Perhaps as a reaction to the SEC’s SLB 20 – or Commissioner Gallagher’s continuing war of words against the current state of proxy advisors – yesterday, ISS announced the upcoming launch of a new “data verification portal” for equity-based compensation plans up for shareholder approval. ISS also released a set of 19 FAQs to help explain this new portal (pet peeve: if you create a set of FAQs, please number them).
Here are 10 things to know:
1. Portal officially launches September 8th
2. Data verification only for equity comp plan approval (in other words, this is different than what S&P 500 companies now enjoy for their entire ballot; see FAQ #14)
3. All US companies can participate
4. Companies have to register for the portal before they can use it (do so soon since it takes 5-7 business days for ISS to process and you might forget if you procrastinate)
5. Only companies can use the portal; not their advisors
6. Can’t verify data until after proxy statement is filed with the SEC
7. After proxy filed, ISS will send an alert saying the data verification window is open (alert will come roughly within 12 business days after the proxy filing)
8. Once alert is sent, companies only have 2 business days to verify the data and request changes. Repeat: just two business days!
9. ISS will send responses to request for changes within 5 business days of the request
10. Review list of 27 questions in Appendix A of the FAQs to comprehend what ISS is looking for in equity comp plans
Pay-for-Performance Disclosure: CII Sends Recommendations to SEC
Last week, CII sent this letter to Corp Fin Director Keith Higgins providing recommendations on the implementation of Section 953(a) of Dodd Frank. The letter provides these recommendations:
– Do not make changes to the existing Summary Compensation Table.
– Provide a graphic representation of pay for performance for the CEO individually and the named executive officers in the aggregate.
– Provide, at a minimum, a five-year comparison of executive compensation to performance.
– The required disclosure, at a minimum, should compare executive compensation to total shareholder return.
– Disclosure about executive compensation actually paid should not exclude any components of pay.
Also see the new comment letter from the AFL-CIO on this topic. It was the first comment letter posted regarding the 3 rulemakings the executive pay area that have not yet been proposed in 10 months. Here’s all of those comment letters…
Transcript: “Executive Pay Basics: The In-House Perspective”
We have posted the transcript for the recent CompensationStandards.com webcast: “Executive Pay Basics: The In-House Perspective.” This was a tremendous program – perfect for anyone who needs some comfort if they are relatively new to being in-house or isn’t very well steeped in a wide scope of pay issues…
As I’ve remarked on occasion, it’s been mindblowing how many times rumors seem to leak from the highest levels of the SEC to the media over the past decade (eg. here’s an example). That sort of thing never happened before then. As noted in this CNBC article, the SEC’s Inspector General recently spent months trying to uncover who leaked details about a closed Commission meeting about the JPMorgan “London Whale” settlement – but no smoking gun was found. Here’s an article from the Hill.
According to the articles, the level of detail in this 16-page report from OIG is pretty wild, even with parts of it redacted. It notes who was interviewed during the investigation (all of the SEC commissioners, 5 staffers of the Office of the Chair and 18 staffers of the Offices of the Commissioners) and much more. In his blog, Steven Quinlivan breaks down some of it too.
Bizarrely, I couldn’t find this OIG report on the SEC’s site. Here’s OIG’s webpage with all of its available reports if you want to check yourself. Instead, it was released as part of a FOIA request I believe based on the document’s URL…
More on “The SEC Commissioners Rebel! Are the Wheels Coming Off?”
A few months back, I blogged about how the battles among the SEC Commissioners has intensified in ways not previously seen before in public. This Bloomberg article profiling Commissioner Kara Stein – entitled “Ghosts of 2008 Haunt SEC’s ‘Outsider’ as She Pushes for Tough Rules” – adds some more backstory to this theme…
This DealBook article really slams the performance of SEC Chair White after one year…
Good Ole Days: The Zany Dash for Filing the First CEO/CFO Certifications
Today is the 12th anniversary of the due date for the first batch of CEO/CFO certifications from the 1000 largest companies (ie. that their past filings contained no material misstatements nor material omissions). It was a wild time as Sarbanes-Oxley had just been enacted a few weeks before. For those practicing back then, you will recall how the passage of Sarbanes-Oxley came out of the blue as reform legislation had little chance of becoming law until WorldCom suddenly failed and Congress acted swiftly in response.
