity have hit new heights and provided favorable conditions for the IPO mark.

– Q2 2021 IPO deal numbers and proceeds were 597 IPOs and US$111.6b, respectively. Q2 2021 was the most active second quarter by deal numbers and proceeds in the last 20 years, and beat previous records in Q2 2007 (522 IPOs raising US$87.7b).

– Q2 2021 was 206% and 166% higher, respectively, by deal numbers and proceeds compared with Q2 2020.

– A healthy pipeline of unicorns, which are set to make their way to public markets in 2H 2021, should help to ensure a busy Q3 when the traditional holiday periods will still be affected by the travel restrictions in many countries. And despite the slowdown in SPAC IPOs in Q2 2021, companies can now realistically assess the different ways of coming to the capital market, adding SPAC mergers and direct listings into their traditional IPO considerations.

The memo says plenty of industries are "winners" in this frothy market - tech, healthcare & industrials, materials, companies that benefit from lockdowns…and also those expecting a payday when things open back up. The jury is out on whether it's a bubble, but it's worth enjoying the moment.

If you're newly public - or advising IPO companies - don't miss our August 25th webcast, "Newly Public: Building Reporting & Governance Functions." Hear David Bell of Fenwick, Jared Brandman of National Vision, Courtney Kamlet of Vontier and Trâm Phi of DocuSign discuss lessons learned from their experience successfully managing the process of going through the IPO and creating processes from scratch.


SPACs: Down But Not Out

According to this excerpt from EY's Global IPO Trends Report, despite the slowdown in SPAC IPOs due to the recent regulatory unpleasantness, there are plenty more deals to come:

– While SPAC formation frenzy has slowed from record levels, the lull caused by the SEC guidance is behind us and deals are being announced daily. SPAC activity is expected to remain steady over the next couple of months, picking up speed in Q3 2021 and toward the end of the year.

– There are nearly 300 SPACs on file that have not yet priced; indicating there are SPACs that are rushing to find suitable targets. High-quality target companies could have stronger bargaining power that will enable them to secure more favorable terms.

– With more scrutiny from the SEC, along with improved aftermarket performance, we can expect more quality SPAC deals being announced and executed, which is good news for investors.

More quality SPAC deals may be good news for investors, but we bet short sellers are still licking their chops at the prospect of the SPAC assembly line cranking up again.


IPOs: Lockups Ain't What They Used to Be

Lockup agreements prohibiting insiders from selling for 180 days or more after an offering have long been a customary part of the IPO process. In mid-July, the WSJ published an article pointing out that the terms of its lockup arrangements were among some of the unusual features of Robinhood's proposed IPO:

When Robinhood shares start trading at the end of this month, employees will be able to sell 15% of their holdings immediately, rather than after the traditional six-month lockup period, according to a regulatory filing. Three months later, they can sell another 15%. In the past 12 months, several companies have experimented with looser lockups. In September, data-warehousing company Snowflake Inc. said employees could sell as much as 25% of their vested stock after roughly three months. Then Airbnb Inc. said it would allow employees to sell up to 15% of their shares in the first seven trading days.

This Foley & Lardner blog notes that although the traditional 180 day lockup is still the standard, there is a clear trend toward companies structuring lockup periods with different durations for different parties. But the blog also points out that the trend toward looser lockups hasn't extended to SPAC IPOs, which have accounted for the greatest share of IPO volume in recent periods. SPAC deals continue to customarily include lockups of a year or more.


Enforcement: SEC Casts a Wide Net in Landmark SPAC Proceeding

We've known for some time that the SEC's Division of Enforcement has been taking a hard look at SPAC deals, and in mid-July it announced an enforcement action against, well, EVERYBODY involved in an allegedly fraudulent SPAC transaction. This excerpt from the SEC's press release gives you a sense for how widely the Division of Enforcement cast its net:

The Securities and Exchange Commission today announced charges against special purpose acquisition corporation Stable Road Acquisition Company, its sponsor SRC-NI, its CEO Brian Kabot, the SPAC's proposed merger target Momentus Inc., and Momentus's founder and former CEO Mikhail Kokorich for misleading claims about Momentus's technology and about national security risks associated with Kokorich.

