Monthly Archives: July 2010

July 30, 2010

House Financial Services Committee Endorses Shareholder Votes on Political Spending

On Monday, I blogged about how a movement towards shareholder approval of political spending was gathering steam. Yesterday, as Ted Allen blogged in ISS’s Insight Blog, the House Financial Services Committee approved a bill introduced by Rep. Michael Capuano – by a vote of 35-28 – that would require companies to obtain investor approval before spending more than $50,000 per year in general corporate funds on political activities. We’ll see if this goes anywhere…

Survey Results: Director Education/Orientation

We have posted the results from our recent survey regarding director education & orientation, repeated below:

1. Does your board require directors to obtain continuous education:
– Yes – 15.2%
– Not anymore, we removed the requirement over the past year – 6.1%
– Never did require it – 78.8%

2. If you answered “not anymore” or “never” above, does your board encourage directors to obtain continuous education:
– Yes – 77.8%
– No – 14.8%
– Not yet, but it’s under consideration – 7.4%

3. Do any of your directors obtain – or will obtain during the next year – continuous education by:
– Third-party director colleges – 46.9%
– Third-party education provided in-house (i.e. the teachers come to the boardroom) – 40.6%
– Other educational opportunities ( in-house training in the boardroom, “homework,” plant visits) – 71.9%
– Doubt they will obtain any director education over the next year – 15.6%

4. If your directors obtain continuous education, are the topics covered:
– More business/operational in nature – 23.3%
– More legal/governance/ethics in nature – 76.7%

5. Does your company have a director orientation program for new directors:
– Yes – 72.7%
– No – 27.3%

6. Does the board require new directors to participate in the company’s director orientation program:
– Yes – 69.7%
– No – 30.3%

Please take our new “Quick Survey on Rule 10b5-1 Plan Practices.”

More on “The Mentor Blog”

We continue to post new items daily on our blog – “The Mentor Blog” – for 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:

– What is Corporate Access Worth? Cost Estimates to Reach Company Reps
– Judge Rakoff Addresses Stanford Directors’ College
– NASAA: The Long-Awaited “One-Stop Filing” System for Rule 506 Notice Filings
– SEC Cops Don’t Need Guns, Badges on Their Beat
– CEO Succession Study: Fewer CEOs Are Being Forced Out

– Broc Romanek

July 29, 2010

Say-on-Pay Solicitation Playbook: Practical Guidance on Strategies and More

I just finished writing a special July-August issue of The Corporate Counsel entitled “Say-on-Pay Solicitation Playbook: Practical Guidance on Strategies and More.” You will need this issue to help you prepare for mandatory say-on-pay. It includes analysis on:

– A Wake-Up Call: The Big Three
– The Drill Down: Why Did Shareholders Reject Motorola, Occidental and KeyCorp?
– The Cry for Shareholder Engagement: What is “Shareholder Engagement”?
– The Roadmap: How (and When) to Engage Effectively
– Overcoming Reg FD Concerns about Engagement
– Peeking Under the ISS Hood
– How Proxy Advisors & Major Institutions (& Employees) Vote on Pay
– The Roadmap: “When” and “How” to Hire a Proxy Solicitor
– The Preliminary Vote Count Looks Close: What Can You Do?
– Confidential Voting Policies: Proper Implementation
– How to Calculate Voting Result Percentages: Read Your Bylaws (and Compare with Your Proxy)
– The Importance of Making Your Compensation Disclosure “Usable”
– How to Gear Up for Mandatory Say-on-Pay

Act Now: To have this issue sent to you, try a “Half-Price for Rest of ’10 no-risk trial today.

Dodd-Frank: Why There Might Be So Many Technical Issues

The excerpt below from a Gibson Dunn email does a nice job of explaining how the process leading to the passage of Dodd-Frank may have created more implementation issues compared to a “normal” bill:

As we move into the implementation phase of this legislation, one point to bear in mind is how many technical — and not so technical — issues and problems we will discover in this 2,300 page bill. One reason for the likely surfeit of problems, ironically, is the manner in which the conference on the bill was conducted. Normally, the vast majority of the work done in conference is accomplished behind closed doors, with staff toiling over language and checking each-other’s work.