I’ll say it again. It was completely unexpected.
The importance of that can’t be underscored enough. So there wasn’t much lobbying on the bill nor was there much attention paid to the details of the law by the law’s drafters since it sailed through Congress in a heartbeat. The law was relatively huge in scope, with a potpourri of topics – and as we all got back from vacation and started to look at it, it became clear that Congress seemed to overlook that one of the key provisions took effect pretty quick as the rest of the law’s provisions required SEC rulemaking first. Although the Section 302 CEO/CFO certifications required SEC rulemaking first, that delay did not apply to the initial set of Section 906 certifications due with the next batch of 10-Qs. Yikes! I blogged about this back on July 31, 2002, the day after SOX was signed into law.
So these first certifications were due on August 14th, just two weeks after Sarbanes-Oxley was enacted. And CEOs and CFOs suddenly had to attest to their company’s financials, etc. with scant time to prepare – nor did they have the comfort of the sub-certification machinery that many companies have today. Throw in that Section 906 was regulated by the DOJ (which was the principal reason why these certs were not delayed) and had criminal possibilities attached to them. Truly, an anxious time.
And this was during an era before webcasts were born. Instead, I held an impromptu CEO/CFO certification teleconference and folks had to RSVP by fax. My fax machine went berserk for days…
I’ve blogged recently about the issues related to directors as whistleblowers. What about lawyers as whistleblowers? Here’s news from the “Legal Ethics Forum Blog” (here’s some memos on that angle):
The WSJ reports on a dispute between Vanguard and a former in-house lawyer who has filed a complaint in NY alleging Vanguard has underpaid federal taxes. Vanguard is reported to accuse the lawyer of breaching confidentiality; the lawyer has asked the SEC to intervene on his side.
Such cases may raise two distinct issues: the report itself, which may fall within exceptions to confidentiality in a Model Rules jurisdiction or under the SEC’s rules, and backup for the report in the form of information–such as documents either in hard copy or digital form–the reporting lawyer might take from his or her employment. Even if we assume the report is protected the taking of documents raises distinct issues regarding client property.
I tend to think those issues should be resolved as issues regarding the report are resolved–i.e., taking such information does not violate a duty to a client to the extent the information is reasonably necessary to facilitate a permissible report. In essence the report would create a privilege (in the tort law sense) covering the disclosure to enforcement officials or courts; no privilege would attach if the lawyer put the documents up on the internet or mailed them to a reporter.
The documents issue lurks in the background of Meyerhofer v. Empire Fire & Marine Ins. Co., 497 F.2d 1190, 1194–96 (2d Cir.), cert. denied, 419 U.S. 998 (1974). Often discussed as a self-defense case there are actually two disclosures in that case–an initial report (including documents) to the SEC and a subsequent disclosure (of the material provided the SEC) to plaintiffs’ counsel on a self-defense basis. It provides some clues but, arising in the context of self-defense, does not decide these issues.
Books & Records: Delaware Extends Inspection Rights to Privileged Internal Investigation Documents
As always happens this time of year, our Conference Hotel – the Las Vegas Mandalay Bay Hotel – is nearly sold out. Our block of rooms is indeed sold out – but there are still rooms outside our block available at essentially the same rate. Reserve a room now by calling 877.632.9001 (so no need to mention our conference at this time). If you have any difficulty securing a room, please contact us at 925.685.9271.
And if you haven’t registered for the conference, register now. If you really want to go, but you’re having budget issues – drop me a line…
Big Daddy is back from vaca and has something for you that is spanking brand new! Posted in our “Annual Shareholders’ Meetings” Practice Area, this comprehensive “Annual Report & 10-K Wrap Handbook” provides a heap of practical guidance about how to deal with Rule 14a-3. This one is a real gem – 43 pages of practical guidance.
