Monthly Archives: April 2013

April 30, 2013

Survey Results: Internal Audit

We have posted our internal auditor survey results:

1. To whom does your internal audit head directly report to at your company:
– CEO – 11%
– CFO – 33%
– General Counsel – 17%
– Audit Committee Chair – 44%
– Lead Director or Non-Executive Chair – 0%
– Other – 6%
– We don’t have an internal audit head – 0%

2. Does the head of internal audit attend your company’s board meetings?
-Yes, the internal audit head attends at least a portion of all board meetings – 0%
– Yes, the internal audit head attends at least a portion of some board meetings – 6%
– The internal audit head rarely attends board meetings – 17%
– The internal audit head doesn’t attend board meetings – 78%

3. Does the head of internal audit attend your company’s audit committee meetings?
– Yes, the internal audit head attends at least a portion of all audit committee meetings – 100%
– Yes, the internal audit head attends at least a portion of some audit committee meetings – 0%
– The internal audit head rarely attends audit committee meetings – 0%
– The internal audit head doesn’t attend audit committee meetings – 0%

4. Does the head of internal audit attend your company’s board committee meetings, other than audit committee meetings?
– Yes, the internal audit head attends one or more governance committee meetings – 0%
– Yes, the internal audit head attends one or more compensation committee meetings – 0%
– Yes, the internal audit head attends one or more other board committee meetings (eg. risk management or finance committees) – 11%
– No, the internal audit head doesn’t attend board committee meetings, other than audit committee meetings – 89%

Please take a moment to participate in this “Quick Survey on Lead Directors” and “Quick Survey on Rule 10b5-1 Plan Practices.”

Recent Court Decisions on Resource Extraction & Shareholder Proposal Rules

Here is a blog from Davis Polk’s Ning Chiu:

The D.C. Circuit has dismissed for lack of jurisdiction the case brought by the American Petroleum Institute and others against the SEC rules requiring certain companies to disclose payments made to foreign governments relating to the commercial development of oil, natural gas or minerals. The case will now be decided in the U.S. District Court for the District of Columbia, where the petitioners had also filed suit “out of an abundance of caution.”

The Commission had not disputed the Circuit Court’s right to hear the petition for review, but intervenor Oxfam America argued that the petitioners must first sue in district court. Exchange Act Section 25 establishes the framework for initial appellate review of Commission actions. Congress created original appellate jurisdiction over challenges to certain Commission rules in 1975, because it believed that the district court’s factfinding function is rarely necessary in these cases.

In this case, the D.C. Circuit determined that absent a statutory grant of original appellate jurisdiction under Section 25, a party must first file in district court. While certain enumerated sections of the Exchange Act specifically give the appellate court jurisdiction, the Commission did not rely on any of those sections when it published the resource extraction rule. In fact, the Court noted that Section 25 is limited to Exchange Act provisions directly relating to the operation or regulation of the national market system, a national clearing system or the Commission’s oversight of the self-regulatory organizations.

In another case, the U.S. District Court for the Southern District of New York found that the 2010 amendment to Rule 14a-8(i)(8) did not change its original holding in Lucian Bebchuk v Electronic Arts. In February 2008, the plaintiff submitted a shareholder proposal to the company to amend its bylaws and require management to allow shareholders to vote on all “qualified proposals.” Qualified proposals include all submissions made on behalf of any shareholders owing at least 5% of stock that are valid under state law and did not deal with ordinary business operations. Before the SEC could respond to a no-action letter request from the company, plaintiff filed suit.

In November 2008, the district court held that the proposal was contrary to the proxy rules because it eliminated the discretion of the company and dismissed the complaint under Rule 14a-8(i)(3). The court found that the plaintiff’s proposal contradicts the purpose of Rule 14a-8 given that different grounds are available for exclusion of shareholder proposals, which the plaintiff’s proposal would not recognize.

Plaintiff appealed and while appeal was pending, the SEC adopted the proxy access rules in 2010 and amended Rule 14a-8(i)(8). The Second Circuit then remanded to the district court to determine the relevance of the proxy rule changes to this case.

The Art of Hiring Outside Counsel

In this podcast, Steve Shapiro of Pircher, Nichols & Meeks describes what to look for when hiring outside counsel, including:

– What are the main reasons to hire outside counsel?
– How should performance of outside counsel be measured?
– What can companies do to improve the performance of outside counsel?

