Monthly Archives: December 2018

December 12, 2018

Tomorrow’s Webcast: “Shareholder Proposals – Corp Fin Speaks”

Tune in tomorrow for the webcast – “Shareholder Proposals: Corp Fin Speaks” – with Corp Fin’s Matt McNair, who has headed the Division’s “Shareholder Proposal Task Force” for the past five years. Tune in to learn the experiences with implementing Staff Legal Bulletin 14I from this past proxy season – and learn the intricacies of new SLB 14J.

SEC Enforcement: Number of Actions Tripled in Last Six Months

Last month, John blogged about the Enforcement Division’s annual report on its activities – and how the SEC disputed calculations that showed a significant decline in actions over the last couple of years. This annual study from Cornerstone Research & NYU, which was released yesterday and breaks out the numbers for public companies, seems to support the SEC’s view – it shows that SEC enforcement actions more than tripled in the second half of the fiscal year, reversing the decline that began in 2017. In announcing the results of their study, the researchers highlighted these findings (also see this “D&O Diary” blog):

– The last quarter of FY 2018 saw the highest number of public company and subsidiary actions that also named individuals as defendants in a single quarter tracked by the Securities Enforcement Empirical Database (SEED).

– The SEC continued to bring the substantial majority (85 percent) of actions against public companies and subsidiaries as administrative proceedings in FY 2018. In contrast, the majority (55 percent) of actions without public companies or subsidiaries were filed as civil actions in FY 2018.

– Almost half (45 percent) of public company and subsidiary actions involved Broker Dealer or Investment Advisor/Investment Company allegations. This is consistent with the SEC’s focus on retail investors and the launch of its Retail Strategy Task Force at the end of FY 2017.

– More than half (61 percent) of public company and subsidiary defendants cooperated with the SEC during the fiscal year. This marked the fourth fiscal year in a row in which more than half of public company and subsidiary settlements noted some form of cooperation.

– The SEC imposed monetary penalties in nearly all (89 percent) of its FY 2018 settlements with public companies and subsidiaries. This percentage is consistent with the FY 2010–FY 2017 average of 84 percent.

More on “Comment Trends: Corp Fin’s ‘Top 10′”

Not too long ago, I blogged about trends in Corp Fin comment letters. We’ve since posted a few additional resources in our “Comment Letters” Practice Area – including this interactive summary from PwC and this 191-page roadmap from Deloitte.

This Audit Analytics blog reiterates that the overall number of comment letters has been declining for nearly a decade – but companies should stay attuned to perennial favorites (MD&A, non-GAAP) & trending topics (revenue recognition). The blog is particularly helpful because it includes sample comments – like these, which deal with revenue recognition:

– We note your disclosure regarding three performance obligations under your franchise agreements. It appears that you have concluded that these items are not distinct and therefore are not separate performance obligations given your conclusion that they are highly interrelated. Please revise your disclosure to clarify your conclusions. Reference 606-10-25-22.

– Please revise your disclosure to provide your accounting policy on revenue recognition as a result of your implementation of FASB ASC 606. Please refer to the guidance in FASB ASC 606-10-50 and Article 10 of Regulation S-X.

– Please revise your disclosure to provide your conclusion on the effectiveness or ineffectiveness of your Disclosure Controls and Procedures. In addition, please provide a detailed discussion on how the non-disclosure of your revenue recognition policy in the Form 10-Q affected your conclusion.

Liz Dunshee

December 11, 2018

SEC Chief Accountant: Recommendations for Your Financial Reporting Role

In connection with yesterday’s AICPA conference, SEC Chief Accountant Wes Bricker provided this statement on financial reporting & auditing issues that he’s been discussing with SEC Chair Jay Clayton and others. As you’d expect, a lot of the statement is aimed toward auditors – e.g. what they should be doing to improve quality. But the statement also emphasizes the role of companies in the financial reporting process – with plenty of recommendations for audit committees and management:

Internal controls – particularly where there are close calls as to a significant deficiency or material weakness, audit committees should pay extra attention to the adequacy of & basis for the company’s ICFR assessment, and seek training if necessary (citing this enforcement action). It’s vital to focus not just on actual misstatements but also whether it’s reasonably possible that a material misstatement won’t be prevented or detected in a timely manner.

