Monthly Archives: May 2013

May 31, 2013

SEC Finally Issues FAQs on Conflict Minerals & Resource Extraction

Prepare for a snowstorm of law firm memos! Yesterday, the SEC finally issued two sets of FAQs – conflict minerals and resource extraction. Both are filled with helpful stuff, including this list pulled from a Cleary Gottlieb email:

Form SD Generally
– Voluntary filers must file Form SD with any applicable specialized disclosure.
– Failure to timely file Form SD will not cause an issuer to lose its eligibility to use short-form registration on Form S-3. (The FAQ does not mention Form F-3, used by foreign private issuers, but the reasoning would apply equally.)

Conflict Minerals
– The conflict minerals disclosure requirements apply to a reporting company and all of its consolidated subsidiaries.
– The packaging and container for a product are not considered to be part of the product, even if the packaging or container is necessary to preserve the usability of the product up to and following the product’s purchase. (Packaging and containers sold independently of the product are considered products in their own right.)
– If a company manufactures a product, there is no distinction in the required analysis and disclosure between the components that the issuer manufactures itself and “generic” components that the issuer purchases for inclusion in the product.
– Services are not products, and equipment that an issuer may manufacture or contract to manufacture to allow it to provide a service is not itself a product.
– Tools, machines and other equipment that an issuer manufactures or contracts to manufacture for use in the manufacture of other products are not themselves products, even if the issuer later sells them.
– Mining companies that engage only in activities customarily associated with mining, including processing and smelting, are not considered to be “manufacturing” the minerals they mine.
– Following an IPO, an issuer may begin providing conflict minerals disclosure for the first calendar year that begins no sooner than eight months after the effective date of the IPO registration statement.

Resource Extraction Payments
– A company that provides only services associated with exploration, extraction, processing and export of a resource will not generally be considered to be a resource extraction issuer.
– Transportation activities are generally not covered by the rule, unless the activities are directly related to the export of the resource.
– Penalties and fines related to resource extraction paid to government agencies are not reportable.
– Payments may not be reported on an accrual basis; they must be presented on a cash basis for the year in which they were made.
– If an issuer pays corporate level income tax on many different sources of income in a particular country, it need not segregate its tax payments to report the amount corresponding solely to resource extraction activities, although it may choose to do so. If the issuer presents information on an aggregate basis, it may disclose that the information includes payments made for purposes other than commercial development activities.

Conflict Minerals & Resource Extraction: Court Challenges Proceed on Accelerated Basis

As noted on NAM’s site, oral argument for the conflict minerals case is currently set for July 1st. As noted in this blog, Leonard Street’s Steve Quinlivan writes:

We previously noted that the challenge to the SEC’s conflict minerals rules was transferred from the Court of Appeals to the United States District Court for the District of Columbia. A scheduling order has been entered in the case which provides that the parties’ cross-motions for summary judgment will be decided on the basis of briefs transferred from the Court of Appeals. The Court also granted the parties’ request to expedite the cross motion for summary judgment.

We also noted that the Court of Appeals dismissed the challenge to the SEC’s resource extraction rules for lack of jurisdiction and that the case would proceed in the United States District Court for the District of Columbia. The District Court has likewise entered a scheduling order which provides that the plaintiffs’ motion for summary judgment will be decided on the briefs submitted by the parties to the Court of Appeals.

Big Jump in Anti-Pledging Policy Disclosures

In this blog, McGuire Woods’ William Tysse notes: According to this Wall Street Journal item, the number of companies disclosing anti-pledging policies so far this proxy season has increased to 107 from just 8 last year:

Proxy-advisory firm Institutional Shareholder Services said in November that it could begin looking at any hedging or pledging of company stock by executives as a “failure in risk oversight,” since a margin call could force executives to sell their stock at an inopportune time. ISS said it would consider whether companies disclosed an antipledging policy in their proxies, but could recommend that investors vote against corporate directors if there is “significant” pledging.

