Monthly Archives: December 2014

December 12, 2014

Do Some Companies Already Have Fee-Shifting Provisions (And Not Know It)?

Here’s a great piece by Professor John Coffee about the state of play with fee-shifting bylaws, which also includes some interesting ideas (also see this related Cooley blog). And this blog by Keith Bishop certainly is thought-provoking. Here’s an excerpt:

Reasonable attorney’s fees may be recovered when authorized by contract. This is because CCP § 1032(b) authorizes awards of costs to the prevailing party (except as otherwise provided by statute). CCP § 1033.5(a) then provides a long list of items constituting “costs”) under Section 1032. One fo these items is attorney’s fees when authorized by contract. Note that these provisions apply in both contract and tort actions so that a contract may provide for recovery of attorney’s in tort as well as contract actions. Civil Code § 1717 provides the authority for recovery of attorney’s fees when an action is on the contract. As most California attorneys should know, Section 1717 basically makes a unilateral attorney’s fee provision bilateral.

In my experience, many contracts include attorney’s fees provisions. In the corporate setting, these include employment agreements, indemnity agreements and compensation plans. These provisions may be very broadly drafted. For example, they may provide for the recovery of attorney’s fees by the prevailing party in litigation arising under or related to the agreement. In the case of an employment agreement, this could reach litigation related to the executive’s performance of that agreement.

Shareholders, of course, are not usually, if ever, parties to these agreements. However, California has found that a third party beneficiary of a contract may be liable for attorney’s fees if (i) there is a sufficient nexus; and (ii) the signatory party prevails. See, e.g., G. Voskanian Constr., Inc. v. Alhambra Unified Sch. Dist., 204 Cal. App. 4th 981 (2012).

Also see this piece by The Activist Investor. Meanwhile, Kevin LaCroix blogs about a letter writing campaign to Delaware legislators by CII & other institutional investors to support legislation that would limit fee-shifting bylaws – and Bob Lamm blogs about how a Senator has written to the SEC Chair so that fee-shifting bylaws are identified as “risk factors” in IPO prospectuses. Also check out this speech by Delaware Supreme Court Justice Ridgely about the role of bylaws in corporate governance…

Insider Trading: Newman Decision Makes It Harder to Bring Cases in 2nd Circuit

In what many are calling a “landmark” case, the Court of Appeals for the Second Circuit issued a long-anticipated decision a few days ago dismissing indictments against two defendants in United States v. Newman. The Court ruled that the government must prove that a remote tippee knows of the personal benefit received by a tipper in exchange for disclosing nonpublic information – and the Court held that the government must prove that the personal benefit is “of some consequence.” In other words, the benefits alleged by the government in United States v. Newman were not sufficient to support a conviction.

We are posting memos about this case in our “Insider Trading” Practice Area. Also scroll down on this Bloomberg View piece for analysis of the decision, including this unusually chastened statement by US Attorney Preet Bharara. And this Reuters article notes the fallout as this decision impacts other investigations…

Speaking of trading, the SEC’s Inspector General reports that the agency still lacks reliable tools to monitor the trading of Staffers, as noted in this Bloomberg article

Cybersecurity: Sleuths Looking for Material Nonpublic Information

As noted in this Cooley blog, a group of hackers is looking for nonpublic information to trade on – not the usual fare of credit card info, etc. The hackers are a sophisticated, native-English-speaking group, designated FIN4, that has targeted almost 100 public companies, primarily healthcare and pharma…

– Broc Romanek

December 11, 2014

How Much Does a GC Make? Equilar’s General Counsel Pay Study

In my experience, there is no more widely read document than one that reveals how much others in similar situations make. It’s the bling baby. $$$. So folks should be excited about Equilar’s new study on general counsel pay at Fortune 1000 companies (which isn’t publicly available fyi; here’s Equilar’s site – and here’s last year’s findings). Here are the key findings:

How Much – The median total compensation for General Counsels, broken out by revenue range was:
o Under $500 Million: $677k
o $500 Million to $1 Billion: $808k
o $1 Billion to $ 5 Billion: $1.1 million
o $5 Billion to $15 Billion: $1.8 million
o Over $15 Billion: $2.7 million

#2 Lawyers Make About Half – Across all of the companies, #2 general counsels received 49% as much total compensation as top general counsels, on average, and the #2 general counsel received 51% as much as the top general counsel when examining median compensation.

