Yesterday, as noted in this NY Times article, the US Senate voted 60-39 passing the conference report version of the Dodd-Frank Act. Three Republicans voted for the legislation, which was supported by all but one of the Senate Democrats. In our “Dodd-Frank Act” Practice Area, we continue to post numerous memos on the various provisions of the Act – including this condensed 605-page version of the Act itself (no easy feat given that it’s a 75% reduction – can’t help but think of George’s “shrinkage” episode from Seinfeld).
Last week, Corp Fin posted an updated “Financial Reporting Manual,” with changes made for issues related to Regulation S-X Rule 3-01, Rule 3-05, and Article 11, as well as general partner financial statements, and other changes.
Humor in the Goldman Sachs Settlement
A humorous moment before yesterday’s Goldman settlement news conference down at the SEC, which was available via webcast: During the sound check – which could be heard online (but the video feed wasn’t on yet) – the dude doing the soundcheck said “won’t everyone be surprised when they hear the press conference is for another set of new proxy rules.” I laughed my tail off. A joke that only us Corp Fin types could understand.
Anyways, here is Kevin LaCroix’s analysis of the Goldman settlement, including noting that the “record” nature of what Goldman paid is about semantics and context (ie. largest-ever penalty paid by a Wall Street firm).
For a little more Friday humor, check out this video on the European financial crisis.
Yesterday, after an open Commission meeting, the SEC issued this 150-page concept release (double-spaced) regarding proxy mechanics, etc. Here’s the related press release – and Chair Schapiro’s opening statement. There is a 90-day comment period – and we should expect a large number of comments on a wide variety of topics given the complexity of some of the issues. The existing voting framework is a labyrinth that is difficult to untangle – so there is much work to be done. For a refresher about what a concept release really is, see my blog from last week…
Director Resignations as a Risk Factor
As happens more often than you would think in the blogosphere, Nell Minow beat me to the punch in blogging about an interesting new article. Below is what Nell blogged in The Corporate Library Blog:
Kevin LaCroix has an important piece in his D&O Diary Blog on unexpected director resignations as a leading indicator of risk. It “increases the probability of a securities class action lawsuit filing by 31 percent to 35 percent, with the likelihood increasing as firm size increases; if a company’s stock and accounting performance were poor in the prior year’ and if the firm raised relatively more external financing in the prior year.” According to a copyrighted March 2010 paper titled “The Dark Side of Outside Directors: Do They Quit When They Are Needed Most?” by Rüdiger Fahlenbrach of the Ecole Polytechnique Fédérale de Lausanne, Angie Low of the Nanyang Technological University and René Stultz of Ohio State University:
Among other things, a company with a surprise outside director departure has a “significantly higher likelihood of being named in a federal class action securities fraud lawsuit.” The study’s authors call this risk of future adverse events following a director’s departure the “dark side of outside directors.”…[O]utside directors have “incentives to leave when they anticipate that the firm on whose board they sit will perform poorly and/or disclose adverse information.”
“At a minimum,” LaCroix concludes, “the authors’ analysis suggests a potentially important new underwriting criterion.”
Social and Environmental Shareholder Proposals
In this podcast, Michael Passoff of As You Sow discusses the organization’s “2010 Proxy Preview” as well as the current trends in social and environmental shareholder proposals, including:
– Why was the proxy preview written?
– What were the major social and environmental shareholder proposals this year?
– Any surprises in the votes so far this year?
– Do you have any recommendations for companies that receive a social or environmental shareholder proposal?
Here is something I blogged yesterday on CompensationStandards.com’s “The Advisors’ Blog“:
Published in the Federal Register last week, the FAA recently issued a proposal to revise its broad prohibition on pro rata reimbursement for the cost of owning, operating and maintaining a company plane when used for routine personal travel by executive officers under certain conditions. I’m far from being a FAA expert – but I believe this change, if approved, would permit greater flexibility for companies to seek and accept reimbursement from executives for their personal use of the corporate jet.