– Broc Romanek

May 30, 2013

SEC Extends Comment Period on Proxy Fees

Last week, the SEC issued this order extending the comment period for revising the fees that companies pay to have their proxy materials distributed. The order summarizes the comments received to date.

Yesterday, the SEC came out with its own version of “The Internship” movie. No Vince Vaughn or Owen Wilson though…

Nasdaq Agrees to $10 Million Fine for Facebook IPO

Yesterday, the SEC announced that Nasdaq had settled with the SEC for securities laws violations resulting from its poor systems and decision-making during the Facebook IPO by paying a $10 million penalty – the largest ever against an exchange. This Bloomberg article gives a play-by-play…

Federal Court Accords Deference to SEC’s Whistleblower Rules

Last week, the US District Court for the Southern District of New York joined four other district courts in holding – in Murray v. UBS Securities – that the SEC’s rules implementing the Sarbanes-Oxley whistleblower protection provisions are entitled to deference.

Supreme Court Grants Certiorari in Sarbanes-Oxley Whistleblower Case

Last week, as noted in this article, the Supreme Court granted certiorari in Lawson v. FMR to address whether an employee of a privately-held contractor or subcontractor of a public company is protected from retaliatory discharge by Section 806 of Sarbanes-Oxley, the whistleblower provision. A divided First Circuit had held that Sarbanes-Oxley didn’t apply to such employees.

– Broc Romanek

May 29, 2013

Shareholder Proposals: Chevedden Loses “Proposal by Proxy” Case

Recently, a Texas judge granted summary judgment to Waste Connections in Federal District Court for the Southern District of Texas after the company had filed suit seeking a declaratory judgment to exclude a shareholder proposal from John Chevedden purportedly on behalf of Jim McRitchie and Myra Young. There is no court opinion – just the pleadings and summary judgment order. However, this Rule 14a-8(j) exclusion notice to Corp Fin from Waste Connections includes the company’s side of the story.

The complaint filed by Waste Connections alleged that Chevedden himself did not own any shares of the company and argued that his proposal was improper because Rule 14a-8 doesn’t permit a shareholder to grant a proxy to another person for that other person to submit a shareholder proposal. This “proposal by proxy” issue is not new. For example, it was the basis for an exclusion request in this Ameriprise Financial no-action letter from late 2012 in which Corp Fin did not grant exclusionary relief when Chevedden filed a proposal “on behalf of” Kenneth Steiner.

So the Texas court reached a different conclusion from the Corp Fin Staff. As one member puts it, the takeaway is the increasing perception that companies might fare better in federal court than before the SEC Staff.

Interestingly, the complaint notes that John has submitted more shareholder proposals than anyone in history, accounting for more than 11% of all shareholder proposals considered by Corp Fin in the no-action process during that time (879 out of 6958 proposals).

Annual Meetings: Don’t Bar the Press

Best way to get negative press about your annual meeting? Bar the press. This Pittsburgh Gazette article perfectly illustrates the point as a company gets slammed for barring the press. Only five shareholders attended the meeting. Was the bar worth it? I highly doubt it.

And its a practice pointer made time and again during my annual webcasts on conducting annual meetings. Also see our checklist on annual meetings and the press…

Here’s an interesting article from an Australian director entitled “The AGM is badly broken.”

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:

– Corp Fin Declines to Exclude Proposals on Basis of Inflammatory or Incorrect Supporting Statements
– 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

– Broc Romanek

May 28, 2013

Two New SEC Commissioners Nominated from the Senate Banking Committee

On Thursday, President Barack Obama nominated Kara Stein to succeed SEC Commissioner Elisse Walter whose term has expired. Kara is a lawyer and a long-time aide to Senator Jack Reed (D-RI), who is a senior member of the Senate Banking Committee. The President also nominated Michael Piwowar to succeed SEC Commissioner Troy Paredes whose term expires at the end of June. Michael is the Senate Banking Committee’s Republican chief economist and has served in that role since ’09 – he previously worked as a staff economist for the SEC for four years. Here’s a Bloomberg article – and one from DealBook.

