January 3, 2014

Shareholder Proposals: Aetna Sued Based on Statements in Opposition & Poor Web Navigability!

A few weeks ago, a shareholder sued Aetna (& each director) in federal court based on the company’s statements of opposition regarding two “political contribution disclosure” shareholder proposals submitted to the company over the past two years. The plaintiff was not a proponent for either of the proposals. Here’s the proponent’s press release – and here’s the complaint.

I can’t remember a lawsuit being filed based on disclosure made in a Statement in Opposition – does anyone? A Statement in Opposition is a solicitation, but I can’t think of a suit brought on that basis. And the transparency allegations based on how Aetna disclosed content on its website is also pretty wild, particularly considering the SEC’s upcoming disclosure reform! An earlier withdrawn shareholder proposal plays a role too. This is a complaint worth reading.

Here’s an article from Courthouse News – and here’s one from the Huffington Post.

Say-on-Pay: Now 74 Failures

Last month, RCM Technologies (Form 8-K) became the 72nd with 28% support; MGP Ingredients became the 73rd failure with 21% support (Form 8-K) – and Syntroleum became the 74th with 49% support (Form 8-K). Thanks to Karla Bos! And that’s our final ones for the year…

Keith Bishop has written a pair of interesting blogs about CalPERS and its insider trading policy…

Should Mark Cuban Continue to Hammer the SEC?

In this WSJ article, it is reported that Mark Cuban continues to be smarting from his long and drawn out battle with the SEC over insider trading allegations that ultimately led to a court victory for him in a jury trial. Apparently, he is now considering a new venture publicizing transcripts of court cases involving the SEC and highlighting tactics he considers suspect.

While I can sympathize with anyone having to go through such a long court process – and the bizarre circumstances that he faced in some instances dealing with the SEC – it can’t be healthy to dwell on the past. The reality is that the facts that led to the investigation being brought appear on their face to warrant a look – and that all enforcement investigations don’t play out like they did for Mr. Cuban.

Before he decides to proceed with such a venture, I encourage Mr. Cuban to talk to reputable former SEC enforcement lawyers and get their take on the value of such a venture (and recognize that some of them are already shedding light on what goes down at the SEC – see this recent David Smyth blog about how the SEC sorts through tips). My own take is that merely reading a court transcript won’t give you enough of a sense of whether the investigative approaches being used by the SEC are appropriate. And a court transcript certainly won’t tell you a thing about the many headwinds behind the scenes that hinder the SEC from achieving its investor protection mission. If anything, Mr. Cuban should use his resources to help the SEC – not hurt it…

Amy Winehouse: “Free Nelson Mandela”

– Broc Romanek