Also remember that it’s the company’s responsibility to develop, maintain & assess ICFR – and that the thresholds for auditor attestation don’t change these requirements (it’s not obvious whether this remark is intended to foreshadow a change to the attestation requirement, which was discussed as a future possibility when the SEC increased the smaller reporting company threshold and in today’s Senate testimony by SEC Chair Jay Clayton). This blog from Cooley’s Cydney Posner reports that several members of the OCA Staff also discussed internal controls issues at yesterday’s AICPA Conference – with tips on how to assess controls and how to adequately disclose a material weakness.

CAMs – conduct a “dry run” so that the auditors & audit committee can discuss issues. It’s also important to understand that CAMs aren’t intended to duplicate management’s MD&A disclosure of critical accounting estimates.

Continuing education for audit committees – audit committee members must have time, commitment and experience to do the job well. Just possessing financial literacy may not be enough to understand the financial reporting requirements fully or to challenge senior management on major, complex decisions. Audit committees must stay abreast of these issues through adequate, tailored, and ongoing education.

Audit committee agendas – must be balanced toward understanding accounting, ICFR and reporting requirements. For example, as business, technology, accounting, and reporting requirements change, it is crucial that the audit committee understand management’s approach for designing and maintaining effective internal controls.

Voluntary disclosure – OCA Staff encourages audit committees for listed public companies of all sizes to communicate how the listing requirements related to the “appointment, compensation, and oversight of the work of any registered public accounting firm. . .” are carried out, especially among smaller companies. There are positive disclosure trends among S&P 1500 companies when it comes to disclosing considerations in appointing the audit firm, fee negotiations and evaluations – but there are opportunities for more progress among mid- and small-cap companies.

Company processes to ensure auditor independence – emphasizing the role of companies to promote compliance by regularly monitoring corporate structural changes or other operational events that may result in new affiliates or business relationships and timely communicating these changes to the auditor, as well as evaluating the sufficiency of these monitoring processes & practices. Also note that the OCA Staff is assessing comments on the auditor independence “loan” rule – final rulemaking is expected in 2019.

Auditor communications – to enhance oversight, audit committees should consider requesting additional voluntary information from the auditor to understand their level of investment in quality control functions, the connection of technology to audit quality and how audit firm performance compares to others.

New GAAP standards – continue to focus on implementing & refining compliance with new standards on revenue recognition, leases & current expected credit losses

“Accredited Investor” Verification: SEC Enforcement is Watching

Last week, the SEC issued a cease-and-desist order against CoinAlpha Advisors for a Reg D offering gone wrong – which shows that Enforcement will take issue with relying on self-completed questionnaires to verify accredited investor status under Rule 506(c). Here’s an excerpt from Steve Quinlivan’s blog:

The SEC alleged CoinAlpha did not have pre-existing substantive relationships with nine of the fund’s investors and engaged in a general solicitation of public interest in the securities offering through CoinAlpha’s website, which was generally accessible without password protection. Additionally, CoinAlpha engaged in general solicitation through blog postings, and media interviews and digital asset and blockchain conferences, accessible both via live attendance and through the Internet. Despite collecting accredited investor questionnaires and representations from investors certifying to their accredited investor status, Respondent did not take reasonable steps to verify that investors in the Fund were accredited investors.

During the subsequent SEC investigation, CoinAlpha retained a third party who determined that all 22 investors were accredited investors.

The SEC found CoinAlpha engaged in an unregistered public offering. CoinAlpha did not admit or deny the SEC’s findings.

Podcast: “The Governance Revolution”

In this 30-minute podcast, turnaround expert & director Deborah Hicks Midanek discusses her new book, “The Governance Revolution: What Every Board Member Needs to Know, NOW!” – including:

– What led you to write “The Governance Revolution”?
– What are the most important messages in the book?
– When it comes to some of the hazards of the board process, what is “The State Dinner” all about?
– What about “Bullying”?
– What has been the biggest surprise for you in reaction to the book?

