Monthly Archives: March 2015

March 17, 2015

Survey Results: Shareholder Engagement

Here’s the results from our recent survey on shareholder engagement:

1. For our proxy season-related efforts (ie. not the normal IR stuff), this number of our staffers handles most of the communications with our institutional shareholders:
– More than 3 – 10%
– 3 – 30%
– 2 – 20%
– 1 -30%
– None – 10%

2. Before our annual meeting, our company typically has face-to-face engagement with this number of institutional shareholders:
– More than 12 – 20%
– 7-12 – 10%
– 4-6 – 20%
– 2-3 – 30%
– 1 – 0%
– None – 20%

3. Before our annual meeting, our company typically receives this number of requests for face-to-face meetings from our institutional investors:
– More than 12 – 0%
– 7-12 – 0%
– 4-6 – 10%
– 2-3 – 30%
– 1 -10%
– None – 50%

Take a moment to participate in our “Quick Survey on Hedging Policies” and our “Quick Survey on Conflict Minerals.” I also just posted this “Quick Survey on Currency Fluctuations for Incentive Compensation.”

Aiding & Abetting Defendants: Motion for Amended Complaint Seeks to Add Company Counsel!

OMG! This motion to amend the complaint in Chen v Howard-Anderson (“aka Occam”), CA No. 5878-VCL (Del. Ch.) is sure to raise eyebrows as it indicates a willingness to bring aiding & abetting claims against company counsel and not just financial advisors and counterparties – something rarely seen before in the public company M&A context. The oppositions to the motion filed on March 4th were filed confidentially. Argument on the motion to add company counsel is being held today.

In light of the prisoner dilemma type incentives created by the Delaware Uniform Contribution Among Tort-feasors Law (DUCATL) – as interpreted by the Delaware Chancery Court in Rural/Metro – several commentators have suggested that defendants are increasingly likely to break ranks rather than present a united front in defense of aiding & abetting claims. This likely will contribute to a rise in company counsel appearing as defendants, if not initially included in the complaints filed or in cross-claims filed by co-defendants seeking to preserve and maximize rights of contribution or credit for settlements under DUCATL. This could get real messy.

Like Rural/Metro, the motion to amend the complaint adds new defendants to an action in which discovery is well advanced if not substantially complete, potentially requiring the new defendants – at least Jefferies (like RBC in Rural/Metro) – to go to trial based on a record, particularly discovery – that they may have had little if any role in creating. See paragraph 7 of the motion acknowledging that it is being filed four years after the hearing on a preliminary injunction in the matter.

Form S-8 Share Counting, Fee Calculations and Other Tricks of the Trade

We just mailed the January-February issue of The Corporate Counsel. The issue covers a slew of issues related to Form S-8, such as:

– Deciding Whether Plan Offers Must Be Registered or Exempt
– Eligibility to Use Form S-8
– The Need To Register “Plan Interests”
– The Need To Register Deferred Compensation Plan Obligations
– Calculating Filing Fees
– “Share Counting”: Determining How Many Shares To Register
– A Sample Spreadsheet to Help You Audit Your Plan

Act Now: Try a no-risk trial now to get a non-blurred copy rushed to you. Also tune in for our upcoming webcast with the same title as this issue of The Corporate Counsel..

– Broc Romanek

March 16, 2015

SEC’s “RoboCop” Moves on Schedule 13Ds

On Friday, the SEC brought 8 enforcement actions against Schedule 13D filers for failing to amend their Schedules. Here’s a good description from this blog by Steve Quinlivan of Stinson Leonard Street:

It’s well known that Federal securities laws require beneficial owners to promptly file an amendment when there is a material change in the facts previously reported by them on Schedule 13D, commonly referred to as a “beneficial ownership report.” It sounds easy to comply with, but the 13Ds can be on file for years, the obligations can be forgotten and facts can change rapidly in certain circumstances. The SEC has now sent a strong reminder to the world that it takes 13D updating obligations seriously. The SEC charged eight officers, directors, or major shareholders for failing to update their stock ownership disclosures to reflect material changes, including steps to take the companies private. Each of the respondents, without admitting or denying the SEC’s allegations, agreed to settle the proceedings by paying a financial penalty.

