July 20, 2012

The Meaning of a SEC Signature: Will the Real CEO Please Stand Up?

Who would ever think that signing a SEC filing would ever become an issue in a Presidential campaign? That’s what has happened as Mitt Romney states that he wasn’t actively managing Bain Capital during a period when he signed at least 6 filings, according to this Huffington Post article. As noted in this article by “The Nation,” former SEC Chair Harvey Pitt has been leading the charge defending Romney – and this NY Times article tries to hash out the timeline of Romney’s activities during the period in question. But the purpose of this blog isn’t to wade into that debate. For one, I am not a ’40 Act lawyer (I hear this type of thing is common in the ’40 Act world – but I don’t know if that’s true nor if it’s lawful just because others do it).

Rather, I mention it to make a comparison with the rules for public operating companies (ie. those that file Form 10-Qs and 10-Ks under the ’34 Act) to those that apply to private equity funds. I think that it would be problematic if someone was listed as the CEO – for example, under Item 401 of Regulation S-K in a proxy statement or 10-K – but they weren’t. A related – but perhaps distinct – issue relates to someone signing a ’33 or ’34 Act filing as a CEO when they really weren’t acting in that capacity. Consider these issues in context of the era before CEO certifications – which didn’t exist until ’02 and Sarbanes-Oxley – what do you think would be the repercussions? Any regulatory response? What do you think the investor reaction would be? Shoot me an email and let me know what you think – I won’t attribute any comments to you unless you provide permission.

If you enjoy “The Daily Show,” you must check out Jon Stewart’s take on this “retroactive retirement” situation from Monday’s episode.

Our New “Audit Committee Disclosure Handbook”

Spanking brand new. Posted in our “Audit Committees” Practice Area, this comprehensive “Audit Committee Disclosure Handbook” provides a heap of practical guidance about Item 407 of Regulation S-K (as well as the NYSE and Nasdaq financial expertise requirements). This is a real gem – 35 pages of practical guidance…

Deal Cube Tournament: Elite Eight; 3rd Match

This is the third match of the 4th round – the battle among the Elite Eight! As noted in these rules (and keep sending more pics for the next tourney), please vote for one of the following two cubes below:

Cereal Boxes in Bowl and Spoon

Online Surveys & Market Research

– Broc Romanek