Liz Dunshee

December 10, 2018

SEC Chair Lists Priorities: Includes Proxy Advisors & Shareholder Proposals

Last week, SEC Chair Jay Clayton delivered this speech, where he outlined where the SEC stands on its rulemaking agenda – as well as the priorities for 2019. See Exhibits A & B of the speech for handy charts (and this blog from Davis Polk’s Ning Chiu and WSJ article). Key initiatives include:

Reviewing ownership & resubmission thresholds for shareholder proposals – including whether there are factors in addition to the amount of money invested and length of holding period that would reasonably demonstrate the shareholders’ interests are aligned with those of long-term investors

Proxy advisor reforms – including transparency, conflicts, whether certain matters should be analyzed on a company-specific basis (rather than market-wide), and investor access to issuer responses to reports

Proxy plumbing – focusing on improvements to the current system, rather than a major overhaul

Cybersecurity – including disclosure controls & procedures, insider trading policies, risk factor disclosures, and the SEC’s own cyber-risk profile

Brexit & LIBOR disclosures – SEC is monitoring these risks and whether their impact is adequately disclosed

ICOs – continuing 2018 efforts to protect investors

Quarterly reporting & guidance – studying the current regime to determine whether it can be improved

Capital formation & access to investment opportunities (Jobs Act 3.0) – expanding testing-the-waters and making Regulation A available to public companies

Senate Banking Committee’s Hearing on Proxy Voting Process

Last week, the Senate Banking Committee held a hearing on the proxy voting process. Here’s a video of the hearing – and this Wachtell Lipton memo summarizes the proceedings. Don’t forget to tune in this Thursday to our webcast with Corp Fin’s Matt McNair: “Shareholder Proposals: Corp Fin Speaks.”

SCOTUS Oral Argument: Anti-Fraud Liability – Is Janus Dead-Letter Law?

Back in 2011, the Supreme Court rejected the idea that distribution of allegedly false statements by a broker-dealer was enough to create anti-fraud liability under Rule 10b-5(b) – explaining that because they didn’t have “ultimate responsibility” over the statement, they weren’t the “maker” described in the rule. Broc blogged about the case – Janus Capital Group v. First Derivative Traders – at the time. But he also later blogged that the SEC wasn’t giving up its expansive view of Rule 10b-5 – arguing that a different test applied to subsections (a) and (c).

Now, that theory has also made its way to the Supreme Court – which held its oral argument last week. In Lorenzo v. SEC, the SEC is pursuing a former broker who says that at the request of his boss, he copied & pasted a message and distributed it to potential investors – and come to find out, that message contained misleading information about a troubled company.

This Simpson Thacher memo provides notes about SCOTUS’ oral argument, as well as explains the circuit split – and its potential impact on SEC enforcement & private litigation. Here’s their prediction about what could happen:

The justices appear split on the issues of this case, with Justices Ginsberg, Breyer, Sotomayor and Kagan (the original dissenters in Janus) appearing sympathetic to the government and Chief Justice Roberts and Justices Thomas, Alito and Gorsuch seemingly skeptical of expanding SEC enforcement abilities. With Justice Kavanaugh recused, this could leave open the possibility of a split decision, which, while affirming the D.C. Circuit’s decision below as to Lorenzo, would fail to resolve the circuit split, potentially encouraging forum shopping by private plaintiffs.

If the Court does reach a majority in favor of the government’s position, however, this case stands to have broad implications for private securities litigants. If Rule 10b-5(a) and (c) can be used to circumvent the “maker” requirement of Rule 10b-5(b) under Janus, private plaintiffs could potentially bring securities fraud actions against individuals who are otherwise only minimally connected to the misstatement.

Liz Dunshee

December 7, 2018

ESG: The State of Sustainability Reporting

According to this recent study from IRRC & the Sustainability Investment Institute (Si2), sustainability reporting has come a long way, but only a few companies have taken the next step and started to issue “integrated reports.” Integrated reporting is intended to provide “a holistic look at material information that goes beyond corporate financial disclosures and gives investors insight on a company’s risk and value creation potential.”

Here are some of the study’s highlights (also see this Davis Polk blog):

– 78% of S&P 500 companies issue a sustainability report.

– 40% of S&P 500 companies include voluntary sustainability discussions in annual financial reports or other regulatory filings. This is a key signal that an increasing number of companies believe sustainability issues are financially material. The reporting, however, varies widely.