Since they both work for the Senate Banking Committee, their confirmation hearings should be smooth…and some think the fact that they both come from Congress will lead to more bipartisan work at the SEC. As if those in Congress provide a beacon of bipartisanship…

PCAOB Starts Making Nice With Chinese Regulators (Or Vice Versa): Access to Work Papers

As noted in this DealBook article, a memorandum of understanding between the China Securities Regulatory Commission, the Ministry of Finance for China and the PCAOB was signed on Friday that should finally give access to work papers that the PCAOB has sought for quite some time (as noted in this blog). But it’s baby steps as the agreement applies only to enforcement cases against auditors; not cases against companies. Another big caveat is captured by this excerpt from the article:

Whether the agreement will result in more cooperation remains to be seen, however. China retained the right to reject requests if they violated Chinese law or “essential national interest.” In addition, the agreement covers only enforcement actions, not routine inspections of audit firms.

Happy 80th Birthday to the Securities Act of ’33!

Many of us owe our livelihood to deals (or did at some point in our career). Thus, it’s appropriate to recognize the 80th anniversary of the enactment date for the Securities Act of 1933, which was yesterday. Lionel Richie says it best:

Well my friends the time has come
raise the roof and have some fun
throw away the work to be done
let the music play on

Everybody sing everybody dance
lose yourself in wild romance
we’re going to party, fiesta forever
come on and sing along
we’re going to party, fiesta forever
come on and sing along

– Broc Romanek

May 24, 2013

ISS Settles with SEC Over Breach of Confidentiality

Yesterday, the SEC charged ISS with failing to safeguard confidential voting information in a number of proxy contests – and ISS settled for a $300k fine for violating the ’40 Act. In addition, ISS agreed to engage an independent consultant to review its compliance policies & procedures.

This is related to a fired employee who handed off data to a proxy solicitor for a number of years, as I’ve blogged about before. Last year, MSCI disclosed that it had received a Wells notice. So far, every corporate blog I’ve read mentioning this matter has used the term “schadenfreude”…

PCAOB’s Statement on Extraordinary Cooperation with Investigations

Recently, the PCAOB issued this statement about cooperation during investigation. The PCAOB also re-proposed its proposed auditing standard on related parties and significant unusual transactions – with a comment deadline of July 8th.

SEC Updates EDGAR for XBRL 2013 US GAAP Taxonomy

As noted in this article, the SEC updated EDGAR so it will only accept submissions with XBRL exhibits based on the 2013 US GAAP taxonomy (and no longer accept submissions with XBRL exhibits based on the 2011 GAAP taxonomy).

– Broc Romanek

May 23, 2013

12th-23rd Say-on-Pay Failures of the Year (Including One With 9% Support!)

Here are the latest failures, including one with 9% support – we’re talking single digits! – the lowest level since say-on-pay became law:

– Patriot Scientific – Form 8-K (46% support)
– Gentiva Health Services – Form 8-K (37% – also failed last year with 37% support)
– Golden Star Resources – Form 8-K (38%)
– Everest Re Group – Form 8-K (38%)
– OraSure Technologies – Form 8-K (46%)
– The Middleby Corporation – Form 8-K (48%)
– Hecla Mining – Form 8-K (48%)
– Volcano Corporation – Form 8-K (38%)
– Apache Corp – Form 8-K (49%)
– Ultimate Software Group – Form 8-K (49%)
– Alexandria Real Estate Equities – Form 8-K (9%)
– Boston Properties – Form 8-K (19%)

Thanks to Karla Bos of ING for the heads up on these!

Here’s a Forbes article on Apache’s close vote…

Corp Fin Issues BTR No-Action Relief for the 1st Time!

Yesterday, Corp Fin issued its inaugural no-action relief on Regulation BTR (Blackout Trading Restrictions) in this no-action response. As you may recall, BTR restricts sales and purchases of certain equity securities by directors and executive officers during any period in which at least a majority of employees are blacked out from selling or purchasing securities in an employee benefits plan. This provision was required to be adopted by Congress in Section 306 of Sarbanes-Oxley to address the issue that employees of Enron had when they couldn’t sell company securities because of a change in employee benefit plan administrators and Enron’s share price was dropping significantly.