– Broc Romanek

April 29, 2013

The Strange Case of SEC Chair White’s Confirmation

This Congress remains a riddle wrapped in a conundrum. As noted in this article, Mary Jo White’s recent confirmation – which I blogged as a “slam dunk – turned out to be less than meets the eye.

The term of a SEC Commissioner is a fixed 5 years, with one Commissioner’s term expiring each year. Mary Schapiro left the SEC early – which is not atypical – as her term expires next year. So when President Obama nominated Mary Jo for Mary’s seat, he nominated her to complete the one year left on that term and he nominated her for the full 5 year term that follows. This also is not atypical, with the most recent examples of Harvey Pitt becoming Chair after being confirmed for the remainder of Arthur Levitt’s term and the full 5 year term that followed (and the same happened for John Shad in 1981).

In this case, the Senate Banking Committee only voted on the remaining one year term – not what Obama had envisioned. Apparently, this short-timer status was a deal cut to get votes from both sides of the aisle. No vote was taken on the following five-year term. I’m not aware of any another occasion when the Senate declined to vote on the follow up term. So this Congress continues to break new ground…

For some proxy season fun, try this “Annual Meeting Bingo Card” from Fay Feeney…

Another First! Annie Small Named as SEC’s General Counsel

Last week, Annie Small was named as the SEC’s General Counsel – the first woman to serve in that role. Annie comes from the White House – and she briefly worked as the SEC’s Deputy General Counsel for Litigation and Adjudication and WilmerHale before that. She replaces Geoffrey Aronow, who becomes Senior Counsel to Chair White. Note that Colleen Mahoney was Acting General Counsel for several months when Dick Walker switched to Director of Enforcement and before Harvey Goldschmidt came on board.

Meanwhile, the FASB appointed Russell Golden as its new Chair.

SEC Enters Into 1st Non-Prosecution Agreement for FCPA Violations

On the same day that the SEC announced Co-Directors for Enforcement – the start of a “tougher” enforcement era – the SEC announced that, for the first time, it entered into a non-prosecution agreement (known as a “NPA”) with a company relating to misconduct under the Foreign Corrupt Practices Act. As noted in this press release, the SEC decided not to prosecute Ralph Lauren for FCPA violations due to the company’s cooperation – here’s a blog from David Smyth about the case. I am posting memos in the “Foreign Corrupt Practices Act” Practice Area.

– Broc Romanek

April 26, 2013

Social Media: Magically Disappearing Tweets! Fits Into Wild West Theme…

Let me start by noting that I committed an error yesterday. Sorry about that. I’m just glad it rarely happens – my first apology in 11 years of blogging! In yesterday’s blog, I didn’t correctly characterize what Zillow’s plans are for its upcoming earnings call – they are merely accepting questions by Twitter. They aren’t tweeting answers during the Q&A portion of the meeting. I corrected that blog yesterday afternoon. Note that Zillow’s IR web page identifies three social media channels that may be used “complying with its disclosure obligations under Regulation FD.”

Perhaps I can be forgiven due to the Wild West nature of what is happening (see my similar quote in today’s NY Times). It’s hard to keep track of who is doing what and where. And as Dominic Jones of IR Web Report tweeted, maybe that’s a good thing as companies experiment with what investors want.

A bad thing – thankfully unrelated to lawyering – is the unreliable nature of how tweets are displayed. As we will be discussing during our upcoming webcast, just because something is tweeted – that doesn’t mean it will show up as such due to mysterious screening – as best illustrated by this display from Dominic Jones entitled “Magically Disappearing Tweets!”…

CII Strengthens Policy on Auditor Independence

At its recent spring conference, the Council for Institutional Investors revised its policy on auditors, including calling on boards to consider several factors when deciding whether to retain the same auditor – and that boards retaining an auditor beyond 10 years should be required to explain why doing so is in the best interests of shareholders. The policy clearly sets forth who the customer of the audit is – and it also calls for audit committees to be more transparent in their audit committee reports.

Europe Closer to Mandatory Auditor Rotation

Here’s news from this Accountancy Age article:

European Parliament’s Legal Affairs Committee today voted to reform the way audits are conducted imposing mandatory rotation. Under reforms drafted by British MEP Sajjad Karim, companies will be obliged to change their auditor every 14 years – although this may be extended to 25 years by member states if they fulfill certain criteria.