The conference on the Dodd-Frank bill, in contrast, was open and televised, and the “work” was done by members, on the fly, with little time or ability for anyone to check their work. In a sense, the conference was much like a committee mark-up, where amendments are added through a process that is often loosely-structured due to the expectation that problems can be cleaned up on the floor or in conference. When a conference is conducted in this manner, you create a remarkably transparent process, but there is little or no opportunity after the fact to clean up errors and identify unintended consequences prior to enactment. And Congress was using live ammunition.

Another consequence of the transparent, free-flowing conference process was that more issues than one might normally expect were committed to regulatory discretion. In the absence of quick consensus, decisions on thorny issues were deferred for regulatory consideration. It has been oft noted that nearly 250 regulations and 70 studies are required by the Act.

Two results of the conference logically follow. First, agencies will grapple with hundreds of thorny issues that Congress could not or chose not to decide and also attempt to clean up and rationally interpret errors or ambiguities in the legislative text through regulations. Second, Congress (and Chairmen Frank and Dodd indicated as much during conference deliberations) is likely to take up a technical corrections bill some time in the coming year. Of course, if that bill comes up in 2011, it will do so without Senator Dodd, who is retiring.

Dodd-Frank: A Look Behind the Scenes of How It Got Passed

This recent Washington Post article tells the story about how key lieutenants behind scenes ensured passage of Dodd-Frank. It’s worth reading…

– Broc Romanek

July 28, 2010

SEC Offers “Comment Letter” Field Day – But Also Limits Staff Meetings

Yesterday, SEC Chair Schapiro announced that the SEC would go the extra yard ahead of its blistering rulemaking schedule and start accepting comments on its various projects right away through this Dodd-Frank comment page. The comment letter page is broken up by the Titles in the new legislation, with 31 separate areas for comment, including a section under Title IX which covers the governance and executive compensation provisions. Each rulemaking will have its own comment period as usual – and as required by the Administrative Procedures Act – but this “field day” may help to shorten the comment periods and get rules in place before next year’s proxy season.

Perhaps even more important is the SEC’s “newly-established best practices when holding meetings with interested parties,” which include:

– Staff will try to meet with any interested parties seeking a meeting. When the number of requests exceeds availability, the staff will seek out parties with varying viewpoints. Staff may have to limit the number of meetings with similarly situated parties and will limit multiple meetings with the same party.

– Staff will reach out as necessary to solicit views from affected stakeholders who do not appear to be fully represented by the developing public record on a particular issue.

– Staff will ask those who request meetings to provide, prior to the meeting, an agenda of intended topics for discussion. After the meeting, the agenda will become part of the public record.

– Meeting participants will be encouraged to submit written comments to the public file, so that all interested parties have the opportunity to review and consider the views expressed.

Given the level of rulemaking the Staff has on its plate, time management is of the essence and these “best practices” should help curtail wasteful meetings where the same points are made over and over again (and problems are identified but no solutions are proposed).

It will be interesting to see if this transparency works to reduce the number of requests for meetings given the mass media’s recent fascination with “who is lobbying the regulators.” The NY Times ran this front-page article today on the topic.

Corp Fin Extends Its New CDIs to the Asset-Backed Market

Yesterday, Corp Fin reissued a bunch of the CDIs that were issued last week to update them to include their applicability to the asset-backed market reflecting the Ford Motor Credit no-action letter that was issued later in the day after the interps first came out.

Here’s how badly I need a vacation – and gives you a window into the journalism process over here. I first became aware of this change when I saw that the new CDIs showed up in Corp Fin’s “Outdated or Superseded Compliance and Disclosure Interpretations.” Yes, confusing – but what makes me chuckle is that I kept humming Roberta Flack’s “Killing Me Softly“…vacation coming up soon…

Webcast: What You Should Be Doing Now

Ahead of our package of two full-day Conferences on the executive pay provisions of the Act – coming up in less than two months, catch tomorrow’s special pre-conference webcast to help you start taking the actions you need to be taking now. Dave Lynn, Mark Borges and Mike Kesner headline this webcast: “The New Pay Legislation: Action Items.”