The SEC’s orders find that the respondents took steps to advance undisclosed plans to effect going private transactions. Some determined the form of the transaction to take the company private, obtained waivers from preferred shareholders, and assisted with shareholder vote projections, while others informed company management of their intention to privatize the company and formed a consortium of shareholders to participate in the going private transaction. As described in the SEC orders, each respective respondent took a series of significant steps that, when viewed together, resulted in a material change from the disclosures that each had previously made in their Schedule 13D filings. According to the SEC’s orders, some of the respondents also failed to timely report their ownership of securities in the company that was the subject of a going private transaction. In addition, six respondents only disclosed their transactions in company securities months or years after the fact, not within two businesses days, as required for these disclosures by insiders.

Left unanswered is the question of “what can I do before I have to amend my 13D and inform the world?”

These don’t look like broken windows to me, although some will claim they are, but it’s probably more of the SEC’s robo-cop program. How hard is it to identify the universe of going private transactions, who had 13D’s on file and who didn’t amend them. Expect the SEC to continue this approach to pick off more low hanging fruit and send messages in the future.

And here’s this Cooley blog on this development. And Alan Dye has blogged on the Section 16 aspects of this development…

Corp Fin’s Policy Statement: Reg A & D Waivers

On Friday, Corp Fin issued this policy statement on waivers under Regulation A and D. This was just one day after SEC Chair White delivered this speech in which she stated that charging individuals is a more effective tool to deter future misconduct than withholding waivers. In other words, refusing to grant a waiver should not be used as an enforcement tool. She also supported the Staff’s process by which they review waiver requests – noting that it’s “rigorous.”

Lately, the heated battle among the SEC Commissioners over “bad actor” waivers has resulted in the Commissioners themselves deciding whether to grant a waiver rather than the Staff. Here’s an excerpt from White’s speech that sums up how that looks to the outside world:

Unfortunately, the public discussions about the SEC’s waiver decisions sometimes do not recognize these important distinctions and can take on a political tone that can blur the analysis.

Here’s an excerpt from this blog by Steve Quinlivan that nicely sums up where we go from here: “The policy looks fair on its face. Application is another thing.
Initially I think it will lead to lots of those uncomfortable conversations between client and counsel that say “on the one hand these facts are good” and “on the other hand these facts are not.” Should the SEC continue to publish waiver decisions and enough information to ascertain the reasons therefore, eventually the securities bar will figure it out.”

Transcript: “Conduct of the Annual Meeting”

We have posted the transcript of our recent webcast: “Conduct of the Annual Meeting.”

– Broc Romanek

March 13, 2015

Proxy Access: GE Permitted to Exclude “Substantially Implemented” Shareholder Proposal

As I predicted in my blog last month, companies that adopt proxy access bylaws in the face of a shareholder proposal are successfully arguing that the shareholder proposal is “substantially implemented” under Rule 14a-8(i)(10). General Electric is the first company to receive a favorable Corp Fin response along these lines (signed by Corp Fin’s Chief Counsel). The now-mooted shareholder proposal sought thresholds of 3%/3 years, with a cap of 20% of the board. GE’s bylaw included these same thresholds, but added a group limit of 20.

And here’s a nice piece of “SEC posting practices” trivia! This was a reconsideration of GE’s initial no-action request that originally argued another exclusion basis (but not (i)(9)) before GE adopted its own proxy access bylaw. So if you’re one of the crazies that looks at the SEC’s chronological list of responses posted every day and didn’t see this one – that’s because it’s included in the “2014 list” of responses because it’s a follow-up to a request made in December 2014. Meanwhile, here’s news how 40% of shareholders supported the proxy access shareholder proposal at Apple…

Speaking of access, although the type of provision that Jim McRitchie criticizes at Pru in his blog was not adopted as part of Rule 14a-11, it’s become standard as part of the “private ordering” that is going on. As of today, 19 of the 24 companies that have adopted proxy access included this type of provision – and 15 of those impose exactly the same provision as Pru (a 25% minimum vote threshold and a two-year delay period). Personally, I think it’s reasonable to cut someone off if they don’t get 25%. Bear in mind that under this limitation, a shareholder who doesn’t cross the 25% threshold can still renominate the candidate – they just have to bear the expense themselves instead of causing the company to be the only one bearing the expense of a contest.