MEPs voted to adopt a series of measures designed to improve the audit process and instil greater transparency and confidence in the way audits are conducted. Speaking after the vote in the European Parliament Legal Affairs Committee (Juri), Karim said: “Reforming the audit sector is crucial to boost confidence in the financial markets, and to support growth and investment in European companies. “We have consistently advocated an international approach, adopting global standards which promote audit quality. It is no surprise that regulators in the US and around the world are watching us closely and the vote this morning signals loud and clear that we are taking the right steps.”

Karim’s original proposal proposed a long back-stop period, of 25 years, in contrast to the European Commission’s plan to intervene in the market on a six year basis.
The report was voted through Juri with the support of MEPs from the European People’s Party and Alliance of Liberals and Democrats for Europe. The reforms will go before the full European Parliament later this year.

And here is an article from the Journal of Accountancy…

– Broc Romanek

April 25, 2013

Social Media: Zillow to Collect Earnings Call Queries Via Twitter

Yesterday, Zillow blogged that it will be the first company to receive questions during an earnings call via Twitter. Even though several dozen (or more) companies have been live tweeting during their conference calls for several years, none have accepted queries by Twitter (and no company has tweeted anything other than pre-call prepared tweets during the presentation portion of the calls). So far, Zillow has not filed a Form 8-K announcing the use of social media channels.

Meanwhile, AllianceBernstein Holding might be one of the first to mention the fact that they live tweet during their earnings call in a Form 8-K. Last week, the company filed this Form 8-K which states that: “AllianceBernstein will be providing live updates via Twitter during the conference call. To access the tweets, follow AllianceBernstein on Twitter: @AllianceBernstn.”

Social Media: AutoNation, Zynga & DLH Holdings Announce Channel Use

With this Form 8-K, AutoNation announced that it has four social media channels (including the CEO’s personal Facebook and Twitter accounts) – and via this Form 8-K, Zynga served notice that it has three social media channels – that might be used to communicate material information. DLH Holdings’ Form 8-K doesn’t list which social media channels might be used – but rather states: “The list of social media channels that the Company uses may be updated on its investor relations website from time to time.”

I have added these companies to my list of 8-Ks filed by companies who announce they may disseminate information via social media in our “Social Media” Practice Area. Dominic Jones noted on Twitter that AutoNation CEO “Jackson has been using both channels for a long time and uses them well.”

Don’t forget our upcoming webcast: “Social Media: Parsing the Hypos.”

Crowdsourcing Earnings Estimates: Estimize

A start-up that has been around a few years – Estimize – that crowdsources earnings estimates has gotten a boost by being including on Bloomberg terminals, as noted in this WSJ blog

– Broc Romanek

April 24, 2013

7th Say-on-Pay Failure of the Year: 1st Company to Fail Twice – But Not in Consecutive Years

As noted in its Form 8-K, Cogent Communications Group is the 7th company holding an annual meeting in 2013 to fail to gain majority support for its say-on-pay (40% support). Cogent also failed in 2011, with 39% support. That makes them the first company to fail, pass (68% in ’12), then fail again. And as noted in its Form 8-K, Biglari Holdings is the 6th company holding an annual meeting in 2013 to fail to gain majority support for its say-on-pay (33% support since abstentions count as “against”). Hat tip to Karla Bos of ING Funds for pointing these out!

Here’s a chart from Steven Hall & Partners of the say-on-pay stats so far this proxy season – and here’s a press release from them showing CEO pay levels are up 7% so far this season…

As always, Mark Borges and Mike Melbinger are doing a great job covering developments in the executive pay area in their blogs. I’m not doing shabby myself as there is more than enough to blog daily on pay issues. See this blog by Mark Borges analyzing a novel proxy statement that breaks lots of new ground…

Another Say-on-Pay Case Dismissed: AAR

Here is a blog by the team at Katten Muchin who worked at getting a say-on-pay case that was filed against AAR Corp. in Northern Illinois dismissed recently. In this blog, Jim Barrall parses the decision – and here is Wachtell Lipton’s analysis.