Smaller Companies Rely More on Salary – The ratio of median salary to median equity and long-term incentive compensation was 1.2 and 1.0 for the two lowest revenue ranges, and 0.7, 0.6 and 0.4 for the three highest revenue ranges. (Listed in ascending order of size.)

Performance Awards More Common at Larger Companies – 78% of general counsels at companies in the highest revenue range received performance-based stock, compared to only 22% of executives in the lowest revenue range and 54% of executives in the second lowest revenue range.

Perks – 62% of general counsels were eligible for perquisites, including 83% of executives at companies with over $15 billion in revenue.

Will We Ever See a Public Benefit Corporation? Yes, We Have The First (In Brazil)

Just as Lois Yurow muses in this blog whether it would be viable for a public company to become a benefit corporation – or for a benefit corporation to go public – comes the news of the first public B corp: Natura. However, Natura is not a US public company – but rather a Brazilian company. And as noted in this Cooley blog, Delaware Chief Justice Strine recently wrote that article praising the B Corp concept.

Meanwhile, B Lab has now certified 1200 B Corps – and Kickstarter has become a B Corp, as well as Green Mountain Power, a public utility. A lot of action in this area…

Notes from the ABA Fall Meeting: Reg D, Audit Reports & More

In his blog, Mike Gettelman has been providing a number of entries covering the recent ABA Business Section meeting in DC. Check it out!

– Broc Romanek

December 10, 2014

Our New “Nasdaq Listing Standards Handbook”

Spanking brand new. By popular demand, this comprehensive “Nasdaq Listing Standards Handbook” covers the corporate governance listing standards for companies listed on the Nasdaq. A “must have” for any listed company (or for those that work for listed companies). This one is a real gem – 93 pages of guidance. Goes nicely with its companion: “NYSE Listing Standards Handbook.”

Nasdaq’s Listing Fees: Going Up & A New Structure

Here’s an excerpt from this Goodwin Procter memo:

A new fee structure and increased fee rates for the Nasdaq Global Select, Global and Capital Markets will become effective on January 1, 2015, subject to several transition provisions described below. All companies that list securities on these Nasdaq markets after January 1, 2015 will be subject to the all‑inclusive annual fee, subject to transitional relief for companies that apply to list on Nasdaq prior to January 1, 2015 but complete their listing after that date. Effective January 1, 2018, all Nasdaq-listed companies will be subject to the all‑inclusive annual fee.

Companies that are listed on the Nasdaq Global Select, Global or Capital Markets before January 1, 2015 and want to opt into the all‑inclusive annual listing fee structure for 2015 must complete and file the opt-in form available through the NASDAQ OMX Listing Center not later than December 31, 2014. Companies should be aware that this election is irrevocable. Companies that do not opt into the all‑inclusive annual fee will continue to be billed under the current annual fee structure for 2015, and will also continue to be subject to additional fees for listing additional shares, corporate actions and other Nasdaq regulatory fees, as applicable. Nasdaq‑listed companies should compare their current and anticipated listing and other fees under the current fee structure (using the new fee rates) with the fees payable under the new all‑inclusive fee structure to determine whether they might benefit from opting into the all‑inclusive fee structure. Further information is available in the Nasdaq Continued Listing Guide.

As shown in the tables in the memo, the all‑inclusive annual fee for companies listed on the Nasdaq Global and Global Select Markets other than ADRs and closed-end funds will range from $45,000 to $155,000 for 2015. The all‑inclusive annual fee for companies listed on the Nasdaq Capital Market other than ADRs and closed-end funds will range from $42,000 to $75,000 for 2015.