Proxy Statements: GE & Coca-Cola File!

Two of my favorite companies have filed their proxy statements:

General Electric’s proxy statement (Mark Borges has already blogged about GE’s comp disclosure)
Coca-Cola’s proxy statement (here’s the interactive version – and here’s a blog post by Coke’s comp committee chair!)

Come hear GE’s Aaron Briggs & Coca-Cola’s Jared Brandman (along with Compensia’s Mark Borges & Addison’s Nina Eisenman) during the panel entitled “Disclosure Effectiveness: What Investors Really Want to See” at our big conference in San Diego & video webcast. Register now for the early bird discount and save 33%!

Senate Bill: Seeks to Raise Rule 701 Threshold

Here’s this Cooley blog by Cydney Posner:

Senators Pat Toomey (R., PA) and Mark Warner (D., VA) have introduced Senate Bill 576, the ‘‘Encouraging Employee Ownership Act.’’ The bill would require the SEC, within 60 days after enactment, to raise the threshold in Section (e) of Rule 701, the exemption from registration for privately held companies for offers and sales of compensatory securities to employees. Currently, Rule 701(e) requires that, if the aggregate sales price or amount of securities sold during any 12-month period exceeds $5 million, the company must deliver additional disclosure to the employees, including financial statements and other potentially confidential information. The bill would raise the disclosure threshold from $5 million to $10 million, and index it for inflation every five years to reflect changes in the CPI.

Warner’s press release explains that “companies that wish to issue more than $5 million in stock to employees must comply with sensitive reporting and disclosure requirements. For new and fast-growing companies, stock compensation is a valuable tool, but many privately-held companies are reluctant to issue their workers more than the $5 million in stock that would trigger mandatory reporting of potentially sensitive information.” According to the WSJ, the “bill’s path through Senate is unclear. There’s no stand-alone companion legislation in the House, but the same changes were included as part of a broad package of financial services bills the House passed in January by a vote of 271-154. The broader House bill included a controversial delay to a provision requiring that banks sell stakes in certain complex securities, a provision many congressional Democrats and the White House oppose.”

– Broc Romanek

March 12, 2015

Conflict Minerals: House Republicans Want SEC to Drop Appeal

Here’s the intro from this Cooley blog by Cydney Posner (and here’s a blog on whether Congress will actually revisit the conflict minerals rule):

According to this article from the Washington Post with Bloomberg, in February, House Financial Services Committee Chair Jeb Hensarling and three other House members (Scott Garrett of New Jersey, Bill Huizenga of Michigan, and Ed Royce of California) sent a letter to SEC Chair Mary Jo White urging that the SEC end its appeal of the conflict minerals case, National Association of Manufacturers, Inc. v. SEC, currently pending in the DC Circuit. Whether the pressure will have any impact remains to be seen. Hensarling asked for a report on the amount of funds and time spent defending the rule.

Meanwhile, see this Keith Bishop blog entitled “Oxfam America Argues SEC Has “Unlawfully Withheld And Unreasonably Delayed” Resource Extraction Rule.” And the transcript from our recent webcast – “Conflict Minerals: Tackling Your Next Form SD” – continues to draw many eyeballs…

“Accredited Investors”: Meeting of Advisory Committee on Small & Emerging Companies

This MoFo blog and SIFMA recap covers the latest committee meeting that dealt with the hot button topics for smaller companies – & this discussion draft on the “accredited investor” definition is worth reading…

FASB Eliminates Extraordinary Items Reporting

Here’s a blog from Linda Griggs, Rani Doyle & Sean Donahue of Morgan Lewis:

In January, the FASB adopted a final Accounting Standards Update that eliminates the requirement that preparers report events that meet the criteria for extraordinary classification separately in an income statement, net of tax and after income from continuing operations. Not only was the classification of an event as extraordinary time consuming and somewhat complex for preparers, but users advised the FASB that the extraordinary item classification was rare and not very useful. The FASB’s action was part of its Simplification Initiative, which is intended to reduce costs and complexity while “maintaining or improving the usefulness” of financial information to users. Through this action, the FASB eliminated an inconsistency with International Financial Reporting Standards’ IAS 1, “Presentation of Financial Statements,” which prohibits the presentation and disclosure of extraordinary items on an income statement.