Given the affinity for private plane use – and officer distaste for disclosure about this practice – my bet is that executives would jump at the opportunity to do this, particularly if the money that executives paid was “replaced” in some way. The upshot is we may well see fewer perk disclosures for personal plane use in the not-so-distant future…
Here are other entries from “The Advisors’ Blog” over the last week – sign up to get these pushed out to you daily on the left side of the blog:
– Executive Compensation: Someone’s Doing It Right
– Study Update: Long-Term Incentive Trends from ’08-’10
– Principles for Tying Equity Compensation to Long-Term Performance
– A “Wall Street Pay” Microblog
– CEO Pay For All Company Sizes
Privacy Gaffes: Massachusetts Securities Division Joins the Party
There are so many privacy breaches these days that they are too innumerable to count. Now, the Massachusetts Securities Division joins the list as noted in this news from Alan Parness of Cadwalader:
While the exact nature of what occurred is somewhat obfuscated by a heading titled “Important Information in connection with the recent notice to Massachusetts Registered Broker-Dealer Agents and Investment Adviser Representatives” on the MA Securities Division’s website, apparently the Division, in response to a FOIA-type request from an Internet-based investment adviser compliance service company, sent the company a CD-ROM with the residential addresses and social security numbers of all broker-dealer agents and investment adviser representatives registered with the Division. Here’s the full notice concerning this gaffe from the Division’s website.
As you will note, the Division is not volunteering to pay for credit monitoring, presumably based on the written assurances received from the service company that the CD-ROM was returned to the Division and that no files were retained. While I have no reason to disbelieve the service company, and I don’t pretend to be an expert on the MA security breach law, query whether the state would be so forgiving or understanding if a registered broker-dealer or investment adviser committed a similar blunder with its records concerning clients in MA, and received similar assurances from the recipient of those records? In this regard, note that the MA security breach law – Mass. Gen. Laws ch. 93H – is not administered by the Division, but by the state’s Office of Consumer Affairs and Business Regulation and the state Attorney General; here’s the OCABR’s rules under ch. 93H (which conveniently exclude as a “person” subject to filing security breach reports under the law any agency, etc., of the state).
You may also want to peruse this Boston Globe article, including the reader comments which follow the article as some are amusing.
PCAOB Proposes New Auditing Standard Regarding Confirmation
Yesterday, the PCAOB proposed an audit standard regarding Confirmation that is drafted to strengthen the requirements under the existing standard, AU sec. 330, including more explicitly incorporate consideration of the risk of material misstatement due to error or fraud into the selection, design, and performance of confirmation procedures. Here is the proposing release.
Congress is back from vacation. As noted this article, the Senate is close to getting the 60 votes needed to get past a potential Republican filibuster and get the Dodd-Frank Act to President Obama for enactment. For every day there is a delay, it will be that much harder for the SEC to adopt rules timely ahead of the 2011 proxy season.
How much rulemaking can we expect? According to the nifty chart on page ii of this Davis Polksummary of the Dodd-Frank Act (a memo that preceded this WSJ article), a total of 11 regulators are committed to make 243 rulemakings, 67 studies and 22 new periodic reports under the Act. The SEC itself will be required to conduct 95 of those rulemakings, 17 studies and 5 new periodic reports. Ouch…
One member astutely observed how changes were being made to the Dodd-Frank Act when Congress was last in session two weeks ago – in the midst of which, the House passed the Act. The member posed the question – which version of the Act did the House actually vote upon? And if there were subsequent changes to the Act, will the House need to vote again? I don’t know the answers to these – anyone out there know?