Stillwater Rescinds CEO Awards after Shareholder Derivative Suit

Mark Poerio of Paul Hastings recently wrote this blurb on (here’s a related Washington Post article):

Mainly to secure exemptions from Code §162(m)’s $1M deduction limit, it is common for stock award plans to establish maximum limits on the awards that any individual may receive. The recent experience of Stillwater Mining reminds that these limits need monitoring, because awards in excess of shareholder-approved plan limits are vulnerable to challenge. In the case of Stillwater Mining, a shareholder derivative complaint made such allegations in early April. Within a week afterward, Stillwater filed a Form 8-K announcing that, with the CEO’s consent, the company had rescinded grants of restricted stock units covering just under 190,000 shares (valued around $2M, @ $11/share).

Two days later, on April 12th, Stillwater filed additional proxy materials providing more context: basically explaining the Code §162(m) origin for the limit, its past irrelevance to the company due to inability to claim deductions, and the conclusion that “Despite the cost to Mr. McAllister personally, the costs and distraction of litigation were not in the best interests of the Company and its shareholders and agreed the most prudent course of action would be to rescind the grants that exceeded the cap.”

– Broc Romanek

April 23, 2013

SEC Chair White Splits the Baby: Novel Co-Directors for Enforcement

As long rumored, Andrew Ceresney was announced as the co-head of the SEC’s Enforcement Division yesterday. Andrew served as Chair White’s longtime lieutenant at two of her two prior jobs – Debevoise & Plimpton and US Attorney for the Southern District of New York. Having two Directors at once certainly is unusual – but as this DealBook piece notes – the arrangement could be temporary as George Canellos (elevated to Co-Director from Interim Director) could be headed back to private practice soon enough. This DealBook piece portrays low morale in the Division.

The debate over “are two leaders better than one?” is an interesting one. Some claim it’s not the greatest governance move as it can create some dysfunction (see this article). Who is ultimately accountable? What if the two leaders wind up in turf battles? It’s not hard to imagine many close calls winding up being a split decision among the two heads – who breaks the tie? And what does that do to their relationship with each other – particularly how does that impact the co-head who lost the tie but who winds up being right in hindsight? On the other hand, there are arguments that it can work well. A handful of companies do have co-CEOs…

When Congress drags George and Andrew into a hearing, will they play “good cop, bad cop”?

News Corp Settles Shareholder Derivative Lawsuit: $139 Million & Governance Reforms

Yesterday, News Corp. settled a shareholder lawsuit brought by Amalgamated Bank and the Central Laborers Pension Fund in 2011 – In re News Corp. Shareholder Litigation – stemming from claims against its board related to the out-of-control phone hacking scandal and other matters. The $139 million that News Corp. will receive – from insurance proceeds – is the largest cash settlement ever in a derivative lawsuit. The settlement also includes extensive governance reforms – including a split into two divisions, publishing and entertainment.

The settlement is subject to approval by the Delaware Court of Chancery, where the litigation had been proceeding. In addition to alleging fiduciary lapses over the hacking fiasco that embarrassed the company and led to the firing – and arrests – of numerous News Corp. executives, shareholders challenged directors over the 2011 purchase of the Shine Group from Rupert Murdoch’s daughter. Here are the terms of the settlement. Kevin LaCroix does a great job of recapping the litigation in his blog

More on our “Proxy Season Blog”

We continue to post new items regularly on our “Proxy Season 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:

– Examining Hewlett-Packard’s Proposed Proxy Access Rights
– Corp Fin Denies Disney Right to Exclude Proxy Access Proposal
– Detailed Examination of 2012 Shareholder Proposals and Proxy Contests
– SHRM Drops Controversial Proposal for Human Capital Proxy Disclosure
– A Case to Exclude the Triennial Say-on-Pay Shareholder Proposal

– Broc Romanek

April 22, 2013

Director Removals: Yes, Shareholder Votes Really Do Matter

A few weeks after the NY Times ran this article – “Bad Directors and Why They Aren’t Thrown Out” – Hewlett-Packard announced that two directors had resigned and its chair had stepped down due to low vote totals at the company’s annual shareholder meeting as noted in this NY Times article. So the original article that claimed that shareholder votes make no difference doesn’t seem all that fab (but this NY Times entitled “When Shareholder Democracy Is Sham Democracy” is spot on – and this article entitled “The Case of H.P.’s Obstinate Director” is downright excellent. This column entitled “Daring to Knock on the Boardroom Door” also is good).