The SPAC, the sponsor, the target & both CEOs - that's quite a haul! Apparently Momentus's former CEO is continuing to litigate the charges against him, but the other defendants settled with the SEC. Under the terms of the SEC's order, each of the settling defendants agreed to cease and desist from violations of certain antifraud provisions of the federal securities laws and to pay civil monetary penalties aggregating $8 million.

But that's not all. Momentus and the other parties agreed to a number of undertakings. These include establishing an independent board committee to police compliance with the SEC's order, retaining an independent consultant to review Momentus's disclosure controls and implementing changes recommended by that consultant. The order also calls for the parties to offer rescission to PIPE investors, and for the sponsor to forego 250,000 founders shares.

Although the misleading claims at issue were initially made by the target, the SEC found fault with the due diligence investigation conducted by the SPAC and its CEO, which led to the filing of inaccurate registration statements and proxy solicitations.


SEC Enforcement: Early Returns From the "New Regime"

We're 6 months in to the Biden regime - and even though Gurbir Grewal just officially joined the Commission as the Director of the Division of Enforcement in late July, it's been quite a year already. And every indication is that more scrutiny is expected going forward. This 21-page Gibson Dunn memo recaps trends & significant cases in the first half of the year. Here are some of the biggies:

  1. Climate & ESG Task Force - charged with developing initiatives to identify ESG-related misconduct and analyzing data to identify potential violations. Additionally, the task force aims to identify misstatements in issuers' disclosure of climate risks and to analyze disclosure and compliance issues related to ESG stakeholders and investors.

  2. SPACs - A string of pronouncements in the spring was followed by announcement of the first enforcement action earlier this month.

  3. Cybersecurity Enforcement Sweep

  4. Shifting Approach to Corporate Penalties - In March, SEC Commissioner Caroline Crenshaw criticized the SEC's 2006 guidance on its approach to penalties. Gibson Dunn notes that if the Commission is no longer following the 2006 guidance, then untethered from a consideration of corporate benefit or shareholder cost-benefit, the Commission's posture on corporate penalties is vulnerable to subjective assessments of egregiousness and corporate cooperation. Moreover, unlike calculations under the US Sentencing Guidelines, there is no public disclosure of exactly how the SEC reaches a particular penalty, leaving companies and counsel unable to understand the basis for any negotiated penalty amount.

  5. Discovery of Staff Positions - In recent litigation, defendants have been able to get internal Staff documents and even depose former Corp Fin Director Bill Hinman.

  6. Whistleblower Awards - Coming in at a record pace.

BlackRock's Support for Shareholder Proposals Doubles

BlackRock just issued its 2021 Stewardship Report and it's an eye-opener, particularly when it comes to the giant asset manager's support of shareholder proposals during the 2020-2021 proxy year. Here are some of the highlights:

– BlackRock supported 35% of shareholder proposals, compared to 17% the previous year. On ESG-related topics, BlackRock supported 64% of Environmental proposals, 35% of Social proposals, and 32% of Governance proposals. It cast at least one vote against management's recommendations in 42% of this year's meetings, compared to 39% last year.

– BlackRock voted against 10% of incumbent directors this year, up from 8.5% last year. Corporate governance concerns — including lack of board independence, insufficient diversity, and executive compensation — prompted most of the votes against directors' elections, and other director-related proposals, globally. In the Americas, lack of board gender diversity was the most common reason for rejecting a director, accounting for 61% of negative votes. BlackRock withheld votes from 255 directors based on climate-related concerns.

– BlackRock voted against 5% of Say on Pay proposals in the Americas compared to 4% last year, and voted against 16% globally compared to 12% last year. BlackRock voted against 20 S&P 500 Say on Pay proposals, and 12 of these proposals failed to receive majority support.

The report covers BlackRock's stewardship activities focusing on proxy voting for the period from July 1, 2020 to June 30, 2021. It also provides specific engagement case studies and addresses how BlackRock's voting aligned with its engagement priorities - which include board quality and effectiveness, aligning incentives with value creation, climate and natural capital, strategy, purpose and financial resilience, and company impacts on people.