Only Conference Attendees: If you are not yet registered for the Conferences (either the package of the “5th Annual Proxy Disclosure & 7th Annual Executive Compensation Conference” – or the “18th Annual NASPP Conference”), register now so you won’t miss this critical webcast!

– Broc Romanek

July 27, 2010

Action Items: Summer Issue of Compensation Standards

Anticipating the passage of the Dodd-Frank Act, Dave Lynn just put the finishing touches on a special “Summer 2010″ issue of Compensation Standards that lays out a number of action items that you should be considering now to comply with the new executive compensation provisions in the Act. This print newsletter is a part of a membership; try a “Rest of ’10 for Half-Price” no-risk trial to gain immediate access to this issue.

Even More Guidance: Ahead of our package of two full-day Conferences on the executive pay provisions of the Act – coming up in just two months – we have just announced a special July 29th pre-conference webcast to help you start taking the actions you need to be taking now. Dave Lynn, Mark Borges and Mike Kesner headline this webcast: “The New Pay Legislation: Action Items.”

If you are not yet registered for the Conferences (either the package of the “5th Annual Proxy Disclosure & 7th Annual Executive Compensation Conference” – or the “18th Annual NASPP Conference”), register now so you won’t miss this critical webcast!

And don’t forget Mark Borges’ “Proxy Disclosure Blog” on, where Mark has been posting analysis daily about the new executive pay provisions of Dodd-Frank.

Governance Rating Merger of Equals: The Corporate Library & GMI

Last Thursday, The Corporate Library and GovernanceMetrics announced they had suddenly merged. Neither of the entity’s products or services (or names) will change – as noted in these FAQs – even their principal places of business will continue to be separate, New York City for GMI and Portland, Maine for TCL. TCL’s CEO Richard Bennett becomes CEO of the combined entity; GMI’s CEO Howard Sherman becomes the Executive Director.

Definition of “Securities”: SEC Staff Believes “Life Settlements” Included

Last week, the SEC’s Life Settlements Task Force (a “cross-Divisional” body created a year ago) released this report recommending that life settlements be clearly defined as “securities,” including recommending that the Commission itself should:

– Consider recommending to Congress that it amend the definition of security under the federal securities laws to include life settlements as securities
– Instruct the Staff to continue to monitor that legal standards of conduct are being met by brokers and providers
– Instruct the Staff to monitor for the development of a life settlement securitization market
– Encourage Congress and state legislators to consider more significant and consistent regulation of life expectancy underwriters

– Broc Romanek

July 26, 2010

Corp Fin Issues “Accredited Investor” CDI

On Friday, Corp Fin issued a new CDI 179.01 (as well as an identical CDI 255.47) regarding the situation where mortgage indebtedness may exceed the value of a primary residence (you may recall that the withdrawn CDI on Thursday also related to accredited investors due to a conflict with Section 413(a) of Dodd-Frank). The new CDI reads:

Question: Under Section 413(a) of the Dodd-Frank Act, the net worth standard for an accredited investor, as set forth in Securities Act Rules 215 and 501(a)(5), is adjusted to delete from the calculation of net worth the “value of the primary residence” of the investor. How should the “value of the primary residence” be determined for purposes of calculating an investor’s net worth?

Answer: Section 413(a) of the Dodd-Frank Act does not define the term “value,” nor does it address the treatment of mortgage and other indebtedness secured by the residence for purposes of the net worth calculation. As required by Section 413(a) of the Dodd-Frank Act, the Commission will issue amendments to its rules to conform them to the adjustment to the accredited investor net worth standard made by the Act.