Oddly, in this article, the reporter intimates that the resignation announcement – made during the annual meeting – might have influenced the vote totals for the two H-P directors. I suppose the reporter doesn’t realize that 99.9% of the votes were already cast by the time the meeting starts. But I do agree its odd that a resignation announcement was made at the meeting and not some time afterwards. I reached out to long-time inspector of elections Carl Hagberg for his thoughts on this – here is Carl’s ten cents:

Yes, that struck me as being weird too…especially the reporter’s speculation that the comment may have swayed voters to vote for the two low-vote-getters – like for WHAT? To throw them a bone out of sympathy, thinking that it wouldn’t matter anyway?

It IS true that sometimes, institutional investors actually do come to a meeting bearing “legal proxies” and make up their minds on how to vote – or decide to revoke a previous vote – then and there, after seeing and hearing the proceedings and sniffing the wind,,,(been there, seen that many times, especially in formal proxy fights)…but I do not see that as anything that was happening at the H-P meeting.

For the H-P meeting, the oddest thing were that the comments came from Ralph Whitworth – who had no “official role” in the meeting – and no particular reason to even speak at the meeting…except, maybe, to signal that HE was really in charge…and/or that he would personally see to it that the low-vote getters would be gone very quickly – since, for sure, HE knew what the votes were at that point.

Checklist: Director Removal

Lot of practical advice in this checklist on director removal, courtesy of Denise Kuprionis of The Governance Solutions Group (who was in-house for two decades before). Let me know if you would like to contribute to our growing “Checklist Library“…

Here’s a DealBook article about the rarity of director removals, even for poor performance…

Collective Shareholder Engagement? A UK Idea

Here’s news from Subodh Mishra of ISS’ Governance Exchange:

Recently, three of the U.K.’s leading investor umbrella organizations announced plans to form a working group to explore the feasibility of collective engagement as called for under the Kay Review. The trio’s plans are being welcomed by the government, though officials are calling for action in the near- rather than long-term. In a joint announcement, the National Association of Pension Funds, Association of British Insurers, and Investment Management Association, said they would facilitate–though not participate in–the working group after having jointly conducted “extensive discussions regarding the potential benefits of an investor forum and potential impediments to its effectiveness” with their members and “a broad range” of other stakeholders.

The Kay Review, released in July, called on financial market participants to address the disincentives to engagement that arise from fragmented shareholding and the perceived regulatory barriers that inhibit collective engagement by establishing a forum for institutional investors in U.K. companies. In their March 26 statement, the trio argued that broader collective engagement may have the potential to improve investment returns over the long-term. “There is already considerable collective engagement and we now intend to explore how the processes enabling such engagement might be enhanced by establishing a working group of investors drawn from a broad range of investor types, including overseas investors in U.K. companies,” the trio said. The intention is to appoint the working group by the end of April and to ask it to report any recommendations by this fall, the group said.

Meanwhile, U.K. Secretary of State for Business, Innovation and Skills Vince Cable told lawmakers that he hoped the group would take action in “weeks or months, rather than years” and also cautioned against the possibility of forum members improperly acting in concert. According to Cable, BIS had no remit to manage the process of establishing an investor forum and called on trade bodies to do so, as envisioned by Kay. “Trade bodies should promote an investor forum but shouldn’t run it,” Cable said, while also warning that investors must act collectively without compromising controls on the flow of information. “We don’t want collusion, we don’t want insider trading,” he said, warning to do so would be “the worst form of conversation that could take place.”

Conservative party parliamentarian Robin Walker said the group’s March 26 press release announcing plans for the working group made a “mastery of saying very little while using lots of words to do it,” effectively pressing Cable to tell lawmakers when they could see an investor forum in action. In response, Cable said that if the forum hasn’t come together by this fall when the steering group reports in, “you’ll have good grounds for coming to me and saying ‘why aren’t you [pushing] these people along, the report’s been out for a year or so why is nothing happening?'”

– Broc Romanek

April 19, 2013

The SEC & the President’s Proposed 2014 Budget

Last week, President Obama offered a budget that many declared dead on arrival (but some said offered starting point for a debate). Here’s news from Scott Kimpel of Hunton & Williams: Last week, the White House released its proposed 2014 budget, with the SEC discussion beginning on page 1313. Whether this – or any federal budget – will be passed for fiscal year 2014 remains to be seen. Still, the President’s proposal provides some interesting insights into agency priorities as the SEC chairman contributes to the budgetary request with the input of the agency’s office and division heads.

