I have received a fair number of member questions on “what are companies doing to respond to the letter from the Council of Institutional Investors relating to the majority vote movement?”
So yesterday I conducted this podcast with Ann Yerger, Executive Director of CII, who addressed:
– What is CII’s policy on majority voting for directors?
– What is CII’s approach to implementing that policy right now?
– Regarding the 1500 majority vote letters that CII sent to the largest companies, what type of response is CII looking for?
– How many responses has CII received so far? What do they say?
– What will CII do if it doesn’t get the response from a company that it was hoping for?
It’s Nice Work If You Can Get the Money When You Leave
This Wednesday WSJ “Long & Short” column was “spot on” regarding Morgan Stanley paying $32 million in severance to someone who served as co-President for a very short period of time, a golden parachute equal to 2x annual salary.
This excerpt from the column says it all: “Mr. Crawford was put into his job, by Mr. Purcell, 3½ months ago after years in essentially administrative jobs. For this he deserves a golden parachute of $32 million in cash compensation? The board guaranteed him $16 million a year for two years — but said he could just walk away with the whole shebang if he left by Aug. 3. Decisions, decisions.”
It’s just confusing to me how these contracts get drawn up. If you ran your own business, would you contract with an employee in a way that would encourage her/him to leave a few months later and take away tens of millions? I suppose you might if you were dealing with Monopoly money, er, shareholders’ money.
Just Announced! Learn how to implement responsible practices from the thought leaders at the CompensationStandard.com’s “2nd Annual Compensation Conference,” as we have just announced the agenda for this blockbuster program. Even more than last year, there will be a heavy concentration on providing practical guidance about what you need to do now.
President Bush on Verge of Nominating Two Democrats as SEC Commissioners
A number of recent news reports, including this article, state that President Bush is near accepting the Senate Democratic leadership’s preferred candidates to fill the party’s two seats on the Commission: current Market Reg Director Annette Nazareth and current Commissioner Roel Campos, whose term expired last month.
The Senate Democrats desire these two candidates be nominated at the same time that Chris Cox is confirmed as SEC Chair. Since Congress’ summer recess commences in a few weeks, it’s possible this might not happen until the fall.
Perhaps a foreboding sign that a shake-out in the governance ratings space is not far off, Institutional Shareholder Services announced yesterday it was acquiring Investor Responsibility Research Center, a proxy research firm. According to this article, ISS will pay more than $10 million to buy IRRC, which has been struggling since becoming a for-profit entity four years ago.
ISS and IRRC were often painted as bitter rivals. Until Glass Lewis opened its doors a few years ago – and then Proxy Governance late last year – institutional investors only had two choices for proxy research: ISS and IRRC. However, IRRC never provided opinions as to how to vote – it just offered research to assist investors in making their own decisions. In comparison, Glass Lewis and Proxy Governance offer voting opinions ala ISS. Now, ISS will continue to grow at a fast pace – and investor alternatives dwindle back to three.
Interestingly, many folks involved in the proxy research/ratings industry started their careers at IRRC (egs. Pat McGurn, Howard Sherman).
“We developed the first version of this Handbook after the Enron situation when we had forums across the country on what boards and companies needed to do in the wake of Enron. This Handbook represents the updated version incorporating all the SOX, NYSE and best practices governance provisions enacted since the first version was printed two years ago.
We have organized it according to how boards function, bringing together all materials for each function area, e.g. comp committees, audit committees. Many companies have purchased copies for each board member as a quick “reference” as to each director’s basic duties.
Also, we believe that, as “good faith” becomes more of a focus for directors, they need to know “best practices” in general, not just case by case law. We intend the handbook to be as ‘best practices” reference for directors coping with their new responsibilities.
We have an updated and expanded section on Strategy and ERM since we believe this is the newest “hot” topic boards need to focus on. Since boards have
been focusing on regulatory details such as 404 and compliance, many directors are now saying they want to get back to the reason they are on the board in the first place, e.g. to oversee and monitor the strategy the management devises. Strategy needs to be looked at in a new era of risk and risk needs to be located more at the full board level and not just in the audit committee. We are also starting a working group on enterprise risk management (for a description of the working group/agenda for 1st meeting on 9/15, contact email@example.com).”