First Issuer Completes NASAA Coordinated Review Program

Here’s a blog by Stinson Leonard Street’s Steve Quinlivan:

There has been somewhat of a controversy surrounding the SEC’s rulemaking in connection with Regulation A+ under the JOBS Act. Should larger Tier 2 offerings preempt state blue sky regulation (my preference) or be subject to state blue sky regulation (the state regulators’ preference)? To make state regulation an easier pill to swallow, the North American Securities Administrators Association, or NASAA, previously announced that it adopted a streamlined multi-state review protocol to ease regulatory compliance costs on small companies attempting to raise capital under the JOBS Act.

The first and only issuer has apparently completed a NASAA Coordinated Review in connection with an existing offering under the existing, but rarely used, Regulation A. Following completion of the review, the issuer filed a comment letter with respect to the Regulation A+ rulemaking with the SEC.

Among other things, the issuer noted “the Coordinated Review program has created value by defining concrete service standards. For us, the value of receiving comments in a timely fashion outweighs the marginal costs of filing in multiple states. The legal certainty this affords is substantial, and does not exist in federal review. The uniform application of NASAA’s Statements of Policy has been very helpful, and we have been able to comply with these policies despite the presence of certain conditions within our company which pertain to these policies.”

Upon learning about the comment letter, members of the House Financial Services Committee, Maxine Waters (D-CA) and Stephen Lynch (D-MA), sent SEC Chair Mary Jo White a letter. The letter asks the SEC to study NASAA’s Coordinated Review program, and not undermine crucial investor protections by preempting the states’ regulators.

Here’s the issuer’s comment letter and the letter to Chair White.

– Broc Romanek

December 9, 2014

Why The Brouhaha Over “Gadfly”?

Here’s a funny article entitled Why the Brouhaha Over “Gadfly”? by Keith Bishop inspired by the recent debate between Professor Stephen Bainbridge and me over this DealBook piece. Here’s my blog – and Stephen’s rebuttal

By the way, here are recommendations of the “Investor as Owner Subcommittee” of the SEC’s Investor Advisory Committee about impartiality in the disclosure of preliminary voting results. In addition to the recommendations, there is a good description of the current state of play in this area…

Shareholder Proposals: Evelyn Y. Davis (“Dougie” Version)

I’ve vowed to step up my game making videos – and one of my new styles is the jump-cutting that has made the Green brothers so successful. So see if you like this new version of my educational video about Evelyn Y. Davis:

Here’s a video about how to really do the “Dougie”…

Poll: Would You Use “Gadfly” In a Sentence?

Oops, I just did myself in the title of this blog! Anyways, what is your ten cents:


– Broc Romanek

December 8, 2014

Shareholder Proposals: Court Overturns Corp Fin’s “Ordinary Business” Exclusion Determination

Wow. Not soon after I blogged about a few members of the US Supreme Court questioning the deference given to the SEC in the enforcement context, a federal court rules against a Corp Fin no-action response in the shareholder proposal context in Trinity Wall Street v Wal-Mart Stores. Here’s a blog by Davis Polk’s Ning Chiu:

The U.S. District Court for the District of Delaware determined that Wal-Mart should not have excluded a shareholder proposal from its 2014 proxy statement, even after it received a favorable SEC no-action letter.

Trinity, an Episcopal parish headquartered in New York City, submitted a proposal for Wal-Mart’s 2014 annual meeting requesting that the Compensation, Nominating and Governance Committee charter be amended to add oversight of implementation of policies that would evaluate whether the company should sell a product that endangers public safety, has the substantial potential to impair the company’s reputation or would be considered offensive to the values that are integral to the company’s brand. Trinity wanted the committee to consider whether or not the company should sell guns equipped with magazines holding more than 10 rounds of ammunition.

In March 2014, the SEC staff agreed with the company that it could exclude the proposal under Rule 14a-8(i)(7), as relating to its ordinary business operations. This is consistent with prior SEC staff views about shareholder proposals focused on company decisions to sell controversial products. In April, the Court denied Trinity’s request for a preliminary injunction to prevent Wal-Mart from printing proxy materials without this proposal, on the basis that Trinity had not shown a likelihood of success on the merits. The Court specifically deferred to the SEC’s no-action decision.