– Among companies that issue sustainability reports, 95% offer quantified, annually comparable environmental performance metrics; two-thirds set quantified and time-bound environmental goals. Some 86% offer social performance metrics, but only 40% set quantified social goals.

– Only 14 S&P 500 companies issue what Si2 considers to be fully integrated reports, though this is a 100 percent increase from five years ago.

So which companies are providing integrated reports? According to the study, they include GE, Intel, Pfizer, Allstate, Medtronic, Eli Lilly, Southwest Airlnes, AEP, Ingersoll Rand, Praxair, Entergy, Clorox, NiSource & Dentsply Sirona. While the concept has been slow to catch on, it has been endorsed by the Principles for Responsible Investment (PRI),whose signatories have $82 trillion in assets under management.

ESG: Unifying Non-Financial Reporting Standards

One of the reasons that companies may be slow to adopt integrated reporting is that there are a whole bunch of competing reporting standards. So it’s welcome news that a group of the standard-setters – including the Sustainability Accounting Standards Board (SASB), the Climate Disclosure Standards Board (CDSB), FASB (as an observer) and the Global Reporting Initiative (GRI) – has announced a project to unify their sustainability & integrated reporting frameworks. The FAQs elaborate:

Participants will work together to refine overlapping metrics with the same intent. Where their objectives do not require differences, we will look to achieve and maintain the highest possible alignment. Such alignment is subject to the due process considerations of each organization’s governance procedures.

The initial output, expected in Q3 2019, will be a publication available on – the document will show the linkages of the TCFD Recommendations with the respective reporting frameworks and the linkages between the frameworks. This work will include identifying how non-financial metrics relate to financial outcomes, explain how the TCFD recommendations should be integrated in mainstream reports and outline preparations for a next phase during which the framework providers will align their metrics where possible across all their reporting frameworks.

The new project is being led by the IIRC’s Corporate Reporting Dialogue. Note that the IIRC, which is leading this effort, is different than the IRRC, which co-issued the sustainability report discussed in today’s first blog. I want to be clear about that, first because the IRRC is dissolving at the end of this year (into the Weinberg Center), but also in case the two organizations have some sort of a “People’s Front of Judea” / “Judean People’s Front” thing going on.

ESG: Coming Soon to a Debt Deal Near You?

According to this “Institutional Investor” article, European institutions have a strong appetite for ESG debt investments – and that appetite may drive more product to market over the next several years.  Here’s an excerpt:

Environmental, social, and governance investing is taking root in the debt markets, where demand for ESG offerings is outstripping supply, according to consulting firm Cerulli Associates. The inclusion of ESG factors in fixed income is becoming more widespread, but opportunities for socially responsible investing remain scarce, Cerulli said in a statement Monday on its European research. The firm expects strong demand from institutional investors in Europe will drive the creation of ESG offerings in fixed income over the next five years.

John Jenkins

December 6, 2018

Cybersecurity: Who’s Fessed Up to a “Material Weakness?”

The SEC’s recent Cyber 21(a) Report highlighted cybersecurity internal control shortcomings at 9 different companies. This Audit Analytics blog looks at which companies have disclosed a “material weakness” following a data breach. This excerpt says that not many have:

The investigative report stopped short of recommending any enforcement action and did not name the companies that were investigated. Moreover, the report does not provide sufficient details to determine the identity of the companies. Although we are unable to identify the companies, we were curious whether we can find similar cases. Using Audit Analytics’ cyber breaches dataset, we looked at recent examples & disclosures of companies that fell victims to the attacks described in the report.

In total, we looked at nine companies that disclosed incidents of similar breaches. Six of these companies disclosed the breaches in filings furnished with the SEC, though only one made the disclosure in a current report (8-K). Of the six companies that disclosed their cyber breaches in SEC filings, just three disclosed that the breach rose to the level of a material weakness in the companies’ internal controls.

The blog also reviews the disclosures made by companies that determined a material weakness existed following a data breach.