SEC Chair Nominee Cox Discloses His Assets
According to various news reports yesterday, Rep. Chris Cox (R-Cal.) has disclosed stock, mutual fund and other assets valued at between about $2.7 million to about $5.85 million. The disclosure is required for Mr. Cox’s confirmation as SEC Chair. The report provides a range in value for each holding, making it impossible to determine a precise value for each asset. Apparently, the future Chair has a penchant for gold stocks. And me? I am a terrible stock-picker – got a tin can buried in the backyard…
US Chamber of Commerce Sues SEC Again
As could be expected, the US Chamber of Commerce filed a petition last week with the D.C. Circuit Court seeking review of the new SEC rules on investment company governance (i.e. requiring 75% independent directors and an independent chairs), following the June 29th SEC Commission meeting when the rules were essentially re-affirmed (technically it was a “response to remand by Court of Appeals“). The SEC’s re-affirmation was much to the chagrin of Commissioners Glassman (see dissent) and Atkins (see dissent). Here is the Court of Appeal’s original decision from June 21st.
Last week at the European Policy Forum in London, Delaware Vice Chancellor Leo Strine criticized the Sarbanes-Oxley Act by calling it a “strange stew,” noting the “creeping intrusion” of regulatory oversight, and suggesting that the federal government should stay “in its traditional lane” on matters of corporate governance. More information on VC Strine’s speech is provided in this CFO.com blog – interestingly, the Financial Times ran three different articles covering this speech. Note that the speech itself is available only by request from the European Policy Forum.
More on Blackout Periods
Below are the results from our most recent survey about blackout and window periods (here are results from last year’s blackout survey):
1. Does your company ever impose a “blanket blackout period” for all or a large group of employees?
– 70% – Regularly before, at, and right after the end of each quarter
– 13% – Only in rare circumstances
– 17% – Never
2. Our company’s insider trading policy defines those employees subject to a blackout period by roughly:
– 3% – Stating that all Section 16 officers are subject to blackout
– 12% – Stating that all Section 16 officers “and those employees privy to financial information” are subject to blackout
– 28% – Stating that all Section 16 officers “and others as designated by the company” are subject to blackout
– 35% – Stating that all Section 16 officers “and those employees privy to financial information and others as designated by the company” are subject to blackout
– 12% – All employees
– 12% – Some other definition
– 0% – Our company doesn’t have an insider trading policy
3. Does your company allow employees (that are subject to blackout) to gift stock to a charitable, educational or similar institution during a blackout period?
– 28% – Yes, but they must preclear the gift first
– 9% – Yes, and they don’t need to preclear the gift
– 26% – No
– 38% – Not sure, it hasn’t come up and it’s not addressed in our insider trading policy
4. Does your company allow employees (that are subject to blackout) to gift stock to a family member during a blackout period?
– 33% – Yes, but they must preclear the gift first
– 9% – Yes, and they don’t need to preclear the gift
– 19% – No
– 40% – Not sure, it hasn’t come up and it’s not addressed in our insider trading policy
5. Are your company’s outside directors covered by blackout or window periods and preclearance requirements?
– 99% – Yes
– 1% – No
It needed a kick in the pants when I blogged about it last Friday, but now it’s fixed and you can participate in the new quick survey on how the head of internal audit interfaces with the board of directors (and who he/she reports to). Take a moment to participate in the survey near the top of our home page.
Rep. Oxley and Aircraft Use
It’s amazing how many items I could be blogging about every day. For example, I kept putting off commenting on this April article on how Rep. Michael Oxley (R-Ohio) is the most frequent user of company jets among all 535 members of Congress, with at least 41 flights provided by corporations during the past two years. Odd for the co-father of SOX?
Congress is required to reimburse companies from their campaign accounts or political action committees at the cost of a first-class airline ticket, but there is a big difference between the cost of ticket and the cost of a private jet, some of which are equipped with showers and exercise bikes. Sound familiar? Learn more about executive use of aircraft in the “Airplane Use” Practice Area on CompensationStandards.com.