Whistleblower Hoax: Heads Up! New Fake Emails Making the Rounds

Last month, Liz blogged about a hoax whistleblower email message that was making its way around public company ethics inboxes. Unfortunately, we've recently learned that there are at least two more of these in circulation. Here's the first:

To Whom It May Concern:

I want to report an incident that I believe is of interest to the ethics board. It has recently come to my attention that a certain employee I work with, which I will leave nameless for the time being (referring to them as Doe), is engaged in an activity I feel is inappropriate. Doe and I both work in one of the company's sales teams. A while back, a few of us went to grab drinks after work, and a conversation soon ensued. We were discussing work matters, and specifically our client relationships, and things of that nature, when Doe leaned over and whispered so that only I could hear that the best way to retain your clients is to keep them happy if I know what they mean. At the time, I paid no mind to it. Later that evening, while getting back to our cars, Doe and I were by ourselves. I mentioned in passing that this year was not bad considering COVIC from what we initially expected when again they said something along the lines of how they never expected a bad year because of how they take care of their clients. This time I asked what they meant. They kept saying "Cmon, you know what I mean" and stuff like that. They told me that when it comes to lon-lasting clients or important leads, they go above and beyond, making sure they are happy. I agreed with them, saying I do the same. They they said - no no, I mean really take care of them. When I probed, they said that their clients trust them to give them the best possible price, and in return they get favors. When I asked what these favors might be, they were initially coy about it, but gave me a recent example. They said they give some big client the star treatment, because that person's wife is a deputy superintendent in the county where their kids go to school. They said it's always good to make friends with people like that, because you never know when you will need a favor, like getting your kids into a good high school or even college, and in fact they already hit that lady up to help get their sister a job, and she said she will see what she can do. I again don't remember exactly how I responded. I just remember feeling flabbergasted but acting like what tey told me was no big deal and saying something about how our company doesn't appreciate us (I was trying to make them feel like I'm cool with what they told me). They agreed and said that for the most part, there aren't that many opportunities available for us, but when they spot something, they always try to think of helping out people that can later help them.

Initially, I was thinking about going with this to HR, but I couldn't bring myself to do that because I know it will come back to me. I also cannot just tell my boss about this because that person is close to Doe, and I guarantee they will not take my side or at least try to brush it off. I know it's important to be a team player and support each other, but I'm pretty sure what I'm describing here is a big no-no. Worst of all, I don't want it to reflect badly on me later on if anyone finds out. A part of me just wants to pretend I didn't hear it, and act like nothing happened. However, after some thought, I decided to first reach out to you and hear what the committee has to say. I read the material you provided online in the code of conduct, and I realize that in order for you to see this through, I might eventually need to give you their, and maybe even my name, but for the time being, I just want to get your take on it.

Here's the second:

To members of the anonymous hotline, The location I wrote in the report is false. About a month ago, something was brought to my attention, which I want to report. Before I go into detail, I want to make sure the committee understands I refuse to reveal my identity and choose to remain anonymous. I don't mind giving out the name of the person I am reporting, but that is only after I am promised that no one can find out I made the claim. The person I am reporting is a long-time employee. Recently, I found out that for invoices in at least one firm, (I found out it happened multiple times) he adds a large upcharge before having us send them out. I have no idea what he claimed under that upcharge, but I'm sure of it, because a buddy of mine working in that firm in their accounting department confirms it. I did a little digging and found that the invoices are always billed to the same customer- a big company we have been working with for a long time. At first, I thought that there's still a chance nothing fishy is going on, and maybe I'm just not aware of all the details. However, after a while that same friend told me he asked around and turns out the person taking care of these invoices on their end is always the same guy, which my friend tells me is a bad apple. He said he checked, and all invoices are paid promptly and in full- no question asked, and that he personally saw the receipts. I then did some searching on social media (Facebook and Instagram of them and their family members) and found that the our guy and his culprit are actually related somehow. I'm not sure how, as they don't share the same last name, but I can see that they have lots of pictures with each other attending weddings, fishing, on holidays and stuff like that. I realize how serious what I'm saying is, but I'm only coming to you after making sure that I'm not implicating someone innocent here. My friend at the other firm is someone I trust completely and agreed we shouldn't do anything so until you guys get back to me. We both decided that no matter what we will not be going to our bosses or anyone on HR on this because we know then people will know it was us that found out. Please contact me as soon as possible and let me know what happens next.