However, Section 413(a) provides that the adjustment is effective upon enactment of the Act. When determining net worth for purposes of Securities Act Rules 215 and 501(a)(5), the value of the person’s primary residence must be excluded. Pending implementation of the changes to the Commission’s rules required by the Act, the related amount of indebtedness secured by the primary residence up to its fair market value may also be excluded. Indebtedness secured by the residence in excess of the value of the home should be considered a liability and deducted from the investor’s net worth. [July 23, 2010]

One member emailed me wondering whether, as part of the subscription agreement, folks are going to start requiring home appraisals to determine fair market value? And Joe Wallin in his “Startup Company Blog” poses another question that has arisen with the new accredited investor definition (his second query is addressed in the new CDI)…

80% of Pay Unmerited: Feinberg’s Final Bankers Compensation Report

Everybody is kung fu fighting. Quirky I know, but I couldn’t shake that song in my head as I read this NY Times’ front-page article on Friday about Special Master Ken Feinberg’s report about how 17 financial companies paid a total of $1.58 billion in executive compensation during the heart of the economic crisis. I probably should have been singing “Rich Girl” instead. Looking at the Special Master’s web page, I guess this is all there is – a 3-page report.

For the most part, Feinberg didn’t “name names” and his power is fairly limited since 11 of the 17 companies have repaid their TARP funds. Feinberg had conference calls with each of the companies over the past few weeks to lay out his proposals about how their compensation structures could be “fixed” – but as this WSJ article notes: “None of the firms contacted Friday said they would adopt the proposal on its face, with most saying they needed to study it, receive more detail or declining to comment. Others pointed out that they have already instituted similar procedures designed to claw back undue compensation.”

You Want More Change? How About Shareholder Approval of Political Contributions?

This morning, I posted a blog on our “Proxy Season Blog” about new state bills that would require shareholder approval of political contributions, as well as some Congressional efforts in this area.

The heat is rising here as the House Financial Services Committee will meet in open session tomorrow (and possibly subsequent days) to consider, among other things, H.R. 4790, the “Shareholder Protection Act of 2010.” This bill was introduced in the House on March 9th. This bill would require shareholder approval, disclosure and board approval of political contributions. This type of bill has gotten floated regularly over the past decade – but some real legislative movement is more probably post-Citizens United

– Broc Romanek

July 23, 2010

Dodd-Frank: Corp Fin Adds Six CDIs (& Withdraws One Too)

Yesterday, Corp Fin added six new ’33 Act CDIs to address the repeal of Rule 436(g) situation that I blogged about yesterday. The new CDIs essentially apply to the corporate debt market and are consistent with the white paper released by ten major firms yesterday, as they address the circumstances where rating agency consents are – and are not – required (ie. required for registration statements and prospectuses; not required for free writing and in certain MD&A liquidity discussions).

The new CDIs are:

198.08 (grandfathered debt registration statements)

In addition, now-former CDI 255.13 was withdrawn, as it provided that an investor may include the estimated fair market value of their principal residence as an asset for purposes of Rule 501(a)(5). The withdrawal was necessary to be consistent with Section 413(a) of Dodd-Frank.

Dodd-Frank: Corp Fin’s No-Action Relief for the Asset-Backed Market

Early yesterday, Corp Fin Director Meredith Cross issued this statement regarding relief for the asset-backed market:

The SEC has been reviewing the interaction between the requirements for registered asset-backed securities offerings provided in “Regulation AB” and the requirement that issuers now obtain credit rating agency’s experts consent for use in filings, as is the case with other ‘experts.’

Within the next day, the Division of Corporation Finance expects to issue a ‘no action’ letter allowing issuers for a period of 6 months to omit credit ratings from registration statements filed under Regulation AB. Although there are currently few issuers in the registered asset-backed securities market, we understand from some issuers that they cannot currently obtain credit rating agency consent to include the credit ratings in these ‘Reg AB’ filings. This action will provide issuers, rating agencies and other market participants with a transition period in order to implement changes to comply with the new statutory requirement while still conducting registered ABS offerings.

As is more fully explained in interpretations issued by the Division of Corporation Finance today, the current rules for corporate debt issuances differ in this respect – and we believe that the corporate debt market has not been, and should not under current rules be, meaningfully affected by the statutory change.

Corp Fin did better than the “next day” and issued the no-action relief yesterday to Ford Motor Credit Company. By the terms of this no-action letter, “the Division will not recommend enforcement action to the Commission if an asset-backed issuer as defined in Item 1101 of Regulation AB omits the ratings disclosure required by Item 1103(a)(9) and 1120 of Regulation AB from a prospectus that is part of a registration statement relating to an offering of asset-backed securities.” The Staff’s position expires for offerings commencing with an initial bona fide offer on or after January 24, 2011.