Webcast: Evolving Insider Trading Policy and 10b5-1 Plan Practices
Tune in tomorrow for the webcast – “Evolving Insider Trading Policy and 10b5-1 Plan Practices” – to hear Alan Dye of Hogan Lovells LLP and Section16.net, Dave Lynn of TheCorporateCounsel.net and Morrison & Foerster, Sue Morgan of Perkins Coie and Ron Mueller of Gibson Dunn discuss the nuts and bolts of the latest developments related to insider trading policies and Rule 10b5-1 plans practices and procedures.
PCAOB Staff Alert: Work of Other Auditors or Engaging Outside Assistants
Yesterday, the PCAOB issued Staff Audit Practice Alert #6 prompted by observations from PCAOB inspections that some US-based firms issuing audit reports based on work performed by others outside the US are not properly applying PCAOB standards.
Two examples in the PCAOB’s Alert relate to Chinese issuers, which is notable given that I hear that Chinese companies registered in the Caribbean are the single largest group of foreign companies piling into the US capital markets lately. The Alert raises a question as to how regulators (SEC, PCAOB or state boards of accountancy) can discipline auditors in situations such as those described the Alert given the difficulty of asserting jurisdictions in these cross-border scenarios…
Below are the results from a recent survey we conducted on the topic of code of ethics and the board:
1. Which board committee typically reviews (and approves) your company’s Code of Ethics policy:
– Corporate Governance committee – 57.9%
– Audit committee – 31.6%
– Compensation committee – 0.0%
– Compliance committee – 0.0%
– Other board committee – 2.6%
– No board committee – 7.9%
2. Which board committee “enforces” (or handles complaints related to) the business conduct provisions of your company’s Code of Ethics such as confidentiality, use of corporate assets, etc.:
– Corporate Governance committee – 31.6%
– Audit committee – 68.4%
– Compensation committee – 0.0%
– Compliance committee – 0.0%
– Other board committee – 2.6%
– No board committee – 0.0%
3. Our company has a separate Code of Ethics – one for our senior financial officers and a separate one for all our employees:
– Yes, they are separate – 16.2%
– No, there is only one Code that applies to both senior financial officers and all employees – 83.8%
4. Our company has a separate Code of Ethics – one for our Board of Directors and a separate one for our employees:
– Yes, they are separate – 13.2%
– No, there is only one Code that applies to both directors and employees – 86.8%
5. When it comes to the Code of Ethics that applies to our directors, our Board:
– Is required to sit through actual ethics training – 18.4%
– Is offered an ethics training class if they wish to sit through it – 15.8%
– Just gets copies of the Board’s Code of Ethics – 65.8%
Yesterday, I was surprised to see this lengthy article in the Washington Post analyzing the PCAOB’s tenure so far. My surprise had more to do with a mainstream newspaper choosing this topic than what was in the piece. The article itself is pretty comprehensive and hits most of the marks (one item it doesn’t cover enough is how much the PCAOB is beholden to the SEC and how that may hamstring how it operates).
Speaking of marks, in the article, Lynn Turner is quoted as giving the PCAOB a “B” for inspections, a “D-plus” for standard setting and an “F” for enforcement. When the PCAOB was born, I was concerned that the PCAOB would overly extend the SEC’s enforcement capabilities and efforts. Here is an excerpt from the WaPo article on what has actually transpired:
In the realm of enforcement, the PCAOB shares powers with the SEC and was intended to bolster the SEC’s policing efforts. But Turner, the former SEC official, said the board may have the opposite effect. Because PCAOB investigations unfold in secret, audit firms “are much better off if the action is brought by the PCAOB where it can be kept under wraps, slowed down and dragged out without anyone knowing anything whatsoever about it,” Turner said by e-mail. The board’s acting chairman made a similar point in recent testimony, saying the law gives auditors “an incentive to litigate, rather than settle, in order to delay any adverse publicity.”
So far, the board has issued 31 disciplinary orders, some of which send mixed messages. After the chairman of a computer services company in India confessed to inflating profits for several years and overstating a cash balance by $1 billion, two auditors affiliated with PricewaterhouseCoopers allegedly failed to cooperate with a PCAOB investigation. The board disbarred the auditors in March, about a year after it first sought their testimony.