But in an opinion issued recently on summary judgment motions, the Court held that Trinity’s 2014 shareholder proposal does not deal with matters that relate to Wal-Mart’s ordinary business operations because it seeks to have Wal-Mart’s board oversee the development and effectuation of a policy. The Court found that while the policy could, and likely would, influence what products are sold by the company, the proposal itself does not. Moreover, the proposal relates to social policy issues that transcends ordinary business matters, including the social and community effects of sales of these types of firearms at the retailer and the impact that could have on the company’s reputation.

Although the Court acknowledged that it had previously accorded significant weight to the SEC staff’s no-action letter determination during the preliminary injunction hearing, the Court noted that the final determination of the application of the ordinary business exception is for the Court alone to make. The SEC itself has acknowledged the same in its 14a-8 guidance.

The Court also decided that Trinity’s request for declaratory relief regarding Wal-Mart’s 2014 proxy materials for a meeting that already occurred is not moot because it falls into an exceptional category of disputes in which the challenged action was of too short a duration to be fully litigated, given that the Court had little time to make a decision before Wal-Mart’s printing deadline for its 2014 annual meeting and therefore could not have resolved the parties’ disputes by then. In addition, there was a reasonable expectation that the claim is capable of repetition since Trinity intends to submit another proposal for the next meeting.

Also see this blog by Steve Quinlivan…

Today’s Webcast: “Proxy Access: A New World of Private Ordering”

Tune in today for the webcast – “Proxy Access: A New World of Private Ordering” – during which Morrow’s Tom Ball, Davis Polk’s Ning Chiu, Chevron’s Rick Hansen and Gibson Dunn’s Beth Ising will analyze how the new wave of proxy access shareholder proposals is impacting how companies approach this hot topic. They will also talk about the impact of Corp Fin’s shareholder proposal process – including Corp Fin’s no-action grant to Whole Foods last week, as I blogged about a few days ago.

The panel will also address issues like that one just answered in the “Q&A Forum” (#8270) about whether Whole Foods would be able to exclude a 3%/3-year shareholder proposal next year if it already has a 9%/5-year bylaw based on “substantial implementation” grounds.

By the way, SEC Commissioner Kara Stein mentioned this in a speech last week: “the Commission has at times over the last couple of years delved into how we might improve the dialogue between companies and their shareholders to the benefit of both. Can we open up communication – and hence build a better partnership –by permitting or requiring universal proxy ballots? Or perhaps try again on shareholder proxy access?”

Transcript: “Anatomy of a Proxy Contest: Process, Tactics & Strategies”

We have just posted the transcript for our recent webcast: “Anatomy of a Proxy Contest: Process, Tactics & Strategies.”

– Broc Romanek

December 5, 2014

Small Business: House Passes Two Bills

Earlier this week, the House passed two bills that have now moved to the Senate:

– “Disclosure Modernization and Simplification Act” (HR 4569, sponsored by Rep. Garrett) – directs the SEC to study ways to simplify financial reporting for small and emerging growth companies & would permit public companies to include a summary page of all material information in 10-Ks.

– “SBIC Advisers Relief Act” (HR 4200, sponsored by Rep. Luetkemeyer) – amends ’40 Act to reduce regulation of advisers to Small Business Investment Companies, which are professionally-managed investment funds that finance small businesses.

Stats: Small Business Liquidity, Reg D & Accredited Investors

These interesting presentations from the recent “SEC’s Small Business Capital Formation Forum” have been posted:

– “Secondary Market Liquidity for Small Businesses” – Stan Keller, Edwards Wildman

– “Capital Raising Through Regulation D” – SEC’s DERA

– “Accredited Investor Pool” – SEC’s DERA

– “Equity Crowdfunding Under Title II of the JOBS Act: The First Year” – OfferBoard (from a MoFo blog – not the Forum)

This MoFo blog by Stephanie Uhrig notes that the Forum considered adding qualitative requirements to the “accredited investor” definition. And here’s a blog from the “Crowdfunding Insider” entitled “SEC Government – Small Business Forum: A Tale of Two Gatherings.”

Transcript: “Reg D Offerings: What Is Happening Now”

We have posted the transcript for our recent webcast: “Reg D Offerings: What Is Happening Now.”