As noted in this article, the Walt Disney Company and former directors Roy Disney and Stanley Gold have reached a truce in their ongoing battles. Roy and Stan have agreed not to run a slate of directors or submit shareholder resolutions for the next five years, as well as drop the CEO succession lawsuit that the Delaware Chancellor Chandler recently refused to dismiss. The two also pledged to back the leadership of new CEO Robert Iger.
In exchange, Roy Disney has been named a director emeritus and a consultant to the company. In addition, the company reaffirmed to rotate members of the board’s committees, as currently required by the company’s corporate governance guidelines.
From a governance perspective, the problem with this arrangement is that serving as a director emeritus is not necessarily good for other shareholders. Even though Roy will be a presence in the boardroom – and may impact decisionmaking there – he will not owe any fiduciary duties to shareholders nor will shareholders have an opportunity to withhold votes against him (i.e. the equivalent of voting against) if they don’t believe he is performing or the right person for the job. Perhaps this is why so few companies have honorary directors serving on their boards.
According to an article in Corporate Board Member a few months back, The Corporate Library reports that 107 former board members currently hold the title of emeritus or honorary director, compared with 60 in 2003…but that’s just those companies disclosing the existence of emeritus directors (as the SEC’s regulations don’t require disclosure of these non-voting positions in proxy statements or otherwise). This illustrates a growing trend – but the number is still quite small considering that there are over 15,000 reporting companies.
How You Should Respond to the Latest Whistleblower Developments
In this podcast, Tom White and Carrie Wofford analyze the latest developments in the whistleblower area and provide some practice pointers on what you should now be doing, including:
– What types of action has the Department of Labor’s Occupational Safety and Health Administration been taking?
– How can companies challenge the preliminary order of reinstatement?
– What has been the DOL’s reaction to these challenges?
– What should companies be doing to review existing non-retaliation policies?
– How can they plan to handle any future employee complaints of corporate wrongdoing? Or handle a current complaint by an alleged whistleblower?
Meeting the New Compliance Standards
Today, join us for a webcast – “Meeting the New Compliance Standards” – during which a panel of compliance experts provide practice pointers on how to best develop a compliance program to meet the new US Sentencing Guidelines, with a focus on the challenging cultural requirement in the Guidelines.
If you do a lot of compliance, you know these panelists are leaders in the compliance field: Jeff Kaplan of Stier Anderson; Steve Priest of the Ethical Leadership Group and Tom McCormick of The Dow Chemical Company.
One of my pet peeves is that I believe companies should be demanding that their independent auditors inform audit committees when the PCAOB is reviewing a company’s file during a PCAOB inspection of the auditor (the PCAOB doesn’t require that auditors share inspection reports with their clients, but also doesn’t prohibit them either – the reports are confidential merely in the hands of the PCAOB and SEC). My point is driven home in this recent Bloomberg article.
According to the article, the SEC inadvertently disclosed the fact that the PCAOB is investigating Deloitte & Touche LLP’s 2003 audit of Navistar International Corp. (this would be the PCAOB’s first known formal probe of a Big Four firm). Wouldn’t the Navistar audit committee want to know of this probe before reading about it in the newspapers? Some might argue that a board might even have a duty to be at least asking for this type of information as part of its duty of care, as it should be aware if a regulator is questioning its application of the auditing standards.
Also according to the article, the SEC received a copy of the investigative order from the PCAOB on May 25 and accidentally made the document available in its reference room during the week of June 20, adding that the order was marked “non-public.”
Here is some sample language that companies can seek to include in their engagement letter with their auditor:
“We will promptly notify the Chairman of the Audit Committee and management if we or the Company are selected for inspection by the PCAOB or the SEC and will promptly communicate to the Chairman of the Audit Committee and management any information that we receive about such inspection that has a probability of having a material effect on the company’s financial statements previously reported on by us or that could result in a modification to an audit report issued by us to the company. We will also, at the next regularly scheduled audit committee meeting subsequent to the review, update the audit committee on any significant comments or matters relating to the company stemming from the PCAOB’s or SEC’s review. We will promptly provide the Chairman of the Audit Committee and management with copies of all requests for production of documents or information relating to the company that we receive from the SEC or the PCAOB other than requests for our workpapers. Upon your request, we will provide the Audit Committee and the Company with a copy of any publicly available inspection reports on us issued by the PCAOB, but we will not provide any confidential inspection reports issued by the PCAOB to us, the confidentiality of which is provided for in the Sarbanes-Oxley Act of 2002 and the PCAOB’s inspection rules.”