The existing accounting standards define an extraordinary event as one that meets both of the following criteria and is material when compared to income before extraordinary items, the trend of annual earnings before extraordinary items, or some other appropriate criteria:

1. Unusual nature. The underlying event or transaction should possess a high degree of abnormality and be clearly unrelated to, or only incidentally related to, an entity’s ordinary and typical activities taking into account the environment in which the entity operates.
2. Infrequency of occurrence. The underlying event or transaction should be of a type that would not reasonably be expected to recur in the foreseeable future, taking into account the environment in which the entity operates.

The existing standard excludes various gains and losses, such as the write-down or write-off of receivables, inventories, and other intangible assets; foreign currency gains and losses; gains or losses from the disposal of a component of an entity or the sale or abandonment of property, plant, or equipment; and gains and losses from the effects of a strike, including those against competitors and major suppliers. Examples of events that meet the current standard are gains or losses that are a direct result of a major casualty, such as an earthquake or an expropriation.

The elimination of the extraordinary item classification will not reduce information about events that would have been classified as extraordinary. Preparers of financial statements will need to report separately in the income statement as a part of income from continuing operations, or, alternatively, report in the notes to the financial statements events that previously would have met the definition of an extraordinary item. This requirement is consistent with the requirement in existing GAAP for preparers to report the nature and financial effects of material events that are “unusual in nature” or of a type that indicates “infrequency of occurrence,” as each of those terms is explained in the current definition of an extraordinary item noted above.

Accounting Standards Update No. 2015-01 is effective for fiscal years, and interim periods within those fiscal years, beginning after December 15, 2015. A preparer may adopt the standard early, as long as the preparer adopts the standard from the beginning of its fiscal year. In addition, a preparer may adopt the standard on a retrospective basis.

SCOTUS Interprets Sarbanes-Oxley Evidence Destruction Provisions

This blog by Steve Quinlivan covers a Supreme Court case that makes it clear that Sarbanes-Oxley doesn’t apply to fish…

– Broc Romanek

March 11, 2015

Proxy Access: Pru Becomes 1st to Adopt Without Shareholder Proposal Pressure (& 1st “Dueling Proposals” Proxies Filed)

Big news! Prudential has become the first company to adopt proxy access proactively without having a shareholder proposal. Under a bylaw amendment adopted yesterday, Pru adopted a 3%/3-year formula – along with a group cap of 20 shareholders & nomination cap of 20% of board seats. Coincidence that Peggy Foran is the corporate secretary at Pru? Now you know why she has earned the “Lifetime Achievement Award” at the upcoming “The Women’s 100” conference.

Meanwhile, Exelon filed its preliminary proxy statement yesterday and it includes dueling proxy access proposals: the NYC Comptroller proposal and an alternative board proposal with a formula of 5%/3-years (group cap of 20 investors & 20% of board). Interestingly, the board proposal is also precatory. AES Corp and Cloud Peak Energy also have filed their proxy statements with dueling proposals. AES Corp with a management proposal that is non-binding – and Cloud Peak with a binding management proposal (& the proxy includes bylaw text). Hat tip to Cleary’s Nick Grabar & Sustainalytics’ Gary Hewitt for pointing these out!

Remember that our webcast is coming up on March 24th to discuss all these developments: “Proxy Access: The Halftime Show.”