Liz gave some solid advice in her blog about what to do if one of these lands on your desk, and you may want to take another peek at it. We don't think anybody knows for sure what the game is here, but sending out a bunch of hoax emails seems to be a pretty good way to gum up the works of corporate whistleblower programs.


Risk Factors: Updating For This Quarter's 10-Q

With 10-Q deadlines just around the corner for many companies, this Bryan Cave blog provides a reminder about the need to take a hard look at prior risk factor disclosures to see if any need updating. This excerpt addresses an area of the risk factors section that many companies will be scrutinizing closely - Covid 19 risk disclosures:

As a number of business sectors improve, it may be advisable to revise COVID-related risk factors to reflect the changing economic climate. In some cases, the focus may need to shift to address challenges in increasing production, managing supply chains, hiring workers or otherwise responding to increasing customer demand. In other cases, companies that benefited from dramatic changes in the economy during the pandemic peak may need to address potential risks associated with a return to normalcy.

For example, consider whether recent growth trends are viewed as sustainable in light of the MD&A requirement to discuss "known trends or uncertainties" that the company "reasonably expects will have a material favorable or unfavorable impact on net sales or revenues or income." At the same time, it may be appropriate to continue to caution investors as to uncertainties as to the future course of the pandemic - particularly as concern with the impact of variants evolves.

Last month, John blogged about the need to keep in mind the implications of Form 10-Q's risk factor updating requirement on the problem of "hypothetical" risk factors. The blog highlights that concern too, and specifically points out the need to consider the impact of current events (e.g., heatwaves, cyberattacks & the President's executive order on competition). Risk factors touching on these events should be reviewed to determine whether clarification that a risk is no longer hypothetical is necessary.


Lack of Quorum Leads to Shareholder Meeting Adjournment

It's not every day that you see a headline saying a company adjourned its annual shareholders' meeting due to lack of quorum - but that's exactly what happened to a company in July. According to the company's press release, at the time the annual meeting was adjourned, proxies had been submitted by stockholders representing approximately 40% of the company's outstanding stock. Under the company's bylaws, a quorum consists of a majority of the shares entitled to vote.

Earlier this year, Liz blogged on the Proxy Season Blog about TD Ameritrade's elimination of discretionary voting. One potential impact of TD Ameritrade's change is on companies that rely on discretionary votes to reach a quorum. We've been hearing that over time more companies may encounter difficulty obtaining enough votes to reach a quorum as a result of the rise in retail shareholders, along with historically lower vote returns from retail holders. For the company impacted, it's not clear what their mix of shareholders might be but it's an indicator that lack of quorum could be a reality for some. For now, they've engaged a proxy solicitor to help reach a quorum and the meeting is adjourned until August 23.

We've got a checklist with considerations relating to "Adjournment & Postponement of Annual Meetings" available here on TheCorporateCounsel.net. It's available to members for free, check it out in the event you ever find yourself in this situation!


Shareholder Proposals: The "Say on Climate" Scorecard

Efforts to have public companies' adopt "Say on Climate" (SoC) proposals that would require an annual shareholder vote on their climate strategies have been a big issue during the 2021 proxy season - in fact, according to Glass Lewis, SoC proposals were arguably the "most dominant" issue this year. A recent Squarewell Partners study took a close look at SoC proposals and how they fared globally during this year's proxy season. Here are some of the study's key findings:

– As of June 2021, SquareWell is aware of 32 companies that have submitted (or will submit) a SoC proposal, either management- or shareholder sponsored. 23 companies have adopted, either voluntarily or following shareholder pressure, the principle of a SoC vote and are subjecting their climate action plans to shareholder scrutiny.

– The approaches taken by companies that have adopted SoC vary to a great extent, with some companies putting their climate action plans as a one-off shareholder vote. The content of climate action plans are also heterogeneous - some more in line with the objectives of the Paris Agreement than others. Unilever's climate action plan was the most robust in terms of disclosure.

– Management-sponsored SoC proposals have been supported, on average, by more than 90% of shareholders. Only Glencore (UK), Atos (France), S&P (US), Total (France), and Royal Dutch Shell (US) have received over 10% dissent (including abstentions) on their climate action plans as of June 2021. Shareholder-sponsored SoC proposals have been less successful, except at Aena and Canadian Pacific Railway. TCI was the proponent in both cases.