Audit Committee Disclosures: More, More, More

The amount of information available to investors about audit committee oversight of the independent auditor continues to increase. That’s the conclusion of the 5th annual “Audit Committee Transparency Barometer,” jointly issued by the Center for Audit Quality & Audit Analytics. This excerpt from the CAQ’s blog lays out the highlights:

– 40% of S&P 500 companies disclose considerations in appointing the audit firm (up from 13% in 2014), compared to 27% of mid-cap companies (up from 10% in 2014) and 19% of small-cap companies (up from 8% in 2014).

– 46% of S&P 500 companies disclose criteria considered when evaluating the audit firm (up from 8% in 2014), compared to 36% of mid-cap companies (up from 7% in 2014) and 32% of small-cap companies (up from 15% in 2014).

– 26% of S&P 500 companies disclose that the evaluation of the external auditor is at least an annual event (up from 4% in 2014), compared to 17% of mid-cap companies (up from 3% in 2014) and 12% of small-cap companies (up from 4% in 2014).

The CAQ & Audit Analytics also provide disclosure examples to illustrate how audit committees are enhancing information for investors & other constituencies. Check out this recent blog from Cydney Posner for more details on the Transparency Barometer’s finding as well as commentary on how SEC & PCAOB actions (particularly the new audit report standard) may drive more audit committee disclosure.

Latest Stats: S&P 500 Political Spending Disclosure

The latest “CPA-Zicklin Index” reviews disclosure policies & practices on political spending by the S&P 500. Here’s a summary of its findings on election-related spending disclosure:

– 294 S&P 500 companies disclosed some or all of their election-related spending, or prohibited such spending in 2018, compared with 295 for 2017.

– When these numbers are broken down further, 231 companies disclosed some or all election-related spending in 2018, compared to 236 such companies in 2017. Turnover in the S&P 500 influenced this fluctuation significantly.

– In 2018, 176 companies prohibit at least one category of corporate election-related spending, a sizable increase from 158 companies in 2017, 143 companies in 2016 and 125 companies in 2015.

This WSJ article has more details on the survey’s findings regarding corporate political spending & disclosure.

John Jenkins

December 5, 2018

Crypto: SEC Tries the “Dutch Uncle” Approach

Some crypto fans are a little exasperated with the SEC’s approach to digital assets. Well, it looks like the feeling is kind of mutual – check out the “Statement on Digital Asset Securities Issuance & Trading” that Corp Fin, IM & Trading & Markets jointly issued last month. This excerpt gives you a sense of the Statement’s “Dutch Uncle” tone:

The Commission’s Divisions of Corporation Finance, Investment Management, and Trading & Markets (the “Divisions”) encourage technological innovations that benefit investors and our capital markets, and we have been consulting with market participants regarding issues presented by new technologies. We wish to emphasize, however, that market participants must still adhere to our well-established and well-functioning federal securities law framework when dealing with technological innovations, regardless of whether the securities are issued in certificated form or using new technologies, such as blockchain.

The Commission’s recent enforcement actions involving AirFox, Paragon, Crypto Asset Management, TokenLot, and EtherDelta’s founder, discussed further below, illustrate the importance of complying with these requirements.

The Statement walks through each of these enforcement proceedings – which involve ICOs, digital asset investment vehicles & secondary market trading platforms – in some detail, but its message can be summarized briefly: “We don’t want to crush innovation, but the securities laws apply to a lot of what you’re doing. If you don’t comply with those laws, we’ve got a problem – and so do you.”

A “Dutch Uncle” is firm but benevolent – and despite the Statement’s firm tone, Corp Fin showed a little benevolence toward wayward ICO issuers.  The 2 ICO settlements referenced in the Statement addressed failures to register offerings under the Securities Act – and the Statement notes that the settlement terms lay out a path to compliance, “even where issuers have conducted an illegal unregistered offering of digital asset securities.”

But the path to compliance isn’t easy – and includes registering the securities under the Exchange Act. This Steve Quinlivan blog blog points out that registration presents some unique challenges for coin issuers:

The second step is to register the coins on Form 10 under the Exchange Act. A daunting task maybe, given little is known how to register coins. You will probably need audited financial statements and all that stuff. Then there are those pesky 34 Act reporting obligations which will follow such as 10-Ks, 10-Qs and 8-Ks. I wonder how Section 16 applies and who has to report.