M&A Boot Camp: Disclosure Issues
On DealLawyers.com, check out the latest installment of the “M&A Boot Camp” – this one relates to “Disclosure Issues” and features the former Chief of SEC’s Office of Mergers & Acquisitions, Dennis Garris, who is now a Partner of Alston & Bird LLP.
If you are not a DealLawyers.com member, try a no-risk trial as we just launched our half-price “Rest of 2005” rate – believe it or not, a license for a single user is only $100 and there are similar reduced rates for offices with more than one user!
Nasdaq Issues FAQ on Disclaimed 404 Opinions
On Friday, the Nasdaq posted this new FAQ, which is repeated below in its entirety:
Q: Does a Form 10-K satisfy NASDAQ’s filing requirements if management has not completed its assessment of internal control over financial reporting or the auditor’s attestation report contains an opinion that is disclaimed because the auditor did not have time to complete its internal control work?
A: A Form 10-K does not satisfy NASDAQ’s filing requirements if management has not completed its assessment of internal control over financial reporting or the auditor’s attestation report contains an opinion that is disclaimed because the auditor did not have time to complete its internal control work. Thus, any company filing without a completed assessment by management or with such a disclaimed opinion would ordinarily be subject to being delisted. However, NASDAQ acknowledges that during this first year of implementation of Section 404 it has proven difficult for certain companies to complete their assessment of internal control over financial reporting and file their Forms 10-K without disclaimed opinions.
As a result, NASDAQ, after consultation with the Staff of the Securities and Exchange Commission (“SEC”), has determined that during 2005, management’s failure to complete its assessment of internal control over financial reporting or an auditor’s opinion that is disclaimed based on a lack of time to complete internal control work will not result in delisting of the company, provided the company is taking all steps required by the Staff of the SEC to address these issues. A company in this circumstance should promptly contact NASDAQ’s Listing Qualifications Department. Please keep in mind, however, that no company will be eligible for this relief unless the Form 10-K contains an unqualified audit opinion on the company’s financial statements.
Adopting Release for Penny Stock Rules Amendments Now Available
Way back in April, the SEC adopted amendments to the definition of “penny stock” in Rule 3a51-1 as well amendments to the procedural requirements of Rules 15g-2 and 15g-9. On Friday, the SEC finally posted the related adopting release.
We have posted a new quick survey on how the head of internal audit interfaces with the board of directors (and who he/she reports to). Take a moment to participate in the survey near the top of our home page.
How to Navigate Tricky Confidential Treatment Requests
We have posted the transcript for the webcast – “How to Navigate Tricky Confidential Treatment Requests” – which includes commentary from the SEC Staff about its comment letter database.
More Companies Reveal Social Policies
Last month, General Electric issued its 78-page “2005 Citizenship Report,” the first of its kind for GE. Below is a Financial Times articled dated June 15th notes how more companies are revealing their social policies:
“More than half of the world’s biggest companies reveal details of their environmental and social performance, according to a KPMG survey that provides fresh evidence of business leaders’ support for corporate social responsibility.
The survey, published every three years, found that CSR reports for 2005 now cover a much wider range of issues, and that many companies also provide CSR information in their annual financial reports. Fifty-two per cent of the top 250 companies in the Fortune 500 list published separate reports on corporate social responsibility, up from 45 per cent three years ago.
George Molenkamp, chairman of KPMG’s sustainability services, said the growth of CSR reporting had proved the sceptics wrong. “When we started observing these issues, many people argued this was just a fashion that would disappear as soon as the economic situation got worse. But the economic situation has deteriorated, and still more and more companies are doing this.”