More on “Should CEOs Even Be on Boards?” v. “Should CEOs Conduct CEO Successions?”
Recently, I blogged on the topics of “Should CEOs Even Be on Boards?” v. “Should CEOs Conduct CEO Successions?” and asked for feedback. Here are two differing views that I received:
– Kris Veaco notes: “I’m not a fan of hard and fast rules – no CEO as Chair, no CEOs on boards. I believe it all depends on the board, the personalities and experience of the particular CEO. I’ve worked with boards where the CEO was a member and boards where the CEO was not a member. In any event, the CEO’s voice is one of many and brings to the discussion information on the business that is useful to the other members of the board. Executive sessions would exclude the CEO in any event. It should depend on the particular situation.”
– Jim McRitchie notes: “Ideally, CEOs shouldn’t be on boards. I used to head California’s cooperative development program before it was killed. The co-ops and credit unions I dealt with had boards that didn’t include the CEO. CEOs attended the meetings and made many of the presentations but they didn’t get a vote and it was very easy to meet without them and discuss their performance and succession planning. Many of the large co-ops failed but it certainly wasn’t because of separating the two positions.”
Transcript: “Divestitures: Nuts & Bolts”
We have posted the DealLawyers.com transcript for the webcast: “Divestitures: Nuts & Bolts.”
In a perfect world, you would never need to inform your directors that their communications and materials are subject to a discovery request. However, in the real world, it happens, and be assured that it’s never a pleasant experience – even under the best of circumstances. This Nelson Mullins blog provides a checklist of issues to consider to minimize the negative implications of such a request:
Some issues to consider as you explore information governance, litigation readiness and the Board:
– Information governance policies. What types of Board related information might be subject to corporate information governance polices? How are these policies and any requirements communicated to the Board?
– BYOD (Bring Your Own Device)- in specific. Do Board members use their own personal devices to receive Board-related information and communicate in connection with that information? If yes, consider whether user guidelines and device registration requirements may be appropriate.
– Commingled information. Have Board members been informed about possible risks of commingling Board information with other business or personal information? Do they understand that if they save or download Board information to personal devices, systems or email accounts, such information or communications might come under scrutiny and be discoverable?
– E-books, Board portals. Does your Board use these? If yes, consider: encryption and security requirements.
– Avoid storing unique information on personal devices or systems. Consider implementing practices to centralize Board information, and to design e-Board books and Board portals so that there is nothing unique on an e-Board book or device that is not on a centralized server.
– Communicate,train, acknowledge and improve. Train Board members on information governance expectations, risks and requirements.
See this associated Inside Counsel article for a more detailed discussion of these considerations.
Implementing an Information Governance Program
Management of board information – whether electronic or print – and including distribution, retention and destruction of emails, draft minutes and other materials, should be just one aspect of a comprehensive information management approach. In addition to realistically characterizing less-than-ideal, but common, records management practices, this Mayer Brown memo about establishing an information governance program provides helpful tips for establishing a best practice program that can minimize the risks and costs associated with the lack of a comprehensive, coordinated approach.
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: CEO Succession Planning Preparedness Lags Importance
– Should Boards Have Technology Committees?
– Delaware’s Unclaimed Property Voluntary Disclosure Program: June 30th Deadline!
– Study: IPO Companies Have More Freedom on Governance Practices
– New Intrastate Offering Exemptions: Not Useful
The PCAOB’s recent amendments to Auditing Standard No. 12 addressing financial relationships and transactions with the company’s executive officers (which Broc blogged about here) have not received much attention in view of the concurrent adoption of Auditing Standard No. 18 concerning Related Party Transactions. However, it’s worth specifically noting that amended Auditing Standard No. 12 requires auditors to obtain an understanding of the company’s policies & procedures for authorization and approval of executive officer expense reimbursements – an area that is often ripe for criticism and improvement. Even in the absence of conduct in this area that would appear to pose a risk of material misstatement based on a point-in-time review, a company’s executive expense approval process, as evidenced by the documentation (not just the paper policy, which may differ), reveals a lot about its corporate culture and tone at the top – which influence pretty much everything else.