The study notes that Institutional Shareholder Services (ISS) has been more supportive of both management- and shareholder-sponsored SoC votes than Glass Lewis, and that although the vote results suggest that shareholders are broadly supportive of the SoC concept, several asset managers and asset owners have voiced concerns with the campaign.


Climate Change Disclosure: State AGs on the Prowl

Most of us look at climate change disclosure obligations in the context of what the SEC now requires or what the agency will require in the future. This Winston & Strawn blog provides a reminder that other disclosure obligations may exist - and that alleged violations of them are being aggressively pursued by state AGs. The blog discusses litigation brought by Massachusetts against ExxonMobil alleging that it deceived consumers about the impact of climate change on its business. In addition, this excerpt lists some other pending actions by state AGs targeting climate-related disclosures:

Connecticut. Attorney General William Tong sued Exxon under the Connecticut Unfair Trade Practices Act. This suit alleges: "ExxonMobil knew that continuing to burn fossil fuels would have a significant impact on the environment, public health and our economy," yet ExxonMobil did not disclose that to the public.

Delaware. Attorney General Kathleen Jennings filed a lawsuit against BP America Inc. and many other companies. The state asserts common law claims and a claim under Delaware's Consumer Fraud Act. It alleges the defendants' failures to disclose "their products' known dangers—and simultaneous promotion of their unrestrained use—drove consumption, and thus greenhouse gas pollution, and thus the climate crisis."

District of Columbia. Attorney General Karl Racine filed a lawsuit against BP plc, Chevron, Royal Dutch Shell, and others. The suit similarly alleges these entities failed to disclose to consumers the role their products play in causing climate change.

Minnesota. Attorney General Keith Ellison filed a complaint against ExxonMobil, the American Petroleum Institute, Koch Industries, and Exxon and Koch subsidiaries. It similarly accuses the defendants of insufficient disclosure and acts associated with climate change.

The blog also says that while most of the actions so far have targeted the oil & gas industry, state AGs are on record as having said that most U.S. companies have not adequately considered or disclosed climate-related financial risk. The blog says that they are eyeing tech companies and those in the agriculture sector as possible litigation targets.


Tension in Company Audit Process Could Get More Pronounced

Last month, John blogged about the removal of the PCAOB Chair and the pending overhaul of the members of the PCAOB board. Some view these moves as political, but aside from that, a Troutman Pepper memo advises companies to prepare for potentially more rigorous auditing processes. The memo notes that a revamped PCAOB will likely place more emphasis on enforcement, which could lead auditors to engage in more intense audits. More than that, the memo also discusses a district court decision out of the D.C. Circuit relating to attorney-client privilege that could raise tension between auditors and companies.

The court's decision required the company to provide information from an internal investigation to the SEC after the company's outside counsel shared information with the company's outside auditor. Between the PCAOB developments and this court decision, companies could feel the heat a little more than years past as they work through the annual audit process with outside auditors. Here's more about the court decision:

The issue here started shortly after the company announced a False Claims Act settlement with the DOJ and from there, things began to unravel. The SEC then initiated a formal investigation into RPM's public disclosures. Due to the SEC's investigation, RPM's outside auditor, E&Y, informed RPM that they could not sign off on RPM's 10-K without RPM conducting an internal investigation. RPM hired outside counsel to conduct an internal investigation, who interviewed 19 current and former RPM employees.

To give E&Y comfort, RPM's outside counsel made an oral presentation to E&Y, which included specific quotes from their interviews. RPM's outside counsel then drafted 19 interview memoranda based on their interviews.

The SEC then sued RPM alleging that the company didn't timely record accruals relating to the DOJ settlement. As part of discovery, the SEC requested documents including the interview memoranda. The court ordered the company to produce all of the interview memoranda to the SEC, holding that the interview memoranda wasn't work product because it wasn't prepared in anticipation of litigation, by sharing the substance of the information with E&Y (and subsequently allowing E&Y to share information with the SEC), the company waived its work product protection and while most of the interview memoranda reflected privileged communications between the company's outside counsel and company employees, the company waived attorney-client privilege when it disclosed facts from the investigation to E&Y.