Usability Study: Investors Frustrated With Disclosure

Add this blog by Davis Polk’s Ning Chiu to the one I recently posted on our “Proxy Season Blog”…

The SEC’s Investor Advocate Wants Layered Disclosure & Structured Data

The SEC’s relatively new Investor Advocate – Rick Fleming – delivered his first speech, describing his office’s role and providing a view about how companies can make their disclosure more effective with the use of “layered data” and structured data. Here’s an excerpt:

In my view, if the SEC wants issuers to provide effective disclosure to the 21st Century investor, the data needs to be both layered and structured. To understand what is meant by the term “layered data,” simply picture a company website. The company does not put all the information into one long web page that requires users to scroll down endlessly. Rather, the information is split into manageable pieces that utilize appealing graphics, with tabs and hyperlinks to help users quickly find the information that is most important to them. By similarly layering the data in an S-1 or 10-K, the SEC could greatly assist the individual investor who takes it upon herself to research an investment opportunity.

In contrast, structured data could assist the analyst or intermediary who wants to search data dynamically and compare multiple companies by slicing and dicing the data. Millions of investors in pension plans and other pooled investment vehicles could greatly benefit from these enhanced analytical tools, and smaller reporting companies may find greater trading volume in their shares as analysts are able to use data more effectively and cover more companies.

Fleming also questioned the new bill – HR 37, the “Promoting Job Creation and Reducing Small Business Burdens Act” – which was recently passed by the House as it would create an exemption from the XBRL filing requirements for 60% of public companies.

– Broc Romanek

March 10, 2015

NYSE Broadens “Late Filer” Rule to 10-Qs & “Materially Defective” Filings

As noted in this memo from the NYSE, the exchange has amended its rules so that companies that don’t timely file their 10-Qs with the SEC – or who has a 10-K or 10-Q that’s materially defective – is considered a “late filer.” Previously, only a late 10-K would cause a company to be deemed “late.” “Materially defective” situations include filing a 10-K without an auditor’s report or the auditor subsequently withdraws its report, or a company discloses that its financials should no longer be relied upon. Hat tip to John Newell of Goodwin Procter!

I’m sad to note the passing of fellow blogger Jim Hamilton. Here’s an “in memoriam” note from his blog.

Disclosure Usability: Guess Which Symbol Matches Which Director Attribute!

As noted in this 40-second video, some companies are using nifty symbols to supplement their director attribute disclosures (note: symbols are fuzzy in the video due to low resolutions in the proxy that don’t work neatly when copying into a vid):

Fee-Shifting & Exclusive Venues: Delaware Legislature Proposes Amendments

As I blogged yesterday on, here’s news from Cliff Neimeth of Greenberg Traurig:

With these proposed amendments, the Delaware legislature is prepared to act over organic fee-shifting and exclusive venue provisions and to consider amending Delaware’s appraisal statute. The proposed amendments – new DGCL Sections 102(f) and 109(b) – would, if adopted, preclude the adoption of fee-shifting bylaws and C-of-I provisions in the case of Delaware stock corporations.

As you recall, the ATP decision involved a non-stock association and its purported (broader) application outside that context has been vehemently criticized by numerous constituents. Several public companies have adopted such bylaws in the wake of the ATP decision and were forced (with considerable embarrassment) to reverse such adoption when they realized that their reading of ATP was a stretch or at least premature, and also due to institutional stockholder backlash and proxy advisor “withhold vote” policies effectively opposing such provisions implemented by unilateral board action.

Here are a few random thoughts on the proposed amendments:

– In the case of exclusive venue bylaws (now commonplace for hundreds of public companies in Delaware and in at least four other jurisdictions), the proposed amendments – DGCL Section 115 – would statutorily validate such provisions on a facial basis. Meaning, they still can be subject to challenge “as applied” given a particular set of facts and circumstances (e.g., adoption after the commencement of subject litigation or in some other context constituting a breach of fiduciary duty).

– The Delaware Court of Chancery recently upheld the adoption by a Delaware corporation of bylaws selecting North Carolina as the exclusive venue for intra-corporate disputes. The proposed amendments to the DGCL would permit such foreign jurisdiction selection so long as the organic language does not 100% foreclose such actions in Delaware courts.

– Under the proposed amendments, stockholder agreements containing such provisions that bind the contracting parties would, however, remain permissible.

– The personal jurisdiction issue raised in the commentary is easily addressed by adding consent to jurisdiction and other language in the relevant bylaw or charter provision. These provisions also are written subject to waiver by the corporation so that there is a “fiduciary out” in the case of a potential “as applied” challenge.