One great way to see if your current process is working effectively and to have support vis a vis management for updating your policies & procedures is to have your Internal Audit department (assuming functional reporting to the audit committee) or an external audit consultant (if you lack resources in-house, or an independent internal audit of this area isn’t feasible under the circumstances) conduct an executive expense audit and make recommendations to management and the audit committee based on those results. Having once gone the latter route while serving as GC & Secretary, I highly recommend it – as this is one of those times when it makes sense to obtain a view from an outside consultant who is experienced in internal auditing, knowledgeable of mulitiple companies’ expense controls and internal controls generally, and has no ties with company management.
We have posted lots of memos about these new and amended PCAOB standards here in our “Related Party Transactions” Practice Area.
Is There a “Proper” CEO Expense Approval Process?
Perhaps prompted by the amendments to Auditing Standard No. 12, the “proper” approach to CEO expense approvals was recently bantered about on Proformative, an online resource primarily geared toward finance professionals – but often also of interest from a legal perspective. A member anonymously questioned on the site’s Q&A forum who should approve CEO travel expense reimbursements – the board or the CFO? He noted that many boards meet just monthly, which could make timely board approval difficult – but that the CFO of his company had not properly vetted senior management expenses in the past.
I thought this was a great question and, while I couldn’t resist contributing my own views based on past experience, I imagine there are multiple, sound approaches to the CEO expense approval process. My own view is that – outside of expenses that fall within objective, pre-established standards that apply to all executives in terms of dollar amounts and expense types such that the CFO (or whoever else internally is charged with expense approvals) isn’t capable of being pressured (directly or indirectly) to approve potentially questionable expenses – a formal process should be established so that the audit committee chair, independent lead director or board chair (or other designated independent director) reviews & approves the expenses. This is because – realistically, CFOs – or other subordinates of the CEO – often are not in a position to deny approval, ask probing questions about expenses that appear questionable or even demand additional supporting documentation.
Other views communicated by members in the forum were generally comparable – i.e., charge the CFO with approval of routine expenses as specifically defined by pre-established parameters via a written policy, and charge the audit committee or other independent directors with approval for any expenses that fall outside of those parameters. However, one company President/co-founder indicated that getting the board involved in this type of activity – even if just for the CEO – is difficult barring some evidence of problems that would trigger more robust board oversight. Unfortunately, based on my own experience, I think that that is what often occurs – a real problem that ultimately prompts intense board focus and development of a new process that includes some sort of board oversight as a component. It would seem like the more conservative, “safer” approach is to build that board oversight into the process in the first instance – recognizing the inherent difficulty in charging a subordinate with approval responsibility for outside-the-norm expenses. That said, I would be very interested in hearing others’ views on this if anyone is willing to share theirs.
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: Board Oversight of Sustainability
– Board Committee Structures Logically Circumstances-Driven
– Climate Change Disclosure: Heads I Win, Tails You Lose?
– Hut, Hut, Hike! First Fantex IPO in NFL Player
– Insider Trading: Big “Downstream Tippee” Case Might Change Standard
The results of this recent director survey, Conflicts in the Boardroom, caught my eye – primarily because it’s an unusual survey topic but an inevitable occurrence for most boards at some point regardless of size, structure or internal cohesion. Given that these conflicts/disputes have the potential to significantly impact the board’s day-to-day functionality as well as overall oversight effectiveness, it’s worth our understanding how directors most frequently encounter conflicts, their reactions, and what they want in the way of skills training to more effectively manage these situations.
Key findings include:
– Almost 30% of respondents had experience with a boardroom dispute affecting the company’s survival. Short of that, commonly cited impacts include:
Wasting management time
Distracting from core business priorities
Reducing trust among board members
Affecting the functioning of the board
Affecting the efficiency of the organization
– Most common subjects of board disputes were, in descending order of frequency: 1) financial, structural, or procedural workings of the organization; 2) personal behavior and attitudes of directors; 3) strategy development, including M&A
– Most difficult factors in resolving board disputes were issues related to competing factions on the board—“handling the emotions of those involved and separating personal from business interest”
– While about 48% of respondents attempt to mediate board disputes, 34% admit to frequently being an active party in the dispute – and 25% frequently take a side of an active party.