Companies have also become more generous in the information they provide. While previously most businesses disclosed only their environmental record, most now cover issues such as labour standards, working conditions and community involvement as well.
The survey, due to be released today, states: “A growing number of companies (and their stakeholders) believe that long-term business success depends not only on a healthy balance sheet but also on social and environmental performance.”
That belief has now spread to sectors that traditionally saw little reason in issuing CSR reports. Most strikingly, 86 financial services companies issued CSR reports, up from only 40 three years ago. CSR reporting rose particularly strongly in Italy, Spain, Canada and France, where the number of companies issuing such reports almost doubled. But Japan and Britain remain the countries most strongly wedded to the concept.
Businesses cited a variety of reasons for their involvement in CSR, though by far the greatest number pointed to economic considerations. “The economic reasons were either directly linked to increased shareholder value or market share, or indirectly linked through increased business opportunities, innovation, reputation and reduced risk,” the survey notes. Ethical considerations came in second place, and were cited by more than one in two companies.
A desire to motivate employees and attract new recruits was a further strong incentive, the survey said. The KPMG report is based on an analysis of the 250 top companies in the Fortune 500, as well as the 100 biggest companies in 16 countries. It was written jointly with researchers from the University of Amsterdam.”
In this podcast, Brian Lane – a Partner of Gibson Dunn and former Corp Fin Director – provides his first reactions to the ’33 Act reform based on the limited information provided at last week’s open Commission meeting by addressing:
-How do you feel to see the ‘33 act finally get overhauled after spending a few years of your life on that project?
– Generally, how big of a change does this mean for deals?
– Based on what little information we have so far – given that the adopting release is not yet available – were you disappointed by any aspects by what was adopted?
– For in-house counsel, how dramatic a change does this mean for their daily practice?
New Standard of Judicial Review for Going Private Transactions
Last month, Delaware Vice Chancellor Strine delivered this 85-page opinion urging a new standard of review for going private transactions involving controlling shareholders – as well as possibly signaling a more balanced and reasoned approach toward director and shareholder conduct in many types of transactions.
VC Strine also provides the first opinion since Sarbanes-Oxley that chastises the plaintiffs’ bar for how they handle such cases, all in the context of a fee application by a plaintiffs’ firm in the case.
Learn more about this noteworthy case in this DealLawyers.com interview with David Berger and John Stigi on the Cox Communications Litigation.
What Non-US NYSE Listed Companies Need to Do Soon
In this interview, Mark Bergman of Paul Weiss explains what foreign private issuers that are listed on the NYSE need to do soon to comply with obligations that many of their domestic counterparts have already undertaken.
SEC Donaldson’s Farewell Speech
Yesterday, the SEC posted this farewell speech to the SEC Staff from Chairman Donaldson. I didn’t know the SEC was HQ’ed in Philly during WWII…
As noted in this press release, Nasdaq GC Ed Knight provided the following testimony on the impact of 404 on smaller companies before the SEC’s Advisory Committee of Smaller Public Companies. Here are some highlights:
– Based upon a survey of Nasdaq companies, as a percent of revenue, smaller issuers appear to have spent approximately 11 times more than larger companies on 404 compliance
– Since auditor resources are stretched thin, the set of smaller companies that do retain national auditors often receive less attention and are put on a lower priority track than larger companies; Nasdaq issued 60 delisting letters to issuers that failed to file on time, while last year only 14 companies were late
– In the first quarter of this year, 22 Nasdaq issuers voluntarily delisted compared to only seven in the same period in 2004; in each of these cases, the companies explained their decisions by citing the increasing regulatory costs associated with being public
Some members noted the fact that Nasdaq has 60 companies in delisting proceedings due to late filings is frightening – and that maybe the SEC should consider a different process to be used for those types of late SEC filings that are not caused by an “Enron type” of fraud (i.e. one does not require auto-delisting, but allows Nasdaq staff discretion to monitor the company). As noted in this earlier blog, it’s not too late to provide comments to the Nasdaq regarding its delisting procedures.