The court's holding in this case really highlights the limitations companies could encounter when seeking to rely on attorney-client privilege and work product protection. For more on the court's decision in this case, this Skadden memo provides a discussion of the court's reasoning. Also, our "Attorney-Client Privilege" Practice Area has memos with tips and guidance about how to manage risks in protecting privileged information.


July-August Issue: "The Corporate Counsel" Newsletter

The July-August issue of "The Corporate Counsel" newsletter is in the mail. It's also available now online to members of TheCorporateCounsel.net who subscribe to the electronic format - an option that many people are taking advantage of in the "remote work" environment (subscribe here to be "in the know"). The issue includes articles on:

– Universal Proxy: Takeaways From the Reopened Comment Process

– Can It Wait Until the Next 10-Q?

Dave & John also have been doing a series of "Deep Dive with Dave" podcasts addressing the topics we've covered in recent issues. We'll be posting one for this issue soon. Be sure to check it out on our "Podcasts" page!


July-August Issue: "Deal Lawyers" Newsletter

The July-August issue of the Deal Lawyers print newsletter was just posted - & also sent to the printer. It takes a deep dive into the growing business of M&A-related fiduciary duty claims against corporate officers. Topics include:

– What Claims are Being Brought Against Officers?

– Officer Liability: Beyond Motions to Dismiss

– Claims Against Persons Serving as Directors and Officers

Pattern Energy: Officer Liability Leads to Unexculpated Director Liability

Remember that - as a "thank you" to those that subscribe to both DealLawyers.com & our Deal Lawyers print newsletter - we are making all issues of the Deal Lawyers print newsletter available online. There is a big blue tab called "Back Issues" near the top of DealLawyers.com - 4th from the end of the row of tabs. This tab leads to all of our issues, including the most recent one.

And a bonus is that even if only one person in your firm is a subscriber to the Deal Lawyers print newsletter, anyone who has access to DealLawyers.com will be able to gain access to the Deal Lawyers print newsletter. For example, if your firm has a firmwide license to DealLawyers.com - and only one person subscribes to the print newsletter - everybody in your firm will be able to access the online issues of the print newsletter. That is real value. Here are FAQs about the Deal Lawyers print newsletter including how to access the issues online.


Conference Calendar


What's New on Our Websites

Among other new additions, we have posted:

  • "Deep Dive with Dave" podcasts in which Dave Lynn takes a deep dive with his special guests as they explore the latest developments in securities laws and corporate governance. Check out these episodes:

    A Tribute to Marty Dunn

    – Our own John Jenkins of TheCorporateCounsel.net and Calfee, Halter & Griswold - Dave and John cover the latest issue of "The Corporate Counsel" newsletter, topics include:

    • Fun in the Summer - Navigating the Filer Status Maze
    • Fighting to Keep Your Secrets - A Fresh Look at Confidential Treatment
       

    – An Electronic Signatures Workshop with Jim Brashear of McKesson Corporation - topics include:

    • Background of Signature Requirements
    • The SEC's Regulation S-T Rule Changes
    • How to Authenticate an Individual's Identity
    • Addressing Non-Repudiation
    • Initial Electronic Signature Authentication Document
    • Retention of Electronic Signatures
       

    – A Confidential Treatment Workshop with Dave Meyers of Troutman Pepper - topics include:

    • Overview of the Confidential Treatment Process
    • The 2019 SEC Rule Changes - The "Ask for Forgiveness" Approach
    • The Filing Review Process
    • Seeking Extensions of Confidential Treatment Requests
    • Farewell to Competitive Harm
       

    – Our own John Jenkins of TheCorporateCounsel.net and Calfee, Halter & Griswold - Dave and John cover the March-April issue of "The Corporate Counsel" newsletter, topics include:

    • Climate Change Disclosures: Preparing for Staff Scrutiny
    • The SEC's Rule 144 Proposals: Our Suggestion to Combine the Form 144/Form 4 Filing Process Sees the Light of Day!
    • SEC Eases Auditor Independence Rules

    Mark Kronforst of EY and former Corp Fin Chief Accountant - topics include:

    • How significant are the Regulation S-X amendments for acquisitions and dispositions to public companies?
    • How do the new significance tests work?
    • Will companies need to provide more pro forma financial information?
    • Do the changes to the significance tests affect disclosures outside of Rule 3-05, such as Rule 3-09?
    • What potential pitfalls should companies consider with this new approach?
    • When do these changes go into effect and how does early compliance work?
       