Photo: Devastation After the 3.6 Earthquake in DC

If you haven’t heard, I awoke last Thursday at 5 am, experiencing the first earthquake in my life – here in DC! Below is a scene of the damage caused in the area that has been making the rounds; warning, it is pretty graphic:


– Broc Romanek

July 22, 2010

Dodd-Frank Signed: Let the Unintended Consequences Begin

Yesterday, President Obama signed the Dodd-Frank Act into law (signed, sealed & delivered). And the first major unintended consequence took place as the coming repeal of Rule 436(g) wreaked havoc on the US debt market (the repeal takes effect today).

Rule 436(g) allows the use of credit ratings from NRSROs without a consent (technically, it provides an exemption from the consent requirement). This repeal could be a disaster for debt, preferred securities and asset-backed offerings. For example, this hurts asset-backed deals since Regulation AB requires disclosure of ratings if the offering is conditioned upon a rating – as all are – and the rating agencies have all said they will not furnish consents for the time being. So this could mean that all ABS deals will need to be done on a Rule 144A basis for now.

Fortunately, the news is less grim outside the ABS space. Late yesterday, ten major firms signed this “White Paper” (sent along by Davis Polk) which sets forth approaches – after consulting the Corp Fin Staff – that they believe are appropriate when using NRSRO ratings in offerings of debt and preferred securities. Under the approaches in the white paper, there should not be significant disruptions in the non-ABS debt and preferred stock markets. More to come on this…

Dodd-Frank: What Does the “Enactment Date” Mean?

Unlike the Sarbanes-Oxley Act, which snuck up on the corporate community in comparison (see my blog on that), numerous firms sent out emails yesterday to note the event. For example, Mayer Brown gives us this meaning of the “enactment date”:

The Act’s “date of enactment” – which is the key date for determining dozens of delayed effective dates and deadlines under the Act – is Wednesday, July 21, 2010. The Act generally takes effect on Thursday, July 22, except that many provisions will not take effect for a year or more and many will require implementing regulations to be issued.

And Weil Gotshal gives us this “big picture”:

Today, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act, making this package of financial regulatory reforms the largest such initiative in scope and depth since the New Deal. The legislation includes 15 major parts with 14 stand-alone statutes and numerous amendments to the current array of banking, securities, derivatives, and consumer finance laws. The legislation will significantly restructure the regulatory framework for the US financial system, with broad and deep implications for the financial services industry where the crisis started; however, its impact will be felt well beyond the financial sector. Aspects of the legislation have the potential to affect all public companies by extending federal regulation of corporate governance. In addition, some of the provisions will affect the US operations of foreign companies as well as global transactions involving US-based businesses, assets, and financial instruments.

We’ve got loads of scorecards, charts and memos in our “Dodd-Frank Act” Practice Area – and adding dozens each day…

Poll Results: What is Dodd-Frank’s Nickname?

The fun is just beginning with this new legislation and I’m already going batty. For example, I’m walking around throwing new colloquialisms such as “What in the Dodd-Frank?” and “Where in the Dodd-Frank do you think you’re going?” Anyways, below are the results from my recent poll about what you thought the acronym for the Dodd-Frank Act should be:

– Drunk Act – 12%
– Donk Act – 17%
– Dork Act – 19%
– Frodd Act – 24%
– Re-Sox – 8%
– DFA – 16%
– Doddy-Frankie Goes to Hollywood Act – 9%
– What me worry? – 11%

My hunch is folks will just call it “Dodd-Frank.” But you never know…

– Broc Romanek

July 21, 2010

Dodd-Frank: Clarifying the “Accredited Investor” Definition

Even before Dodd-Frank is signed into law, a number of issues have arisen about how to interpret the statute. One area where members have sent in a variety of questions is Section 413 and the new definition of “accredited investor.” Alan Parness of Cadwalader reports on the first Staff oral guidance regarding this new test:

For those of you who may still be puzzled by the change to the net worth standard for accredited investors effected by Section 413 of the Dodd-Frank Act, Gerry Laporte, Chief of the Office of Small Business Policy of the SEC’s Division of Corporation Finance, has confirmed that it is the Staff’s view that the exclusion of a primary residence from an investor’s net worth for purposes of the accredited investor test in Rule 501(a)(5) of SEC Reg. D (as well as for purposes of the identical test in Rule 215(e) under the 1933 Act) will be effective upon enactment of the law.