– The initiative to amend Section 262 is in response to the increasing practice of merger arbs and hedge funds to purchase shares post-record date (for the vote on the merger agreement) and assert appraisal rights so long as it can be demonstrated that the record date holder (e.g, CEDE & Co.) holds more shares that were not voted for the merger agreement than the number of shares for which the beneficial owner (the fund) is seeking appraisal. Because Cede & Co. holds shares in fungible bulk for its participant and customer accounts, that condition can be readily satisfied.

– Recent Delaware decisions ( and Merion Capital) have confirmed that the beneficial owner does not need to demonstrate that it’s specific shares were not voted for adoption of the merger agreement.

– In that statutory interest for properly perfected appraisal shares is 500 bps above the prevailing federal discount rate, even if the Delaware Court of Chancery were to determine that the fair value of the appraisal shares was the merger deal price (which a couple of recent cases in fact held), the arb still makes a tidy profit because of the statutory interest rate spread.

– Various inconsistencies in DGCL 262 regarding the procedures for beneficial owners and record date holders to perfect appraisal are the subject of potential legislative clarification.

As always, all remains to be seen, but it is expected that the proposed fee-shifting and exclusive venue amendments will be adopted substantially as proposed.

– Broc Romanek

March 9, 2015

Proxy Access: A Few Investors Speak

Glass Lewis has made the 56-minute audio archive from their recent webcast on proxy access freely available, with Glass Lewis’s Bob McCormick moderating a panel of T. Rowe Price’s Donna Anderson, New York City Comptroller’s Michael Garland, TIAA-CREF’s Bess Joffe and CalPERS’ Anne Simpson. Remember that our own webcast is coming up on March 24th – “Proxy Access: The Halftime Show” – during which Morrow’s Tom Ball, Davis Polk’s Ning Chiu, Covington & Burling’s Keir Gumbs, Gibson Dunn’s Beth Ising and Sullivan & Cromwell’s Glen Schleyer will analyze how companies decided to handle the new wave of proxy access shareholder proposals…

Sample Disclosures: Audit Committee Reports

This CAQ report entitled “Enhancing the Audit Committee Report” includes excerpts from various audit committee reports that – in the view of “The Center for Audit Quality” – represent good disclosure. The examples start on page 9 (with an excerpt from the 2013 Mondelez report). Dave wrote a long piece about the CAQ report (and subsequent publications) and the pressure on audit committee disclosures in the Nov-Dec 2014 issue of The Corporate Counsel, so you want to check that out too…

Webcast: “The Top Compensation Consultants Speak”

Tune in tomorrow for the webcast – “The Top Compensation Consultants Speak” – to hear Mike Kesner of Deloitte Consulting, Blair Jones of Semler Brossy and Ira Kay of Pay Governance “tell it like it is. . . and like it should be.”

– Broc Romanek

March 6, 2015

More on “SEC v. China: Tug-of-War Over Audit Files Finally Ends!”

Recently, I blogged about how the China-based affiliates of the Big 4 (Deloitte Touche Tohmatsu, Ernst & Young, KPMG and PwC) settled SEC administrative charges by each paying $500k and admitting that prior to the commencement of the agency’s enforcement proceedings, they didn’t provide the SEC with the work papers for audits conducted for US companies. Here’s some thoughts from Baker & McKenzie’s Dan Goelzer on the settlements:

While the settlement is a victory for the SEC in the sense that it results in findings that the four firms violated the law and imposes sanctions against them, as a practical matter, the settlement seems to vindicate the firms’ position. In the future, a firm’s obligation in the event of an SEC work paper request will be to provide the work papers to the Chinese authorities, who will then make the final decision as to what should be provided to the SEC. This approach seems to acknowledge that the firms need not violate Chinese law in order to comply with Section 106, just as the firms had argued.

From a public company audit committee perspective, the significance of the settlement is that it removes the risk that the Big Four might be unable, for some period of time, to perform audit work in China, thus complicating the ability of SEC-registered companies with operations in China to complete their audits. However, the settlement leaves unresolved the issue of PCAOB inspections of China-based accounting firms. Unless and until the Chinese government consents to PCAOB inspections in China, the risk remains that the China firms will be de-registered by the PCAOB and that audits of U.S. public companies with operations in China will be disrupted.