Corp Fin’s no-action letter – issued to Skadden Arps’ Brian Breheny on behalf of Pfizer – clarifies that sales by directors and executive officers of equity securities pursuant to a tender offer conducted in compliance with SEC rules are exempt from Section 306 and Reg BTR.

Over 60 Panels: Full NASPP Agenda Announced

With just a little over a week left in the last extension of our 15% early bird discount – and on a pace for record attendance – we have just posted the full agenda for the NASPP Conference to be held in Washington DC on September 23rd-26th. Combined with the proxy disclosure pre-conference, there are over 60 panels! Here is the NASPP Conference Brochure. The panels cover a wide range of topics, featuring many representatives from federal agencies, stock exchanges and proxy advisors – and covering hot buttons like “Say-on-Pay Litigation 2.0” which features both the lawyer most responsible for bringing these cases and lawyers who are defending them. Register before the Friday, May 31st early bird deadline.

– Broc Romanek

May 22, 2013

Status of SEC’s Political Contribution Disclosure Rulemaking: Not Yet (& Maybe Never)

Each time I see an article from the mass media indicating that an imminent proposal from the SEC on political contribution disclosure rules, I tweet about how misinformation is so easily spread (here is the latest example of misinformation). A rumor of a proposal coming in April started last year – which I quickly blogged as being unlikely. Now in the course of testifying before a House committee, SEC Chair White laid to rest the rumors that a proposal was coming soon, as noted in this Reuters article. As noted in this Davis Polk blog, House Republicans were disturbed to learn that the SEC is considering such a petition, believing the initiative to be “highly partisan” in light of the controversy surrounding the IRS’ examination of certain groups. Rep. Garrett pressed Chair White to commit that the SEC will not be “bullied by these outside radical groups.” However, Chair White declined to take a position.

As would be expected, there is a groundswell of public support for a SEC rulemaking, evidenced by the 600,000 signatures on the petition for rulemaking and pieces like this Forbes’ article.

Note that Congress has already had SEC Chair White testify in hearings twice during her first month in office. And Ning Chiu blogs about how Chair White has responded to Sen. Rockerfeller’s inquiry about cybersecurity disclosures, noting that Corp Fin has issued comments to about 50 companies.

The Movement for More Political Contribution Disclosures

In this podcast, Lisa Gilbert of Public Citizen’s Congress Watch explains how the movement to elicit more political contribution disclosures is proceeding, including:

– What is Public Citizen (and what is your role there)?
– What has Public Citizen done to help support the political spending disclosure rulemaking petition?
– How are interested parties working together to support the petition?
– What are the political forces at work on this issue?
– What other types of efforts do you foresee to obtain greater disclosure from companies?

Recently, Prof. Lucian Bebchuk submitted a new comment letter to his petition to the SEC…

House Bill: Shareholder Approval of Political Contributions

Meanwhile, Rep. Capuano (D-MA) and Sen. Menendez (D-NJ) re-introduced the Shareholder Protection Act last month, a bill that would amend the ’34 Act to require shareholder approval for political expenditures and require political contribution disclosure in 10-Qs. Here is the related press release.

Meanwhile, President Obama has come out against the House’s “SEC Regulatory Accountability Act,” as noted in Jim Hamilton’s blog

– Broc Romanek

May 21, 2013

The Battle Over JPMorgan’s CEO/Chair Split Proposal: The Gloves Are Off!

Today is the vote for what looks to be the most contentious battle of the proxy season – at least if the metric is ink spilt – here is the timeline of events as far as I can glean from media reports:

1. Co-shareholder proponents – AFSCME, New York Comptroller and Connecticut’s Retirement Plans successfully include a shareholder proposal seeking a split of the CEO and Chair positions in JPMorgan’s proxy statement. The company opposes the proposal.

2. Broadridge provides early voting results to both company representatives (and presumably their agents) as well as the co-proponents, who had paid Broadridge to distribute materials as part of an exempt solicitation.