Disclosure Trends on Late SEC Filings
Sheldon Krause provides this interesting insight into how companies tend to announce that they will be late making their SEC filings: Late Nasdaq filers mainly wind up filing an 8-K under Item 3.01 to disclose noncompliance; whereas NYSE companies seem to rarely do so (although he has noticed a recent trend of more 3.01 8-Ks by NYSE companies).
Of particular interest to Sheldon is Saks filing a Form 8-K under Item 3.01 on June 3rd to disclose the late filing after having already filed a Form 8-K under Item 8.01 on May 17th reflecting that the company had received a May 3rd letter from the NYSE stating that they would have the dreaded “LF” indicator displayed aside its trading symbol.
The Art of Private Equity M&A
On DealLawyers.com, the long-awaited transcript from the popular webcast – “The Art of Private Equity M&A” – is now available.
July Issue of E-minders is Posted
We have posted the July issue of E-minders. Sign up for this free newsletter by inputting your email in this form.
Last Thursday, President Bush designated Commissioner Glassman to be Acting Chair while the appointment of Christopher Cox as permanent Chair is pending Senate confirmation. I presume the President made the selection based on seniority – as Commissioner Atkins was rumored to be among the candidates for the Chair position, but Glassman never was. Glassman joined the Commission six months before Atkins. Here is a recent speech from Commissioner Glassman regarding what she thinks is ahead for the SEC during this time of transition.
I doubt Commissioner Glassman will move her office down the hall into the Chair’s nicer office – unlike my former boss Laura Unger who moved into the head honcho suite when she served as Acting Chair. Unlike the present circumstances, Unger was hoping to be tapped as a permanent Chair when she moved down the hall – and she served as Acting Chair for seven months before Harvey Pitt was finally appointed.
I don’t think it will be too long before Cox is confirmed, unless the battle over the open US Supreme Court slot pushes aside all other confirmations in the Senate. [Note that serving as an Acting Chair doesn’t even get you recognized as serving as a Chair in the SEC’s Commissioner/Chair Chart.]
As could be expected, a bunch of former Chairman Donaldson’s Staff left the Commission last week along with Donaldson, including the head of Public Affairs – see the bevy of June 30 press releases regarding departures.
NYSE to Issue Comments on Director Independence
Geez, I go away for a week and Julie’s blog on the NYSE’s independence standards gets picked up in Friday’s WSJ for this article. Let me know if you get one of these “futures” comment letters. Teaches me to take a vacation – glad to be back!
Former Enforcement Director Cutler Rejoins Wilmer Cutler
Last week, Wilmer Cutler Pickering Hale and Dorr announced that former SEC Enforcement Director Stephen Cutler will rejoin the firm as co-chair of its Securities Department in the firm’s DC office sometime in “the fall of 2005. ” Prior to joining the SEC, Cutler had been a partner at Wilmer. With former Enforcement Director Bill McLucas also in the stable, Wilmer now has created quite an Enforcement practice juggernaut.
The NASD has proposed new Rule 2290, which requires certain disclosures and procedures for the issuance of fairness opinions by NASD member firms. This proposal follows up on the request-for-comment issued by the NASD in November 2004.
The disclosure requirements would require opinions to be included in a proxy statement to disclose certain information, including: (1) any payment or compensation that the member will receive that is contingent upon the successful completion of the transaction; and (2) whether the fairness opinion was approved or issued by a fairness committee following the procedures required by the proposed NASD rules.
The procedural requirements would require that any member issuing a fairness opinion have procedures regarding the approval of fairness opinions, including: (1) the process to determine whether the valuation analyses used in the fairness opinion are appropriate for the type of companies that are involved in the transaction; and (2) the process to evaluate the degree to which the amount and nature of the compensation from the transaction benefits any individual or class of officers, directors or employees relative to the benefits to shareholders of the company, is a factor in reaching a fairness determination.
– In 2004, 84% of responses to exemptive, no-action letter, and interpretive requests are issued within six (!) months.
– The number of new foreign private issuers registering under the 1933 and 1934 Acts decreased from 130 in 2001 (with $267 billion securities registered) to 63 in 2004 (with $146 billion securities registered).
– The agency turnover rate has decreased from 9.1% in 2001 to 6.3% in 2004.