– Directors are much more confident that they can resolve an internal board dispute than an external dispute involving the board and external stakeholders.
– Disputes are most commonly resolved through internal negotiation (61%) or internal mediation (25%). Boards are very reluctant to resort to litigation to resolve disputes.
– Over 67% of respondents reported that they have encountered unresolved issues. 24% of small company respondents reported that issues are frequently not resolved – whereas only 6% of medium company, and about 16% of large company, respondents reported frequently unresolved issues.
– Directors are extremely interested in receiving training for dealing with personal factors: 75% described training in the “ability to deal with different personalities” as very useful.
– A gender difference emerged regarding the kinds of skills desired: women are far more interested in receiving training in negotiation skills; men are more interested in training on how to deal with different personalities.
Toolkit for Resolving Boardroom Conflicts to the Rescue!
The Global Corporate Governance Forum publishes this free toolkit offering practical guidance on how to prevent and resolve boardroom conflicts/disputes (both internal & external) short of litigation. The toolkit addresses (1) the rationale for applying ADR-like processes to these sorts of conflicts, (2) implementation/use of dispute resolution mechanisms and services, and (3) associated necessary skill sets and training for directors to effectively manage these types of disputes.
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:
– Auditor Engagement Letters: No Company Intervention in Auditor-Directed Work
– PCAOB Roundtable: Mixed Views of Proposed Changes to Auditor’s Report
– Perceived Board Effectiveness Linked to How Board Allocates its Time
– FINRA: Pre-IPO Selling Procedures Need to Be Adequately Supervised
Recently, the SEC announced the payment of a $400,000 award to a whistleblower that went to the SEC to report a fraud after the subject company failed to address the whistleblower’s concerns. In the announcement, the SEC stated that “[t]he whistleblower had tried on several occasions and through several mechanisms to have the matter addressed internally at the company.” When it became clear to the whistleblower that the company would not address the concerns raised, the next stop was the SEC. The SEC’s announcement did not provide any details regarding the nature of the problem or the circumstances of the whistleblower’s complaint.
It is somewhat hard to believe that this type of situation still arises with all of the procedures set up in the post-Sarbanes-Oxley era to avoid the problem of a whistleblower not being heard by the appropriate people and necessary action being taken by the company. In retrospect, the company might have been wise to take the whistleblower’s concerns more seriously – if they had, the chances of an SEC enforcement action might have been more remote.
NIRI’s New Earnings Call Survey
In this Davis Polk blog, Ning Chiu discusses the highlights from a recent NIRI survey concerning earnings call practices. The full survey results are available only to NIRI members, but the highlights indicate that earnings calls are widely embraced by companies and mostly done on a quarterly basis, with three-quarters of the respondents indicating that the calls take place the same day the company issues its earnings release. The majority of companies that were surveyed held calls that lasted between 46 and 60 minutes. In terms of announcing the calls, practices vary, with 25% of the respondents indicating that they announce the call as early as a month in advance, while about 33% announce the call two to three weeks in advance, and another quarter announce only one to two weeks before the call. The most popular day for earnings calls is Thursday, with almost half of the respondents indicating that they hold the calls during market hours. Not surprisingly, most of the companies responding to the NIRI survey (80%) did not use other media (i.e., Twitter) during the call.
Tough Love at Our Pair of Conferences
Have you ever wanted to throw a panelist off of a panel? I suspect the thought may have crossed the minds of many who have seen me on a panel in the past. At our just-announced plenary session – “Top Compensation Consultants: Survivor Edition” – you will have plenty of opportunity to jettison panelists as the panel goes on!