3. Last week, there is a leak to NY Times’ DealBook about the level of early voting results. See my blog below on that.

4. Then, SIFMA calls Broadridge to complain about the co-proponents obtaining early voting results. Since SIFMA’s members are comprised of Broadridge’s brokerage clients, it acquiesces due to the contractual obligations that Broadridge has with its broker clients – as noted in this DealBook article. [Why was an association for brokers weighing in on an issue that seemingly is most relevant to investors and public operating companies? Perhaps because JPMorgan’s head of regulatory policy was SIFMA’s chief until earlier this year, as highlighted in this American Banker article.]

5. Shareholders go bananas about this change in Broadridge policy, including CII sending a letter to the SEC asking for the agency to intervene, as noted in this DealBook article.

6. Over the weekend, JPMorgan relents and allows early voting tallies to continue after a series of calls with the NY Attorney General, as noted in this DealBook article.

Here are long-time inspector Carl Hagberg’s thoughts on the facts as he knows them:

There is fresh news here about Broadridge giving information to folks who had paid them to send materials out on a closely contested matter which apparently was the case here – and which, arguably, might give them “standing” to receive such updates.

The most important thing to note regarding this ruckus is that such updates are mostly meaningless, given the fact the the deciding votes are not usually cast until the evening before the meeting – and sometimes the morning of – which is likely the situation at JPMorgan. In other words, knowing this information typically doesn’t allow anyone to predict what the final outcomes will be – because of the high percentage of “last minute votes” that are being cast by activist investors these days. At many meetings I’ve inspected, large shareholders will change their positions just before the polls officially close. And in really closely contested elections they may show up and cast their votes then and there – after hearing directly from the management at the meeting.

Also, knowing the results a few days or weeks early doesn’t necessarily indicate what might be the best thing to do about them from a tactical perspective – but that is another matter altogether. At best, all one can expect to learn from any sneak previews is if the voting is following previous trends on similar or identical matters.

Here is my own take based on the facts as I know them:

Unfortunately, the conduct of annual meetings is not subject to much scrutiny other than proxy disclosures. The regulatory framework is sort of a Bermuda triangle between state law, exchange listing standards and SEC rules. As I have said for a while, as the outcomes of annual meetings continue to grow into “real” events, this is going to be a huge problem. Think hanging chads and much litigation.

I had no idea that Broadridge’s practice was to share early voting results with proponents if they conducted a solicitation through Broadridge – although that certainly seems the fair thing to do. I don’t have Carl’s extensive experience with meetings, but I do think that having knowledge of early voting results can be beneficial in a contested situation. Regardless, the uproar over this situation points a spotlight on the need for the SEC’s proxy plumbing project to get back on track.

There are several other debates related to this vote, including whether it matters whether the positions are split or not. Here’s a Columbia Law School blog that illustrates the difference between a lead director and a non-executive board chair…

Leaks of JPMorgan’s Early Voting: Confidentiality Concerns

“Ah, you’re crazy.”
“Am I? Or am I so sane that you just blew your mind?!”
“It’s impossible!”
“Is it? Or is it so possible that your head is spinning like a top?!”
“It can’t be.”
“Can it? Or is your entire world just crashing down all around you?”
“Alright, that’s enough.”
– Jerry & Kramer in “The Stall” episode

That Seinfeld dialogue pretty much sums up my reaction to reading in the middle of last week about how JPMorgan’s voting on its controversial CEO/Chair split proposal was faring – even though the voting was supposed to be confidential ahead of today’s annual meeting. It’s a first for me to read about early returns in the paper.

A leak leads to several concerns. One is whether leaks other than to reporters are happening? The traditional insider trading stuff. Another concern is whether a leak might impact whether other shareholders bother to vote – or how they vote. Of course, this cuts both ways – investors irked about this development might choose to vote against a company who has leaked results. Although Carl Hagberg might be right that knowledge of early voting results may not be useful in all cases – I certainly don’t think that means that leaks are not problematic. They could move the market. What if this was a proxy contest for which early results were leaked?