Crowdfunding: Some States Have Opened the Doors

In this column, Professor Davidoff Solomon posits how the SEC’s delay in adopting crowdfunding rules has allowed individual states to do so, permitting a smaller scale test of whether it works. At the ABA meeting, I happened to talk to a few folks in states where crowdfunding is legal and people really are using the sites to invest. Here’s a few (& here’s a list of all the crowdfunding sites I am aware of):



Spark market

Here’s a note from Bob Dow of Arnall Golden Gregory:

This is an interesting social experiment on several levels, but one area to focus on will be the effect on the incidence of fraud. Those who believe crowdfunding is a train wreck would say that there will be rampant fraud. Those who believe in crowdfunding would say this will revolutionize fundraising and lead to an explosion in entrepreneurship. If these web site get some traction, we can see the two hypotheses play out.

I see the questions as much more subtle. I assume there will be more fundraising and probably some additional incidences of fraud. Is the benefit to the economy of the additional fundraising worth the cost to society of the incremental fraud? Are there other ways to prevent the fraud (focused enforcement, etc.) so as to avoid the need to shut down crowdfunding, or make it so restrictive as to effectively eliminate it?

– Broc Romanek

December 4, 2014

Proxy Access: Corp Fin Grants Whole Foods No-Action Request – Now What?

A few weeks ago, I blogged about “Proxy Access: Will the Whole Foods No-Action Request Maim Private Ordering?” As most people expected, Corp Fin did indeed grant Whole Foods no-action request yesterday – meaning that the company can exclude a 3%/3-year shareholder proposal – and instead place the company’s own 9%/5-year proposal on the ballot. In allowing exclusion, Corp Fin relied on the Rule 14a-8(i)(9) counter-proposal basis.

As I noted in my prior blog, it’s highly unlikely that the company’s 9%/5-year would ever be triggered given that the company’s largest shareholder owns 5.4% and a 5-year holding period is quite long. This leads to a few musings including:

– How will shareholders react to this type of move by a company? The investors I have heard speak on this topic aren’t happy that companies might respond with their own counterproposals.
– Will shareholders even vote in favor of management’s threshold if they feel the bar is too high? My guess is that management’s proposal won’t even muster majority support as shareholders place pressure on Whole Foods to adopt what they think is a more reasonable threshold in ’16.
– Would Corp Fin let any counterproposal knock out a shareholder proposal? What about a counterproposal with a 20%/10-year threshold?

Bear in mind that nearly half of the several dozen companies that rushed to adopt fee-shifting bylaws over the past few months have already pulled them in the face of shareholder anger. I understand the legitimate fears about short-term activists – but companies should engage with their long-term shareholders (and holding for three years is “long-term” in my book). Anyways, add these questions to the many others that will be analyzed on Monday’s webcast: “Proxy Access: A New World of Private Ordering.” Also don’t forget my podcast with Mike Garland of the Office of New York City Comptroller about the 75 access proposals that his office has sent to companies…

Not that it matters, but note that Corp Fin’s response to Whole Foods – dated December 1st – is not yet posted on the SEC’s site. We have the response only because the proponent, Jim McRitchie, has posted it on his…

SCOTUS: Justice Scalia Questions Deference Given SEC

As noted by Akin Gump’s Joseph Boryshansky in this blog: A recent statement by Justice Antonin Scalia accompanying the Supreme Court’s denial of certiorari in a criminal insider trading case – Douglas F. Whitman v. United States – raises fundamental questions about how the courts interpret the federal securities laws and the degree of deference they give to the SEC in the context of criminal enforcement. The unusual “Statement” follows the denial. In it, Justice Scalia (with Justice Thomas concurring), questions whether an executive agency – such as the SEC – is entitled to deference when it interprets a law that “contemplates both criminal and administrative enforcement.” Harkening back to 1611, Justice Scalia says:

I doubt the Government’s pretensions to deference. They collide with the norm that legislatures, not executive officers, define crimes. When King James I tried to create new crimes by royal command, the judges responded that “the King cannot create any offence by his prohibition or proclamation, which was not an offence before.” Case of Proclamations, 12 Co. Rep. 74, 75, 77 Eng. Rep. 1352, 1353 (K. B. 1611). James I, however, did not have the benefit of Chevron deference. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). With deference to agency interpretations of statutory provisions to which criminal prohibitions are attached, federal administrators can in effect create (and uncreate) new crimes at will, so long as they do not roam beyond ambiguities that the laws contain. Undoubtedly Congress may make it a crime to violate a regulation, . . . but it is quite a different matter for Congress to give agencies- let alone for us to presume that Congress gave agencies-power to resolve ambiguities in criminal legislation. . . .(some citations omitted).