Under the budget, the SEC is allotted approximately $1.67 billion, a 25% increase over the $1.33 reserved under the 2013 Continuing Resolution, broken out as follows:

– Enforcement would receive $494 million under the proposed budget, a 19% increase over the 2013 Continuing Resolution. Notably, Enforcement plans to focus on “bringing additional legal, accounting, and industry expertise to investigations and cases; supporting current initiatives in market intelligence; and enhancing case management.” Enforcement also plans to bolster staffing for the Office of Market Intelligence (OMI), which is responsible for triaging and processing the thousands of enforcement tips, complaints and referrals the SEC receives each year.

– Corp Fin has requested $164 million, a 24% increase. These amounts would be devoted to expanding Corp Fin’s disclosure review program and toward rule-writing efforts, among others.

– Trading & Markets is budgeted at $98 million, a 24% increase. Trading & Markets has significantly expanded rule-writing and supervisory responsibilities under Dodd-Frank and the JOBS Act, and the increased sums would be dedicated to satisfying those responsibilities.

– Investment Management is seeking $63 million, a 29% increase. The budget notes that the Division plans to focus in particular on exchange-traded funds (ETFs) and money market funds in 2014.

– OCIE is budgeted $347 million, a 31% increase. As part of its proposed increase, OCIE intends to hire additional examiners to focus on investment advisers and investment companies as part of the office’s ongoing efforts to increase supervision of the investment management industry.

– RiskFin would receive $51 million, a whopping 59% increase over the 2013 Continuing Resolution and an astounding 155% over the 2012 actual amount. The economists in RiskFin are under ever-increasing pressure to support the Commission’s cost-benefit analyses and the increased amounts would support these efforts. The Division also intends to enhance its expertise in equity markets and trading, fixed income markets and products, “financial innovation”, and asset valuation.

The budget narrative repeats the talking point that “[b]ecause the SEC’s budget is offset by fees, the agency’s funding level has no impact on the Federal deficit.” While this statement is technically true, it may be of little comfort to the registrants (and their shareholders) who actually pay those fees.

Warren Buffett’s View of Governance & Securities Law

In this podcast, Prof. Larry Cunningham discusses the Third Edition of “The Essays of Warren Buffett: Lessons for Corporate America” (the first version dates back to 1997 and actually began as a law review conference) as it applies to corporate governance and securities regulation, including:

– What are some of the venerable principles of corporate governance that reappear in this edition?
– What’s new for Warren concerning corporate governance?
– Who does Warren think was responsible for the financial crisis and how has responsibility been apportioned?
– What about compliance and assuring integrity through the ranks?
– For Warren, what’s the toughest battle to fight in terms of compliance?
– What’s the appropriate response when improprieties are found?

Here is Kevin LaCroix’s review of Larry’s book…

More on our “Proxy Season Blog”

We continue to post new items regularly on our “Proxy Season 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:

– Declassification, Political Spending Again Ubiquitous
– Campaign Mounts for Independent Chairs
– No-Action Letter Challenge to New Version of Retail Proxy Access Proposal
– Western Union Seeks to Exclude Norges Bank Proxy Access Shareholder Proposal
– Survey: Mutual Fund Support for Corporate Political Disclosure

– Broc Romanek

April 18, 2013

Social Media: The NYSE Weighs In

After the SEC’s Section 21(a) report on Netflix, the NYSE sent a reminder to listed companies about its process for handling material news. To me, it reads as a reminder of the NYSE process – not as a wet blanket as it could be interpreted. In the excerpt from the reminder below, the NYSE says “Regulation FD-compliant manner” – so if it’s good enough for the SEC, then it’s good enough for the NYSE. It’s just that companies have to provide advance notice to the NYSE for certain material events. So it should not change the considerations for using social media much. What do you think? The relevant excerpt from the NYSE’s reminder is below:

The Securities & Exchange Commission issued guidance last week on the acceptability of utilizing social media outlets like Facebook and Twitter to comply with Regulation Fair Disclosure. Given the SEC’s new guidance, companies may be considering the merits of utilizing these outlets for disclosure purposes. Please be aware that the NYSE has certain disclosure rules that companies must follow and we thought it might be helpful to review these rules with you so that you can consider them as you evaluate the SEC’s new guidance. Additionally, as the 2013 proxy season is now underway, companies are reminded that NYSE rules require listed companies to provide the NYSE with at least 10 days advance notice of all record dates.