In comparison, this WSJ editorial – and piece from the “China Accounting Blog” thinks that the SEC caved; here’s an excerpt:

I believe that the SEC went after the Big Four firms intending to use the lawsuit as a way to coerce China to the negotiating table. The Big Four are not the problem with the widespread fraud that has plagued US listed Chinese companies. The problem, of course, is corrupt company officials. The firms should have done a better job vetting new clients, and have faced challenges with adapting audit processes to Chinese business practices. The explosive growth of these firms has left them short of experience – especially with inadequate numbers of “no-hair, gray haired” partners with well-seasoned judgment. In my opinion, the Big Four are doing their best in a difficult market, and because of the failure of the SEC and PCAOB to effectively regulate US listed Chinese companies, the Big Four are the only meaningful line of defense for investors.

In my view, banning the Big Four was never the objective of the SEC. The suit was a way to show Chinese regulators that the SEC was willing to deploy the “nuclear option” of kicking Chinese companies off U.S. exchanges. The SEC apparently believed that the threat of delisting Chinese companies would bring Chinese regulators to the negotiating table. The SEC miscalculated and Chinese regulators called their bluff. In the end, banning the firms, which would lead to a mass delisting of Chinese companies from US exchanges, was simply a step too far for the SEC to take. I am sure the SEC was heavily lobbied by US investment banks, lawyers, and accounting firms that have lucrative business interests in keeping capital flowing.

So today we have different rules for Chinese companies that list in the US than we have for others. Not only is the SEC dependent on Chinese regulators to decide what documents they can see, the PCAOB remains unable to conduct inspections of auditors. But the different rules go beyond auditing. Other rules, like Regulation Fair Disclosure, do not apply to US listed Chinese firms, creating an unfair market for investors.

My Ten Cents: Alternative Careers for Lawyers

My ten cents is included in this piece entitled “Alternative Careers for Lawyers” from the “ABA Law Journal”…

The SEC Totally Cares About Its Injunctions

In this blog, David Smyth does an about-face from his other blog on the topic of how the SEC handles injunctions. I can relate as blogging sometimes tests your mettle as its challenging to think of all the possible permutations about a topic when writing about it. Here’s an excerpt from the new blog:

Last week I wrote a post discussing the injunctions the SEC typically obtains against defendants in federal court. I noted the oddity of these obey-the-law injunctions and wondered aloud why the Commission never pursues findings of contempt when those defendants disobey the very provisions they were ordered never to disobey again.

In a comment to the post, Robert Knuts noted “[t]wo simple reasons. 1. A permanent injunction triggers potential collateral consequences under various provisions of the Federal securities laws. 2. If such a recidivist went to trial, the violation of the prior injunction would likely lead to maximum civil penalties.”

These are both probably true. The first certainly is. Especially for large financial institutions, limiting and avoiding the collateral consequences of SEC injunctions and other regulatory sanctions can be almost its own practice area. I had meant to mention this in the original post and forgot in the late night fog of composition. As for the second, I don’t have supporting data, but violation of prior injunctions certainly wouldn’t be helpful to a defendant in a second go-round with the SEC in federal court. So the original injunction would have value to the Commission in that respect.

– Broc Romanek

March 5, 2015

ISS’ Equity Plan Scorecard: 3 New FAQs Added

A few days ago, ISS released the following three new FAQs to its “Equity Plan Scorecard FAQs” (so there were 20 FAQs before; now there are 23):

FAQ #11: Are there additional factors that could result in a recommendation on an equity plan proposal that differs from the EPSC “score” recommendation, including proposals with “bundled” amendments?

Yes. Plans that seek approval solely to qualify awards as tax deductible compensation under Internal Revenue Code Section 162(m), for example, will generally receive a positive recommendation as long as all members of the plan’s administrating committee are determined to be independent directors, per ISS’ standards. In addition, plans being amended without a request for additional shares or another modification deemed to increase potential cost (e.g., extension of the plan term) may receive a recommendation based on the overall impact of the amendments regardless of the EPSC score – i.e., whether they are deemed, on balance, to be beneficial or detrimental to shareholders’ interests.