There is no transition period, nor is grandfathering permitted by Section 413, and, accordingly, issuers relying on the definition of “accredited investor” in Regulation D or in Rule 215 in order to effect sales to accredited investors after enactment, should revise their disclosure and subscription documents in anticipation that the Act will be signed into law within the next several days.

FASB Releases Proposal on Disclosure of Certain Loss Contingencies

Yesterday, the FASB released an Exposure Draft regarding its proposal related to disclosure of loss contingencies (ie. former FAS 5; now known as “ASC Topic 450”). As noted in this blog, this project has been on a fast-track – but the Exposure Draft is out a few months later than expected. There is a 30-day comment period – pretty short for such a controversial topic, but the FASB already has heard a lot of commentary about this hot potato.

For public companies, the standards would be effective for fiscal years ending after December 15, 2010 and interim and annual periods for subsequent fiscal years. Also, nonpublic companies would not be required to provide tabular reconciliations of accrued loss contingencies. Note that nonpublic companies are covered by the proposed loss contingencies standards, but the standards would not be effective for them until the first annual period beginning after December 15, 2010 and interim periods of fiscal years after the first annual period (would not be required to provide tabular reconciliations of accrued loss contingencies).

Overcoming the Challenges: Integration Issues & Merger of Equal Issues

Tune in tomorrow for the webcast – “Overcoming the Challenges: Integration Issues & Merger of Equal Issues” – to hear Wally Bardenwerper of Towers Watson, Chris Cain of Foley & Lardner, Stephen Glover of Gibson Dunn and Jessica Kosmowski of Deloitte Consulting discuss how to overcome the challenges of deal integration as well as factors you should consider when negotiating a merger of equals to ease the transition afterwards. Please print off these course materials in advance.

Cool Old-Timey Video: Having grown up in Chicago, I dig this video from 1948 showing the city at its best…

– Broc Romanek

July 20, 2010

Survey Results: Annual Meeting Conduct

We have posted the results from our recent survey regarding annual meeting conduct, repeated below:

1. To attend our annual meeting, our company:
– Requires pre-registration by shareholders – 5.9%
– Encourages pre-registration by shareholders but it’s not required – 13.2%
– Requires shareholders to bring an entry pass that was included in the proxy materials (along with ID) – 5.9%
– Encourages shareholders to bring an entry pass but it’s not required – 11.8%
– Will allow any shareholder to attend if they bring proof of ownership – 57.4%
– Will allow anyone to attend even if they don’t have proof of ownership – 33.8%

2. During our annual meeting, our company:
– We hand out rules of conduct that limit each shareholder’s time to no more than 2 minutes – 20.9%
– We hand out rules of conduct that limit each shareholder’s time to no more than 3 minutes – 26.9%
– We hand out rules of conduct that limit each shareholder’s time to no more than 5 minutes – 4.5%
– We announce a policy that limits each shareholder’s time to no more than 2 minutes (but rules are not handed out) – 7.5%
– We announce a policy that limit each shareholder’s time to no more than 3 minutes (but rules are not handed out) – 3.0%
– We announce a policy that limit each shareholder’s time to no more than 5 minutes (but rules are not handed out) – 0%
– There is no limit on how long a shareholder can talk (subject to the inherent authority of the Chair to cut off discussion at any time) – 37.3%

3. For our annual meeting, our company:
– Provides an audio webcast of the physical meeting, including posting an archive – 25.0%
– Provides an audio webcast of the physical meeting, but does not post an archive – 7.4%
– Has provided an audio webcast of the physical meeting in the past, but discontinued that practice – 1.5%
– Is considering providing an audio webcast of the physical meeting but haven’t decided yet – 4.4%
– Provides a video webcast of the physical meeting (or is considering doing so) – 1.5%
– Does not provide an audio nor a video webcast of the physical meeting – 60.3%

4. At our annual meeting, our company:
– Announces the preliminary results of the vote on each matter (unless special circumstances arise such as a very close vote) – 92.7%
– Doesn’t announce the preliminary results of the vote on each matter – 7.4%

Please take our new “Quick Survey on More on Compensation Committees and Compensation Consultants.”

