May 7, 2015

Our New “Regulation D Handbook”

Spanking brand new. By popular demand, this comprehensive “Regulation D Handbook” covers how to engage an independent auditor, from the factors to be considered and engagement letter issues. This one is a real gem – 101 pages of practical guidance – and its posted in our “Regulation D” Practice Area.

Political Contributions Disclosure: Required by Executive Order?

With the million-plus commentators supporting the rulemaking petition for political contribution spending seeming to have no effect on the prospects of the SEC wading in on this issue comes this news from this blog:

At least 70 of the top 100 companies in the U.S. would be covered by a proposed executive order to require federal contractors to disclose their political spending, according to an analysis released by Public Citizen. The liberal watchdog group and other supporters of regulating money in politics have called on President Barack Obama to issue an order requiring government contractors to disclose their spending to influence elections, including money funneled through nonprofit organizations such as the U.S. Chamber of Commerce and others, which don’t disclose their donors.

If Obama were to issue such an order, it would reach at least 70 percent of the Fortune 100 companies, according to a Public Citizen analysis released April 27. The group reviewed government contracts held by the 100 largest companies in the U.S.—as ranked by Fortune Magazine for 2014—and found that 70 of the companies had federal contracts totaling $100,000 or more from April 2014 to April 2015. Obama administration officials have acknowledged considering such an order, but have given no indication that it will be issued.

White House spokesman Josh Earnest said earlier this month that the Obama administration has no specific plans to push for stronger campaign finance laws as the 2016 presidential election campaign gears up, with predictions of record spending from super political action committees (PACs) and other outside organizations not formally linked to candidates or political parties.

The companies identified in the Public Citizen study as holding government contracts represent a wide variety of industries, including car manufacturing, defense, technology, energy and banking. The individual companies with contracts include Apple Inc., AT&T Inc., Bank of America Corp., Boeing Co., Exxon Mobil Corp., General Motors Co. and more. Nine of the top 10 companies on the Fortune 100 list were identified as government contractors, with the retail giant Wal-Mart Stores Inc. as the only exception. “Because the federal government buys everything from toothbrushes to nuclear missiles, it is no surprise that most large companies are significant government contractors,” Weissman said in the Public Citizen statement.

The Public Citizen study looked at contracts signed within the last year and aggregated totals to establish whether a company had received more than $100,000 in contracts. Public Citizen added that the 30 companies in the top 100 that didn’t have $100,000 in government contracts came disproportionately from the insurance industry.

Corporate Loan “Proxy Put” Provisions Trigger D&O Litigation

Here’s an excerpt from this blog by Kevin LaCroix:

In the face of increasing investor activism, companies have adopted a number of defensive measures. Among these measures are a particular type of provision found in many corporate borrowers loan agreements – requiring the company to repay loans before they are due if a majority of the board is ousted – that are drawing increasing scrutiny. As these types of provisions have become more common, they have also attracted litigation. The boards of nearly a dozen companies have been hit with lawsuits alleging that the directors violated their fiduciary duties by allowing their companies to enter into credit agreements with these provisions. Developments in these cases may have implications for corporate boards. At a minimum the number of lawsuits that have been filed against corporate boards may have implications for D&O insurance underwriters.

– Broc Romanek