NYSE’s Timely Disclosure Rule:
Under Section 202.06 of the NYSE Listed Company Manual, companies can comply with the NYSE’s timely disclosure rule by issuing a press release or by means of any Regulation FD compliant method (or combination of methods). When news will be released during market hours (leading up to the opening and between 9:30 am – 5:00 pm EST), companies are reminded that the NYSE requires that ten minutes advance notice be provided to the NYSE’s Corporate Actions & Market Watch team prior to the dissemination of any news that is deemed to be of a material nature or that might impact trading in the company’s securities, or at the time the company becomes aware of a material event having occurred.

Companies must provide the NYSE with the means by which the company intends to disseminate the news and the NYSE must have the ability to view the news to ensure it has been fully disseminated. This advance call provides the NYSE with an opportunity to consider whether a temporary trading halt in the company’s securities should be put in place. A halt in trading allows investors to evaluate the official company news in its entirety and adjust their trading positions as they see fit.

Further to this rule:
– The NYSE expects that a company representative will be available to discuss the details of the news and answer any potential questions the NYSE may have.
– While not intended to be an exhaustive list, examples of news the NYSE would consider to be potentially material include: earnings, mergers/acquisitions, securities offerings and pricings related to these offerings (see below for more information), major product launches or new patent approvals, dividend announcements, etc.
– In instances of unusual market activity or rumor-driven activity, a company is expected to contact the NYSE and promptly release to the public any news or information which might reasonably be affecting the market in its securities. Where there is no knowledge of material news, a company may be contacted by the NYSE and asked to issue a press release promptly so that the activity/rumor can be addressed for the overall market.
– While foreign private issuers are not required to comply with Regulation FD, they must still comply with the NYSE’s timely disclosure rule. Given that foreign-based issuers are operating in different time zones, it is especially important that the NYSE be provided with contact details for company representative(s) that can be reached during the NYSE’s market hours and who have the authority to speak on a company’s behalf. This contact information is critical in case a situation were to arise where the NYSE became concerned about the trading in your company’s securities and a company representative was not immediately available; the NYSE may be forced to halt trading in your company’s securities until information can be received by the NYSE to support the resumption of trading.

NYSE Proposes to Eliminate Separate Voting Standard

Here is a Davis Polk blog from Ning Chiu, Mutya Harsch and Gillian Moldowan [Broc’s note – since this blog went up, the NYSE’s proposal has been taken down amid vague circumstances – perhaps the SEC didn’t approve of it; overall, not a transparent process]:

Companies seeking approval of equity compensation plans as required under NYSE rules have often struggled to understand, and describe in proxy statements, the application of the NYSE voting standard alongside the state law provisions, for determining approval of the plan. The NYSE has now proposed to eliminate its own separate voting standard.

Where the NYSE makes shareholder approval a prerequisite to the listing of any additional or new securities, Section 312.07 mandates that the proposal obtain a minimum vote of a majority of votes cast, provided that the total vote cast on the proposal represents over 50% in interest of all securities entitled to vote on the proposal. This provision can be baffling, for example, if the treatment of abstentions under applicable state law differs from how abstentions are calculated under the NYSE voting standard. In some states, a “votes cast” standard would not include abstentions. In addition, the 50% requirement layers another level of complexity with respect to broker non-votes, which would be applied toward state law quorum obligations.

The NYSE proposal to remove its own voting requirement, which will also affect other NYSE-required votes, including issuances of over 20% or more of a listed company’s outstanding common stock or voting power, recognizes that it is unnecessary and confusing to mandate two separate voting standards to any proposal subject to the NYSE rules, while applying only the state law requirement for all the other proposals. Nasdaq does not have a similar requirement.

The NYSE has requested that the SEC approve the proposed rule change on an accelerated basis so that, in the case of companies holding shareholder votes on proposals currently subject to Section 312.07, such proposals would be subject only to the requirements of state law.