    – A podcast series - "Women Governance Gurus" - that Liz has been hosting with Courtney Kamlet of Vontier. Many illustrious guests have joined Liz & Courtney to talk about their careers in the corporate governance field - and what they see on the horizon. Recent episodes include:

The following memos & insights:

- "Best Practices for Responding to SEC 'Voluntary' Requests" - BakerHostetler (7/21)
- "Planning for Shareholder Engagement" - Fenwick (7/21)
- "Mid-Year Enforcement Update" - Gibson Dunn (7/21)
- "2021 Investment Stewardship Report" - BlackRock (7/21)
- "Adding Value: Audit Committees' Dynamic Role" - Tapestry Networks (7/21)
- "Enhancing Disclosure Controls & Procedures for Voluntary ESG Disclosure" - Skadden (6/21)
- Memos: Goldman Class Action Case
- "SEC Charges Issuer for Inadequate Disclosure Controls in Context of Data Breach" - Simpson Thacher (6/21)
- "SEC's Rulemaking Agenda: ESG, Investor Protection & Insider Trading" - Covington (6/21)
- "Auditor Independence Amendments Now Effective" - CAQ (6/21)


People: Who's Doing What & Where

We're Hiring - Apply Today! Are you a fellow securities law geek who's always wondered what it's like to be on the other side of this operation? Now's your chance to get involved! With Lynn Jokela departing (*sniff*), we are looking to bring in one or two self-starters to keep our resources up-to-date and a steady stream of useful info flowing to all our members. Here are the job listings:

Associate Editor - approximately 4 years of securities law experience preferred

Editor - 8+ years of securities law & corporate governance experience preferred

We're fully remote and a few states are preferred, but we're open to almost anywhere in the US. Our team is small but mighty. I won't toot my own horn, but I will say that it's pretty awesome to work with John, Lawrence, our cast of consulting Editors - and all of the great members who keep us in the know.

SEC Chair Gensler Appoints Policy Team: The SEC announced appointments to Chair Gensler's policy staff, which is led by Policy Director Heather Slavkin Corzo. The appointments include Corey Klemmer as Corp Fin Counsel and Mika Morse as Climate Counsel. Corey was previously the Director of Engagement for Domini Impact Investments and will focus on policies intended to provide investors with material information about issuers. Mika was previously senior counsel and deputy legislative director for US Senator Brian Schatz (D-HI), and will be the lead policy advisor on climate-risk finance issues.

Keir Gumbs Joins Broadridge: Broadridge Financial Solutions, Inc. announced the appointment of Keir Gumbs as the company's Chief Legal Officer, effective July 27th. In this role, in addition to overseeing Broadridge's legal, compliance and physical security teams, Keir will join the Broadridge Foundation Board, Risk Committee and ESG Committee. Most recently, Keir served as Deputy Corporate Secretary and Deputy General Counsel at Uber Technologies and he previously served at the SEC and as a partner at Covington & Burling. Adam Amsterdam, who had led Broadridge's legal function for nearly 30 years announced his retirement and will transition into a Senior Advisor role with Broadridge.

Hannah Kim Joins Neiman Marcus: Neiman Marcus Group announced the appointment of Hannah Kim as Chief Legal Officer, Corporate Secretary, Chief Compliance Officer and a member of the executive team, effective July 26th. Hannah was most recently Chief Legal Officer at Energizer Holdings and she previously served in senior roles at Bank of America and Lowe's Companies.

Michele Lau Joins GoDaddy: GoDaddy announced that Michele Lau would become Chief Legal Officer, and the move became effective on July 12th. Michele previously served as SVP, Corporate Secretary and Associate General Counsel of Corporate, Governance & Transactions at McKesson. Michele also co-chairs the National Asian Pacific Bar Association's In-House Counsel Mentoring Program and serves on the board of directors of the Asian Pacific Fund. GoDaddy's previous CLO, Nima Kelly, is retiring.


Your Input, Please

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