A European Proxy Advisor’s Views on Voting Leaks

Here’s an excerpt from a blog detailing Manifest’s concerns with the voting tally leak:

With Dimon threatening to walk away if shareholders support the splitting of roles, thereby requiring him to relinquish the chair, the question is now material to the immediate valuation of the company. Investors generally don’t like uncertainty, and with commentators talking about the potential for a 10% drop in share price if the vote wins, access to information about how the vote might turn out is valuable.

Let’s be clear about one thing: although investors around the world may already have instructed how they wish to vote, they have not voted yet. The vote does not commence until shareholders at the meeting are invited to vote on the resolution in Tampa next week. Nor is Broadridge, from which the data has come, actually the entity tasked with formally tallying the votes at the meeting (don’t forget, they only have the information in the first place because of the regulation-supported monopoly the enjoy). That makes counting votes already submitted akin to counting the chickens before the eggs have hatched. Yet we are told that so far, the proposal to split the roles has 40% support, and that means “inside JPMorgan they believe they’re going to win this vote” (

Investors, especially those outside the US, will be shocked to see that their private voting instructions may be used to try to influence other shareholders in their decisions on the same issue (in the same vein, investors should also be equally concerned that some proxy advisors are urging shareholders to support the split – it’s none of our business as analysts!).

Clearly, it’s in the board’s interest and it’s their prerogative to discourage shareholders from supporting the proposal. But to take advantage of their access to early voting intentions as a part of their strategy is, at best, very bad sportsmanship, at worst potentially manipulative – not least when the issue at hand is potentially immediately material. This is especially true because access to the pre-meeting voting data is unavailable to all but the issuer – giving them a distinct information advantage (“Shareholders Denied Access to JPMorgan Vote Results“).

To European investors, this is nothing new – shareholder voting is a private matter between them and the company. However, the other side of the pond, things have never been as clear cut, and this week’s move by the US financial services trade lobby SIFMA to prevent leakage of sensitive voting data by Broadridge is an important development in the US recognizing the sanctity – and market value – of shareholder voting information. With the furor over Bloomberg accessing confidential user data, the breakdown of the LIBOR and oil price setting mechanisms, potential irregularities in transition management (to name but a few hot issues) the financial services industry also seems to be at last waking up to the importance of integrity in all aspects of investment operations.

There’s a reason why France has election laws that prohibit public opinion poll data being published in the final few days before an election. That’s because the chief architect of the Constitution of the Fifth Republic, Charles de Gaulle (not known for shunning powerful executive positions himself, don’t forget), recognized that the influence of the press and speculation about potential voting results can skew general opinion and the vote.

In the high stakes poker hand currently on the JPMorgan AGM table, the absence of a similar rule this time could prove significant in enabling Dimon to continue in both his current roles. Apart from the sheer quantity of votes cast against Bond, the other notable fact was the complete silence around the progress of the vote and its likely outcome which showed that we should not worry that confidential voting prevents the effective exercise of shareholder choice.

The JPMorgan/Dimon vote is a watershed in more ways than one. Let’s not miss this opportunity to ensure we have a proxy plumbing system which is fit for 21st century shareholder democracy.

– Broc Romanek

May 20, 2013

Corp Fin Issues 15 New & Revised CDIs: Spring Cleaning

Last week, Corp Fin issued a batch of 15 new and revised Compliance & Disclosure Interpretations in both the ’33 and ’34 Act contexts. Sort of a hodge podge. Here they are:

1. Section 139. Securities Act Section 5 – Revised Question 139.13
2. Section 129. Rule 144(a) – Definitions – New Question 129.03
3. Section 133. Rule 144(e) – Limitation on Amount of Securities Sold – New Question 133.07
4. Section 210. Rule 413 – Registration of Additional Securities and Additional Classes of Securities – New Question 210.03
5. Section 228. Rule 430B – Prospectus in a Registration Statement After Effective Date – New Question 228.04
6. Section 256. Rule 502 – General Conditions to be Met – New Question 256.22
7. Section 532. Rule 144(d) – Holding Period for Restricted Securities – Revised Question 532.01
8. Section 116. Form S-3 – General Instructions I.B.1 to I.B.6 – Transaction Requirements – New Question 116.24
9. Section 125. Form S-4 – New Question 125.12
10. Section 118. Item 402(b) – Executive Compensation; Compensation Discussion and Analysis – New Question 118.09
11. Section 134. Item 501 – Forepart of Registration Statement and Outside Front Cover Page of Prospectus – New Question 134.04
12. Section 146. Item 601 – Exhibits – New Question 146.17
13. Section 110. Item 2.06 Material Impairments – New Question 110.01
14. Section 106. Rule 4-10(a)(6) Definitions – Developed Oil and Gas Reserves – New Question 106.01
15. Section 119. Item 402(c) – Executive Compensation; Summary Compensation Table – Revised Question 119.03

Here’s analysis on 14 of the CDIs from this Cooley news brief, including a shout out to Jesse Brill for getting an item on his wish list fulfilled, nearly 30 years later! And Mark Borges blogs about the two Item 402 CDIs.

SEC Commissioner Gallagher Supports a Global Proxy Advisor Code of Conduct

On Friday, as noted in this Reuters article, SEC Commissioner Gallagher gave a speech that supports the European Securities and Markets Authority’s (“ESMA”) code of conduct for proxy advisors and would like it adopted globally.

House Passes Two Bills: Economic Analysis & Reg A+ Deadline

As noted in FEI’s “Financial Reporting Blog,” the House voted 235 – 161, mainly along party lines, in favor of passing H.R. 1062, the “SEC Regulatory Accountability Act,” whose stated aim is “To improve the consideration by the SEC of the costs and benefits of its regulations and orders.”

And as noted by Morrison & Foerster’s Anna Pinedo in this blog: “the House of Representatives by a vote of 416-6 approved H.R. 701, a bipartisan bill that directs the SEC to finalize rules by Oct. 31 to implement Title IV of the JOBS Act. Rep. Patrick McHenry (R-NC), who serves as Chairman of the Subcommittee on Oversight and Investigations, sponsored the legislation along with Reps. Anna Eshoo (D-CA), David Scott (D-GA), David Schweikert (R-AZ) and Scott Garrett (R-NJ). Rep. McHenry stated that, “To cultivate a stronger economy, we have to build a more vibrant marketplace for our startups and entrepreneurs, which is what this legislation is all about. It’s critical that the SEC finally start to implement the JOBS Act – a bipartisan bill that was signed into law more than a year ago. Small businesses and entrepreneurs are starving for capital, and this legislation simply sets a firm deadline for the SEC to get its job done.”

– Broc Romanek

May 17, 2013

The SEC Staff Speaks on Whistleblower Developments

In this half-hour podcast, Sean McKessy, Chief of the SEC’s Office of the Whistleblower brings us up-to-date on what is happening in his Office, including:

– How do you like the job so far?
– How big is your Staff now?
– What do you consider the Office’s biggest accomplishments so far?
– What has been the biggest surprise so far – either organizationally or otherwise?
– Do you think the push for whistleblowers to report internally first poses a threat to the SEC’s office?
– What about the tension between language in Codes of Conduct, confidentiality agreements, severance agreements, etc. that encourage or requires internal reporting and the SEC’s rule which prohibits any person from taking action to impede an individual’s ability to report information directly to the SEC?

Nasdaq Withdraws Internal Auditor Proposal With Plans to Re-Propose

Recently, Nasdaq withdrew its proposal that would have required listed companies to have an internal auditor – with plans to re-propose the rule after it has considered the comments it has received. I find it odd they would go proposal-withdraw-reproposal rather than just proposal-reproposal – which is what a federal agency would have done – but perhaps it’s because the SROs have to keep their listed companies happy and have that burden to carry. Thus, by withdrawing the proposal now, Nasdaq can take their time to put together a re-proposal while listed companies breathe easy that the original proposal won’t suddenly become 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:

– Calls for Proxy Access Whither
– 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