In 2009, the board disciplined a former Deloitte & Touche auditor for misconduct that allegedly took place more than five years earlier. In another case, a BDO Seidman auditor was disbarred for allegedly backdating records to make it appear that an audit was done properly and for directing a subordinate to do the same. The auditor has since left the firm. Two years after disciplining him, the board reinstated his right to audit public companies. Carcello, the Tennessee professor, said the outcome of some cases left him wondering: “What does it take to be disbarred for life?”
Poll: Do Folks Still Refer to the PCAOB as “Peekaboo”?
As I blogged about back in 2003, the PCAOB strongly dislikes being referred to as “Peekaboo.” When I heard that way back then, I assumed the nickname died a quick death and I have only heard the PCAOB referred to as such on rare occasion. Thus, I was surprised that the WaPo’s article used the term in its subtitle. Participate in this anonymous poll and let us know what you call the PCAOB:
Recently, the European Union Parliament passed a resolution adopting a EU Commission proposal to amend the Prospectus Directive (2003/71/EC) with certain modifications. The EU Commission had started a public comment period (called a “consultation”) over a year ago and issued its proposal in September. The new Prospectus Directive attempts to simplify the disclosure requirements, provide clearer exemptions and ensure that adequate information is provided to retail investors. We have posted memos regarding this development in our “European Law” Practice Area.
True Story: Former SEC Lawyer Claims He’s LeBron’s Dad, Sues
I had to work LeBron somehow into this blog after last night’s ridiculous TV special to announce where he would play next year (long-suffering Wizards fans like me have come to dislike LeBron for his unprofessional theatrics during playoff games; I didn’t watch the “made-for-TV” event). As noted in this AmLaw article, a former SEC attorney has sued LeBron and his mother because he claims he’s LeBron James’ father. The plaintiff accuses James’s mother of engaging in a scheme with her son and their attorneys to cover up the identity of James’s real father – as a 2007 paternity test came back negative with a “0 percent probability of paternity,” as noted in this BusinessWeek article.
This is not the typical paternity suit, where a deadbeat dad is sued for child support; this is the opposite when an alleged deadbeat dad sues for recognition as the father of a celebrity. Two things to note about the plaintiff: he was 29 and LeBron’s mom was 15 when they allegedly had the tryst; and he agreed to resign from the SEC in ’02 when he was paid $230,000 to drop a second EEO complaint against the agency after working there for 19 years.
And in answer to the question I have been emailed a dozen times: no, I don’t know the plaintiff. He worked in the Division of Investment Management and although I knew folks in IM, I never heard of this guy before.
SEC Adopts “Pay-to-Play” Rules
Last week, the SEC adopted new pay-to-play rules in an effort to curtail the corrupting influence of this type of practice by investment advisers; here’s the adopting release. In his new blog covering California law developments, Keith Bishop covers some California specific issues related to the new rules.
Well, it’s really not that shocking given the huge cost (and time) savings and the fact that most of the companies holding virtual-only meetings are pretty small. But it’s shocking to me as I thought I was keeping pretty good tabs on what is happening in this space since it’s a topic I have written about for over a decade.
I just dug out a good half-dozen companies that have conducted all-virtual annual meetings this year that I didn’t know about (thus, in addition to these that I blogged about a few months ago) from inspecting this list from Broadridge. Recall that Broadridge itself held a virtual annual meeting last year, as noted in my blog here.
Note that Broadridge’s list doesn’t break out “all virtual” from “hybrid” meetings. There is a huge difference between these types of meetings as some shareholders have been fighting against companies holding “all virtual” meetings since there is no opportunity to confront management and the board in person. In comparison, hybrid meetings combine the in person experience while providing opportunity for meeting input online – the best of all worlds for shareholders who may not be able to travel. I have broken out which companies have done all virtual amidst these “FAQs on Electronic Stockholders’ Meetings” (it’s the 5th FAQ in Section A).