More on our “Proxy Season Blog”

We continue to post new items regularly on our “Proxy Season 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:

– Unbundling Lessons Learned from the Apple Case
– Apple: Judge Dismisses Say-on-Pay Injunction Request
– A European Report on Proxy Advisors
– Climate Risks at Banks: Corp Fin Doesn’t Allow Shareholder Proposal Exclusion
– Calls for Proxy Access Whither

– Broc Romanek

April 17, 2013

Investor Group Proposes Corporate Sustainability Disclosure As Global Listing Standard

In what can be a new trend, an investor group, the Investor Network on Climate Risk – led by Ceres – has issued a consultation paper in an effort to place sustainability disclosure requirements into listing standards on a global basis. Companies are welcome to submit comments during the consultation period, which ends May 1st. The INCR webpage hosts the Consultation Paper, the supporting Appendices and a Comment Template. After receiving comments, a subset of the INCR investors will sort through the comments and figure out where investors have the greatest agreement. The group has already started engaging with stock exchanges – including those that already have a sustainability standard – in an effort to install a uniform standard at all of them.

Here’s an excerpt from a blog by Davis Polk’s Ning Chiu on this:

INCR includes notable investors such as BlackRock and others traditionally associated with being active on corporate social issues, including Boston Common Asset Management and the AFL-CIO. The group is concerned that the ability to factor sustainability issues into investment decisions is difficult due to what they perceive as inconsistent and insufficient corporate reporting. In addition, INCR members have heard from companies that have been reluctant to report on sustainability that they are not certain what specific information investors need and how it will be used. INCR members have been in discussions with NASDAQ OMX and several other stock exchanges, and the paper is in response to those exchanges urging INCR to develop more clarity and consensus on “a unified sustainability disclosure listing standard that could be adopted by all stock exchanges.”

The three segments of a listing requirement being proposed for listed issuers globally include:

– Materiality assessment in annual financial filings where management is expected to discuss its approach to determining the company’s material environmental, social and governance (ESG) issues, with key components that include: (a) how the company determined its material ESG issues; (b) who was involved in that determination; (c) which ESG issues were determined to be material and why, including a discussion of risks and opportunities related to each issue and the connection to financial performance and business strategy; and finally (d) a periodic review of the assessment and reporting on the frequency of scheduled reviews.
– A Global Reporting Initiative (GRI) content index, with every company providing a hyperlink in its annual financial filings to such an index, which will inform investors about the availability and location of a company’s ESG data.
– Corporate ESG disclosure about the following categories of issues, using a “comply or explain” approach: climate change; diversity; employee relations; environmental impact; government relations; human rights; product impact; and safety and supply chain.

The consultation paper notes that about 3,400 companies published a sustainability report as of 2011, and few companies discuss material ESG information in their financial filings. Bloomberg published corporate ESG data for over 5,000 companies in 2011, with more than 120 ESG indicators on display.

The paper contains a number of questions seeking feedback. The initial comment, or consultation, period ends on May 1, 2013. INCR intends to host meetings to discuss the comments with other investors, and Nasdaq has committed to engage in discussions with other stock exchanges as well as the International Organization of Securities Commissions (IOSCO).

Checklist: Corporate Sustainability Initiatives

Check out this extensive checklist on corporate sustainability initiatives – posted in our “ESG” Practice Area – courtesy of Kelley Drye’s Jeanne Solomon & Steven Humphreys. If you would like to contribute a checklist to our site, please be in touch…

Social Media: Netflix Begins Using Facebook as Channel & Infrax Announces Channel Use

Last week, I blogged about Netflix filing a Form 8-K to list five social media channels by which it may disseminate company information. I mused that the company might have done this as CYA – but I was wrong. As noted in this WSJ article, CEO Reed Hastings disclosed Thursday on his personal Facebook page that Netflix’s customers had streamed more than four billion hours of video over the past three months – a post similar to the kind that got him in trouble with the SEC before the Section 21(a) report.

Meanwhile, Infrax filed this Form 8-K to list two social media channels of its own. As Dominic Jones tweeted: “There’s something not quite right about a company with 1 tweet and 16 followers using Twitter for Reg FD.” I am maintaining a list of 8-Ks filed by companies who announce they may disseminate information via social media in our “Social Media” Practice Area. And don’t forget our upcoming webcast: “Social Media: Parsing the Hypos.”

– Broc Romanek