The Justices agree to deny the petition, but note that “when a petition properly presenting the question [of deference] comes before us, [we] will be receptive to granting it.”

The Politics of the SEC

This article entitled “The SEC is Broken” notes how the SEC has become much more politicized over the past decade (and why). Here’s an excerpt quoting former SEC Chair Arthur Levitt:

“It’s much more difficult running the agency today than when I was there,” Levitt told IA. “By and large during my years at the commission, the environment was collegial. We were a fairly close-knit group; it was almost a family environment. We tended to know what each other thought about a particular issue and our counsels worked together to iron out differences.”

However, since he left the SEC, Levitt said the commission has become more politicized and “commissioners tend to represent an ideology, rather than what may benefit investors or what may be good for the markets.” The commissioners “look upon every decision in terms of whether it coincides or clashes with their political ideology, whatever that might be.”

The growing trend over the years of appointing former Capitol Hill staff members to SEC commissioner posts has contributed to a politically charged agency. “The commission is made of up largely of former [Hill] staffers, rather than as in the past [when it consisted of] distinguished lawyers and accountants,” Levitt said. These commissioners “tend to carry with them the biases of the people they’ve worked for” on the Hill.

Meanwhile, here’s an article entitled “GAO Report: SEC Is Bungling Collection and Accounting of Billions in Fines”…

– Broc Romanek

December 3, 2014

Webcast: “Proxy Access: A New World of Private Ordering”

Tune in on Monday, December 8th for the webcast – “Proxy Access: A New World of Private Ordering” – during which Morrow’s Tom Ball, Davis Polk’s Ning Chiu, Chevron’s Rick Hansen and Gibson Dunn’s Beth Ising will analyze how the new wave of proxy access shareholder proposals is impacting how companies approach this hot topic. They will also talk about the impact of Corp Fin’s shareholder proposal process – which faces a critical test in the wake of a request from Whole Foods, as I blogged about recently.

Podcast: NY Comptroller’s Mike Garland Speaks on Proxy Access Shareholder Proposals

In this podcast, Mike Garland of the Office of New York City Comptroller provides some insight into the “Boardroom Accountability Project” (which includes the submission of shareholder proposals seeking proxy access to 75 companies; here’s a list of the companies receiving the proposals – and here’s the NY Comptroller’s press release), including:

– What is the “Boardroom Accountability Project”?
– Why launch it this year?
– Why was the 3%/3-year threshold chosen?
– Have you heard from any companies that have received the 75 proposals – and if so, what sort of negotiating is going on?

CII’s Shareholder Proposal Roundtable

Interestingly, CII convened a shareholder proposal roundtable this summer to get investors and companies in the same room to see if they could reach common ground on their own (and published this 5-page summary about it). The roundtable consisted of about a dozen folks. Kudos for the effort!

There is probably no more difficult challenge than getting both “sides” to agree on changes to Rule 14a-8, borne out by the record number of comment letters when the SEC last reformed the rule in ’98. Over the years, I have attended similar types of meetings and they all got heated quickly. And if Corp Fin allows Whole Foods to exclude the 3%/3-year proxy access shareholder proposal because the company is proposing 9%/5-years – and these access counterproposals become a trend – I’m not sure you’ll get both sides in the same room ever again…

– Broc Romanek

December 2, 2014

The SEC’s 3rd Annual Whistleblower Report: 3600 Tips

A few weeks ago, the SEC’s Office of the Whistleblower published its 3rd annual report for its activities of for the past year. The highlights include:

– 3620 whistleblower during the 2014 fiscal year, an increase of 382 (11.8%) over 2013
– Been a total of 10,193 whistleblower reports since the program commenced toward the end of 2011 fiscal year
– Relatively few whistleblower bounty awards authorized, although the number of awards is slowly increasing.
– Total of 14 whistleblower awards, 9 during the 2014 fiscal year;
– SEC made more awards in the 2014 fiscal year than in all the other years of the program combined.
– 29% of the 14 awards have gone to non-U.S. whistleblowers
– Denied a total of 19 claims, with 12 taking place during 2014 fiscal year

We have been posting memos in our “Whistleblowers” Practice Area – also see this blog by Jill Radloff and Reuters article. And I can’t remember if I ever shared this blog by Jill entitled “Whistleblowers Fight Over SEC Award.” And then there’s this “Mentor Blog” that I just posted entitled “Bigger Penalties When Whistleblowers Involved”…

SEC Commissioners: “Bad Actor” Waiver Deadlock Partially Broken

A few months ago, I blogged about the latest in the drama among the SEC Commissioners in approving “bad actor” waivers as the SEC Commissioners were stuck in a 2-to-2 deadlock over the ability of BofA to continue certain activities with Chair White recused. As noted in this Reuters article – and this article – the SEC Commissioners granted a partial waiver (here’s the incoming request) last week that waives the majority of sanctions that begin when the settlement with Bank of America is entered into court – but the one area that wasn’t waived is BofA’s ability to issue securities without getting the approval of the SEC every time. See this Reuters article entitled “SEC’s Stein says Bank of America waiver policy is ‘breakthrough'”…

Update on the St. Petersburg Stock Exchange Scam

Last year, I blogged about companies receiving letters from the St. Petersburg (Russia) Stock Exchange stating that it is in the process of unilaterally listing the company’s securities. Here’s an update from Brian Breheny of Skadden (also see this memo for a list if impacted companies):

A number of companies have recently received a letter from the St. Petersburg Stock Exchange (Exchange) in Russia stating that it has decided to admit the company’s securities to public trading on the Exchange. These letters do not request a response from the company and note that the Exchange’s decision does not impose any obligations on the company. Many companies received a similar letter from the Exchange in 2013. Companies generally responded to those letters and requested that their securities not be admitted to trading on the Exchange. It is our understanding that, as a result, the Exchange did not proceed with the admissions.

In July 2014, there were a number of changes to the Russian securities markets laws that regulate the procedures for listing of foreign securities in Russia. These changes further facilitate the listing of securities by Russian stock exchanges without the consent of the issuing company. and relieve the issuers from certain Russian reporting and disclosure obligations by shifting the burden of compliance onto the relevant exchange. Because of these changes, we expect that the Exchange will not be amenable to ceasing the admission of foreign securities to trading.

– Broc Romanek

December 1, 2014

SEC’s Reg Flex Agenda: Pay Rulemakings Pushed Back to October ’15

Here’s something I blogged about last Monday on As I have blogged many times (here’s the latest one), the SEC’s Reg Flex Agendas tend to be “aspirational” – and experience bears that out as the SEC often misses its “targeted” deadlines. So no sooner than I blogged about Corp Fin’s silence about the timing of the Four Horsemen rulemakings at the ABA Fall meeting on Friday, the SEC issued its latest Reg Flex Agenda. This Reg Flex Agenda notes that the pay ratio rules would be adopted by October 2015 (same with investment managers disclosing their say-on-pay votes) – and that the clawback, pay-for-performance and hedging rules would be proposed by October 2015 as well. We’ll see if that really happens. Don’t hold your breath…

As noted in this WSJ article (and discussed in this Cooley blog), three Republican members of Congress have asked the SEC to slow down on its pay ratio rulemaking.

ISS & Glass Lewis: December Deadlines For Your Peer Group Updates

For those that want to make changes to the peer groups used by ISS and Glass Lewis, the proxy advisors have kicked off their semi-annual update processes, allowing companies to inform them of any peer group changes that will be disclosed in their next proxy statements. The deadlines are:

ISS – December 11th
Glass Lewis – December 31st (via Equilar’s site)

Our December Eminders is Posted!

We have posted the December issue of our complimentary monthly email newsletter. Sign up today to receive it by simply inputting your email address!

Broc Romanek