While the SEC grapples with its disclosure effectiveness efforts, FASB is moving forward with its accounting simplification efforts. Last month, FASB issued a pair of proposed ASUs as part of its Simplification Initiative, which is an effort on the part of the FASB to try to increase the usefulness of financial information for investors and decrease the costs and complexity for those preparing financial statements. Comments on both of the proposed ASUs are due by September 30, 2014.
In Simplifying Income Statement Presentation by Eliminating the Concept of Extraordinary Items, the FASB proposes to eliminate the concept of “extraordinary” items from GAAP and would thus eliminate the requirement to separately present extraordinary items in the income statement and include disclosure about such items in the notes to the financial statements. As proposed, presentation and disclosure requirements would still apply to items that are either unusual or infrequently occurring.
In Simplifying the Measurement of Inventory, FASB proposes to scrap the lower of cost or market measurement standard in favor of a lower of cost and net realizable value. As a result, the proposal contemplates that preparers would no longer need to consider replacement cost and net realizable value less and appropriately normal profit margin, which, in addition to net realizable, currently constitutes “market.”
Updated Comfort Letter Guidance
Last week, the AICPA issued SAS 129, which amends the guidance in SAS 122 on comfort letters. The amendment addresses the auditor’s responsibilities when engaged to issue comfort letters to requesting parties in connection with a nonissuer entity’s financial statements included in a registration statement or other securities offerings. Through this amendment, the AICPA is seeking address unintended changes to previous practice as a result of its Clarity Project (not to be confused with the FASB Simplification Initiative). The amended comfort letter guidance is effective for comfort letters issued on or after December 15, 2014, but early implementation is encouraged.
A Season of SEC Investor Alerts: This Time, Unregistered Offerings
The SEC’s Office of Investor Education and Advocacy has been busy this summer, publishing numerous investor alerts on a wide variety of topics. Yesterday, the office turned to unregistered offerings, publishing “10 Red Flags That an Unregistered Offering May be a Scam.” When Rule 506(c) of Regulation D was adopted pursuant to Title II of the JOBS Act, many feared that the rule would facilitate scammers trying to use the lifting of the ban on general solicitation as a way to reach more potential victims. This new investor alert is directed at educating investors about any sort of scams involving private placements and unregistered offerings, not just those involving a general solicitation.
Alas, the long, slow plodding implementation of the Dodd-Frank Act can make us sometimes forget about the legislation that was implemented by the SEC in relatively short order − the Sarbanes-Oxley Act of 2002, and, in particular, the internal control provisions of SOX. The SEC’s Division of Enforcement sent us a SOX reminder last week when the SEC announced partially settled administrative proceedings against the CEO and former CFO of a company for violating the SOX internal control and certification provisions. The SEC alleges that the CEO and former CFO represented in a management’s report on internal controls that the CEO participated in management’s assessment of the company’s internal controls, when he didn’t actually participate in the evaluation. Moreover, the CEO and former CFO were alleged to have each certified that they had disclosed all significant deficiencies in internal controls to the outside auditors, when they allegedly misled the auditors about their controls by withholding from the auditors information about inadequate inventory controls and improper accounting practices. It is not too often in the years since SOX was enacted that we see these sort of standalone internal control/certifications cases, often times the charges on these points are a sideshow to a much bigger case about and accounting failure.
The Dark Side of Social Media
The SEC’s Office of Investor Education and Advocacy recently published an Investor Alert to warn investors that promoters may use social media channels to spread false and misleading information about stock, mostly penny stocks. This of course is nothing new, given that the “pump and dump” is a tried and true market manipulation method that sleazy promoters love to utilize. The difference with social media is the ability to reach larger numbers of people with minimum effort and at a relatively low cost. The alert provides tips as to how to spot the red flags of a social media based investment fraud, but I have my own tip that I always tell my kids: “Just because it is on the internet doesn’t mean it is true.”
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 Reveals Board & C-Suite Diversity Stats & Strategies
– Conflict Minerals Survey: Many Companies Unprepared
– Notes: PCAOB’s Meeting on Auditor’s Reporting Model
– Europe: Mandatory Auditor Rotation Moves One Step Closer
– SEC Whistleblower Office Makes Additional Award, Denies Others