SEC to Consider “Proxy Plumbing” Concept Release Next Week
Next Wednesday, the SEC is holding an open Commission meeting to vote on issuing its long-awaited “proxy plumbing” concept release. It sounds like the concept release will have hundreds of questions in it for folks to ponder and comment on.
For the newbies out there: a concept release sometimes is used as the first step towards proposing rules. It is relatively rarely used (eg. just two of them in ’09 and only one so far in ’10 – see the SEC’s “Concept Release” page) as a vehicle to draw in input before rules are even drafted since it takes a long time between soliciting comment on a concept, then soliciting comment on a proposal and then finally adopting final rules. So concept releases are primarily used just for broad areas of important change – that will eventually lead to one or more major rulemakings – that can afford to have a timeline of a few years…
Lawyers Transitioning to New Non-Firm Opportunities
In this podcast, Kate Neville of Neville Career Consulting – a former corporate & securities lawyer – provides some insight into how lawyers can change their lot in life, including:
– How can attorneys who are out of work or unhappy in life transfer their skill-sets to positions outside of law firms? To other professions?
– What type of resources are available to attorneys thinking about making a career move to work outside of a firm?
– What can lawyers thinking about this do to help decide if such a change is for them and determine which options to pursue?
Recently, the DC Court of Appeals issued a decision upholding the District Court’s decision denying the IRS access to three documents relating to the tax treatment of two partnerships owned by Dow Chemical that were in the possession of Dow’s auditor, Deloitte. Two of the documents were a memorandum prepared by a Dow in-house accountant and attorney and a tax opinion prepared by Dow’s outside counsel, both of which were furnished to Deloitte in connection with the audit to verify the adequacy of the tax contingency reserve for the transactions. The Court found that these documents were attorney work product entitled to protection, as conceded by the government, and that the protection was not waived by the documents being furnished to Deloitte.
This is the first Court of Appeals decision holding that disclosure to independent auditors did not waive work product protection. The Court found that the auditor is not a potential adversary or conduit to an adversary and Dow had a reasonable expectation that Deloitte would maintain the confidentiality of the documents, relying on professional standards requiring auditors not to disclose confidential client information.
The third document was a memorandum prepared by Deloitte that summarized a meeting with Dow officials and outside counsel to discuss potential litigation over the transactions. The Court held that this memorandum could be work product protected, notwithstanding that it was prepared by the auditor, because it reflected the thoughts and opinions of counsel with respect to anticipated litigation.
The Court rejected the government’s argument that the memorandum could not be work product because it was prepared in conncection with the annual audit, adopting the generally prevailing “because of” anticipated litigation test and rejecting the “primary motivating purpose” test of the Fifth Circuit and both distinguishing the First Circuit Textron decision as based on the particular documents at issue (ordinary tax workpapers) and rejecting Textron to the extent it adopted a more stringent “prepared for use in possible litigation” test as suggested by the dissent in Textron. Because the evidentiary record was insufficient to establish that all the information in the Deloitte memorandum was work product protected, the Court remanded to the District Court to review the memorandum in camera.
The decision is also notable because the Court clearly distinguishes the Supreme Court’s decision in Arthur Young as relating solely to whether there is accountant’s work product protection and not to whether attorney work product protected information continues to be protected in the hands of the accountant. The court notes the importance of preserving this protection because “independent auditors have significant leverage over companies” since “[a]n auditor can essentially compel disclosure by refusing to provide an unqualified opinion otherwise” and waiver under these circumstances “might discourage companies from seeking legal advice and candidly disclosing that information to independent auditors.”
Nasdaq Speaks ’10: Latest Developments and Interpretations
We have posted the transcript for our popular webcast: “Nasdaq Speaks ’10: Latest Developments and Interpretations.”
Poll: What Dodd-Frank Means to Me Personally?