Size Doesn’t Matter: SEC Targets Small, Newly Formed Public Companies in Their Crusade

The title of this McGuire Woods memo grabbed me, highlighting how the SEC’s new Foreign Corrupt Practices Act unit has made clear that newly public companies doing business overseas will be held to the same compliance standards as larger and more established public companies.

But this is just the tip of the iceberg as the SEC’s Enforcement Division has been implementing its new series of initiatives over the past six months, as illustrated in this Gibson Dunn memo. Perhaps best reflecting the SEC’s newfound willingness to be tough on fraudsters is this recent speech from SEC Commissioner Luis Aguilar about his desire for more D&O bars.

More on “The Mentor Blog”

We continue to post new items daily on our blog – “The Mentor Blog” – for 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:

– An Open Issue in Europe: Confidentiality of Communications with In-House Lawyers
– Survey: What Keeps Your Board Up at Night?
– Vendors Lacking In Experience: The White Paper
– Security Risks with Digital Copiers, Etc.
– SEC Enforcement Action Demonstrates Potential Risks of “Flash” Reporting

– Broc Romanek

July 19, 2010

Corp Fin: Big Changes Afoot

With a year under her belt, Corp Fin Director Meredith Cross announced a flurry of changes on Friday. For starters, these three new offices within Corp Fin are being created, as noted in this press release:

Office of Capital Market Trends – A brand new office that will review new securities products and capital markets trends and develop recommendations for changes to the securities offerings rules.

Office of Structured Finance – The reviews of asset-backed filing are being pulled out of Max Webb’s AD group and placed into this new unit; this office will also handle policy issues related to ABS.

Office of Financial Services – Another brand new office that will review filings from investment banks, investment advisors and the largest banks through more continuous and direct interaction with them and by working with other Divisions within the SEC – this new office likely will be more accounting-focused than a typical operations group. Todd Schiffman’s AD group will continue to review filings made by smaller financial institutions.

In addition, Paula Dubberly was promoted to Deputy Director (Policy and Capital Markets). Paula will oversee the top two new offices noted above, as well as continue to oversee the Office of Rulemaking. With many rulemakings coming up in a short period of time under the Dodd-Frank Act, it’s gonna be busy down there…

Recently, SEC Chair Schapiro delivered a speech that included remarks about “revising risk disclosure requirements” and then “possibly changing filing formats so that basic information can be more easily digested by investors and updated by companies.” So it’s possible that the new Office of Capital Markets will be working towards a dramatic restructuring of the SEC’s disclosure and filing requirements, a challenging project that has been discussed for quite some time in Corp Fin – but hasn’t gotten much headway due to all the other regulatory demands that the past decade has laid at the SEC’s feet.

Now Available: The “Final” Dodd-Frank Act

As I blogged last week, the Dodd-Frank Act was somewhat of a moving target even after conference reconciliation was completed. It appears that this may be the final version of the Act, although note that the Table of Contents doesn’t always conform to the text of the Act. Also now available is the printed version of the Act’s Conference Report, with a “Joint Explanatory Statement of the Committee of Conference” that begins on page 865.

Webcast: Exploring the New World of Web Disclosure

Tune in tomorrow for our webcast – “Exploring the New World of Web Disclosure” – to hear Bill Haney of Thomson Reuters, Dominic Jones of IR Web Report, Mike Marron of Expedia and Demo Skalkotos of Nasdaq OMX discuss how companies are evolving their use of the Web and social media, including the recent announcements from Thomson Reuters and Nasdaq OMX to offer “web disclosure” platforms for their IR web page clients. Please print these course materials before the program.

– Broc Romanek