March 20, 2015

SEC Chair Speaks: Fee-Shifting, Activism & Proposal No-Action Process

Yesterday, SEC Chair White delivered this speech that:

– Warned that someday the SEC might shift its focus on fee-shifting bylaws from concerned only about adequate disclosure to taking action to ensure shareholders aren’t stifled from seeking redress (see this blog; also see this blog about how Prof. Coffee found defects in Delaware’s proposed fee-shifting legislation)

– Noted some activism is “constructive” and said that in “certain situations, activism seeks to bring about important changes at companies that can increase shareholder value” (see this WSJ article & NY Times article about how Delaware CJ Strine wants the SEC to enhance its 13D disclosure rules on activism)

– On the debate over the SEC’s “no view” on Rule 14a-8(i)(9) this season (see this new letter from the Business Roundtable on that topic), she said (see this blog):

If a management proposal is made in response to a shareholder proposal on the same subject matter, does that end the inquiry — and the company may exclude the shareholder proposal because it ‘directly conflicts’ with management’s proposal? What if the proposals have the same subject matter, but the terms differ? What if management’s proposal could be viewed as a proposal that, if adopted, may purport to provide shareholders with the ability to do something, such as call a special meeting or include a nominee for director in a company’s proxy materials, but that, in fact, no shareholder would be able to meet the criteria to do so? If a company excludes a shareholder proposal because it conflicts with the company’s own proposal on the same subject matter, should the company have to disclose to its shareholders the existence of the shareholder proposal? What if the company’s competing proposal was offered only in response to the shareholder’s proposal — should the company have to disclose its motivations for its own proposal? …. In impartially administering the rule, we must always consider whether our response would produce an unintended or unfair result. Gamesmanship has no place in the process.

More on “MD&A Omissions Can Be Actionable in Section 10(b) Claims”

A few months ago, I blogged about a split between the 9th Circuit and 2nd Circuit on whether an alleged failure to make a disclosure required by Item 303 of Regulation S-K is an actionable omission under Section 10(b) and Rule 10b-5. Now, Kevin LaCroix blogs about a recent decision in Tile Shop Holding Securities Litigation, in which District of Minnesota Judge Ann Montgomery followed the Second Circuit’s ruling on the question and held that an alleged failure to make a disclosure under Item 303 can serve as the basis of a Section 10(b) securities claim. The ruling is interesting in a number of other respects as well.

Battle Over SEC’s ALJs Takes a Turn

I’ve blogged before about the controversy over the SEC’s use of administrative law judges. Here’s the intro of this Reuters article:

As the Securities and Exchange Commission follows through with its promise – or threat, depending on how you look at these things – to bring more of its enforcement actions as administrative proceedings before judges employed by the commission, at least a half-dozen defendants have brought constitutional challenges to the SEC’s right to pursue charges outside of federal district court. They’ve asserted two different theories: First, administrative proceedings violate their Seventh Amendment and due process rights because there’s no jury and the evidentiary rules favor the SEC; and second, the entire administrative law judge system violates separation-of-powers doctrine under the U.S. Supreme Court’s 2010 decision in Free Enterprise Fund v. Public Company Accounting Oversight Board.

The good news this week for SEC defendants facing administrative proceedings is that U.S. District Judge Rudolph Randa of Milwaukee believes both constitutional arguments to be “compelling and meritorious.” But the bad news in Randa’s ruling in Bebo v. SEC is bad indeed. The judge dismissed Laurie Bebo’s suit seeking a preliminary injunction to block the SEC from moving ahead with its administrative proceeding against the former CEO of Assisted Living Concepts, concluding that he does not have jurisdiction to resolve the constitutional questions.

Also check out this Reuters article entitled “Chamber to propose recommendations for SEC enforcement policies“…

More on “The Mentor Blog”

We continue to post new items daily on our blog – “The Mentor Blog” – for members. Members can sign up to get that blog pushed out to them via email whenever there is a new entry by simply inputting their email address on the left side of that blog. Here are some of the latest entries:

– Transition Timeline for New COSO Framework
– Restatements Have Fallen Sharply Since SOX
– Survey: Benchmarking the Accounting & Finance Function
– Directors: Recognizing & Reacting to Red (or Yellow) Flags
– FASB Issues Going Concern Assessment & Disclosure Standard

– Broc Romanek