Although the Dodd-Frank Act certainly will mean a sea change in behavior for certain folks, it may not mean much for everyone in our community at the end of the day. Take a moment to indicate what you predict the Act means for you in this anonymous poll:
Recently, the FASB and IASB issued a joint proposed standard for a new approach to revenue recognition that would align the financial reporting of revenue from contracts with customers and related costs and create a single standard for IFRSs and GAAP that would be applied across various industries and capital markets. As noted in this joint press release, the comment period ends October 22nd, with a goal of adopting a new standard by June 2011.
As noted in FEI’s “Financial Reporting Blog” last week, the FASB and IASB announced the release of a “Staff Draft” of their upcoming Exposure Draft of significant proposed changes to financial statements, as part of the Financial Statement Project.
Accounting Convergence: FASB & IASB Update Their Progress
At the same time, the FASB and IASB issued a progress report on their convergence project, which provides details of their modified strategy to converge US GAAP and IFRS by prioritizing certain joint projects and extending the targeted completion dates for some projects beyond June 2011 into the second half of the year. We continue to post memos on this project in our “IFRS” Practice Area.
I’m loving the “Back to the Future” snafu where tweetheads went wild yesterday with thoughts of hoverboards. As noted in this blog, yesterday’s calendar date – July 5, 2010 – was alleged to be the target entered by Dr Emmett “Doc” Brown into the DeLorean time machine. But alas, it is not true. Slackers…
More on “The Mentor Blog”
We continue to post new items daily on our blog – “The Mentor Blog” – for TheCorporateCounsel.net members. Members can sign up to get that blog pushed out to them via email whenever there is a new entry by simply inputting their email address on the left side of that blog. Here are some of the latest entries:
– Study: Twitter Reduces Bid-Ask Spreads
– CalPERS Won’t Issue a Focus List After Successful Engagement
– Drafting Standing Delegations of Authority from the Board: Factors to Consider
– PIPEs: Canadian Survey
– A Self-Funded SEC: Making the Case
On June 24th, the Senate failed for a third time to pass a procedural vote which would have sent the proposed carried interest legislation (H.R. 4213) to the Senate for a full vote on the bill. Senate Majority Leader Harry Reid (D-Nev.) has announced that the Senate is moving on to other matters. Although no further action is currently pending in the Senate on the proposed carried interest legislation, it is possible (and perhaps likely) that the legislation will be re-introduced into the Senate in the not too distant future.
NYSE Regulation Transfers Its Regulatory Authority to FINRA
Effective June 14th, NYSE Regulation transferred its market surveillance and enforcement functions to FINRA. In NYSE Regulation Information Memo 10-26, the NYSE provides guidance on the effect of the transfer on existing subjects of NYSE Regulation investigations and parties to disciplinary proceedings before the NYSE Hearing Board.
“Standing Committee” Approves Major Changes to Bankruptcy Disclosure Rule
Here is news, as excerpted from this Davis Polkmemo:
On June 15th, significant amendments to Bankruptcy Rule 2019, which governs the disclosure of claims and interests held by members of certain representative entities and the parties they represent in Chapter 11 cases, cleared an important hurdle when the amendments were approved by the Committee on Rules of Practice and Procedure of the Judicial Conference, commonly known as the Standing Committee. The proposed changes to Rule 2019 (“Proposed Rule 2019”) considerably expand the scope of disclosure required, broaden the types of economic interests that must be disclosed (to include, among other things, derivatives) and clarify which groups, committees and other entities must publicly disclose those economic interests in order to actively participate in a bankruptcy case.
The Standing Committee will present Proposed Rule 2019 to the full Judicial Conference for consideration at its September 2010 meeting. If the Judicial Conference approves the changes, it will then present Proposed Rule 2019 to the Supreme Court, which will meet in April 2011 to consider the amendments, and finally, absent a Congressional veto, the proposed changes will become effective on December 1, 2011.