FAQ #22: How will ISS assess a plan’s minimum vesting requirement for EPSC purposes?

In order to receive EPSC points for a minimum vesting requirement, the plan should mandate a vesting period of at least one year which should apply to no less than 95 percent of the shares authorized for grant.

FAQ #23: How does the treatment of performance-based awards affect determination of whether a plan provides for automatic single-trigger accelerated vesting upon a change in control?

ISS will deem performance-based awards as being subject to automatic accelerated vesting upon a CIC, unless (1) the amount considered payable/vested is linked to the degree of performance attainment as of the CIC date, and/or (2) the amount to be paid/vested is pro-rated based on the time elapsed in the performance period as of the CIC date.

15 Cool Things About GE’s 2015 Form 10-K

This 1-minute video describes how General Electric overhauled its Form 10-K this year to make it investor friendly (here’s a hard copy of the slides in the video):

A View on Proxy Access

In this podcast, Matt Orsagh of the CFA Institute discusses proxy access, including:

– Can you summarize the key results of the CFA Institute’s 2014 research on proxy access?
– Given that proxy access is no longer a back burner issue, does the CFA Institute still believe that SEC rulemaking mandating proxy access is warranted or necessary?
– Does the CFA Institute’s position on proxy access take into account the diverse investor and issuer communities, and associated disparate views on proxy access?
– Does the CFA Institute support private ordering?
– What should investors and companies do now in light of the SEC’s suspension of views on the application of 14a-8(i)(9)?

Also see this blog by Mike Gettelman about how a management proxy access proposal would trigger a preliminary proxy statement filing…

– Broc Romanek

March 4, 2015

Disclosure Usability: GE’s Next-Gen 10-K!

In an effort to entice more investors to read it, General Electric has overhauled its Form 10-K this year – and the final product is quite impressive. In a nutshell, the company has applied its enhanced usability principles that it learned from upgrading its proxy statement (see my video from last year about that) to its 10-K. A video on this exciting development is coming soon – but you can learn much about what GE did to enhance the 10-K in this 15-page presentation posted in our “Usable Disclosure” Practice Area.

Here’s a WSJ article on GE’s 10-K. And here’s a Seeking Alpha interview with GE’s CFO Jeff Bornstein entitled “How We Have Reimagined Our Financial Reporting”…

Warren Buffett’s Annual Letter to Shareholders

A few days ago, Warren Buffett released his annual letter to shareholders, his 50th and its more than 40 pages! Here are some articles about it:

– MarketWatch’s 13 Quotes from Warren’s Latest
– WSJ’s “Crib Sheet for CFOs on Buffett’s 50th Annual Letter
– WSJ’s “Analysis: Warren Buffett’s Annual Berkshire Letter
– WSJ’s “Annotating the Oracle: Experts Weigh In on Berkshire’s Annual Letter
– Fortune’s “Warren Buffett: My $100 billion blunder
– CNBC’s “Buffett: These investments are a ‘fool’s game’

Interestingly, Buffett’s annual letter declines to clarify the succession plan at Berkshire Hathaway (as noted in this article) – but Vice Chair Charlie Munger wrote his own letter (starts at page 38) to shareholders and named two potential CEO successors (as noted in this piece)…

Coming Soon: “The Women’s 100 Conference” in Palo Alto

I’m excited to say that we are holding a 2nd annual “Women’s 100 Conference” in DC this year on Monday, June 1st – and it’s already sold out without even marketing it (but the waiting list is short right now). In addition, I am holding a 1st annual on the West Coast – on Tuesday, June 9th in Palo Alto. That one is nearly sold out – but there are a handful of slots left (plus a few folks typically drop out – so there likely would be some movement if you get placed on a waiting list). The attendees are a mix of in-house, law firm & investors of all ages.

If you are interested in more information about either event, please email me. It is heavily geared towards networking and the panels are intimately interactive with the audience (see this framework & agenda and this 1-minute video from last year for an inkling of what the event is like)…

– Broc Romanek