The better answer for ICO issuers is to get it right the first time, and not have to jump through all sorts of hoops to fix a screw-up. And there’s some indication that many are trying to do that – at the ABA’s Fall meeting, Corp Fin Director Bill Hinman remarked that roughly a half-dozen ICO S-1s & a dozen Reg A filings are currently being reviewed by Corp Fin on a confidential basis.

Meanwhile, SEC Enforcement’s Cyber Unit recently bagged a couple of celebrities.  Boxer Floyd Mayweather & music impresario DJ Khaled recently settled SEC enforcement proceedings alleging that they unlawfully touted ICOs on social media without disclosing that that they were being paid.

Crypto: The SEC Takes an “L” in Token Injunction Bid

As the Digital Asset Statement suggests, the SEC has taken a strong position that token offerings generally involve securities in the form of an “investment contract.” As Liz recently blogged, at least one federal court has been sufficiently persuaded of the merits of that position to deny a defendant’s motion to dismiss criminal charges premised on tokens’ status as securities.

But you can’t win ’em all – and the SEC found that out last week when a federal court in California refused to grant a preliminary injunction against a company engaged in a token deal.  This excerpt from a recent Fenwick & West memo says that when it came to the status of the token in this case as a security, the court wasn’t buying what the SEC was selling:

On Tuesday, November 27, Judge Gonzalo Curiel of the Southern District of California issued the first opinion rebuffing the SEC under the Howey test. In denying the SEC’s motion for a preliminary injunction — after initially granting a temporary restraining order — the court held that the commission had not provided enough information to deem Blockvest’s token a security.

The decision on this motion is just part of the lawsuit’s opening act, & the memo points out that it is based mainly on the parties’ differing factual accounts of what information the limited number of token purchasers relied upon. But it does suggest that courts aren’t necessarily going to roll over for the SEC’s Howey arguments in each new case.

Crypto: NASAA Tries Cartoons to Stop the Scams

Despite efforts to educate investors about the variety of crypto-scams, a lot of people are still getting ripped-off.  This Keith Bishop blog says that NASAA has taken a new tack to educate investors about cryptocurrency investment risks – a series of cartoons:

For those still in the dark about cryptocurrency, the North American Securities Administrators Association (aka NASAA) has released an animated video on the subject.  According to NASAA, the video “focuses on concerns individuals should consider before investing in any crypto-related offering, including the three “U’s” (untraceable, uninsured, unregulated), volatility and liquidity risks, and the very real potential for fraud.”  This video is actually a sequel to the debut video “Get in the Know about ICOs”.

These aren’t exactly “Rick & Morty” or “BoJack Horseman” when it comes to entertainment value, but check them out – you might learn something.

John Jenkins

December 4, 2018

SEC Closed Tomorrow: No Edgar; Open Meeting Cancelled

Here is President Trump’s executive order declaring tomorrow a “national day of mourning” for former President George H.W. Bush, which means that the SEC will be closed. Here’s the SEC’s statement that Edgar is closed. So any filings otherwise required to be made tomorrow will be due instead on Thursday (December 6th) – as the SEC will treat tomorrow as a federal holiday for 8-K purposes, etc. (i.e. not a business day).

Skadden reports that Corp Fin’s Office of Mergers & Acquisitions has confirmed that for purposes of the tender offer rules, tomorrow won’t count as a “business day” (under Exchange Act Rule 14d-1) if such date (i) constitutes the launch date of a 20-business-day offer, or (ii) is the 20th business day of a 20-business-day offer. In each case, an extension of at least one business day would be required. However, Corp Fin will apply an exception for ongoing offers and not require an extension.

In addition, the open Commission meeting to discuss possible changes to quarterly reporting has been cancelled. No word on rescheduling yet. . .

Note the precedent: the SEC issued this press release several days in advance of the national day of mourning held for President Ford in 2007.

D&O: Are You Covered for All Possible #MeToo Claims?

Concerns about sexual harassment have exploded over the past year, and misconduct by corporate officials has proven to be a fertile source of employment law claims, shareholder derivative suits, & securities class actions. This Pepper Hamilton memo reviews the elements of each of these claims, and discusses the coverage issues that companies need to focus on. Here’s an excerpt on D&O coverage:

The prospect of personal liability in the wake of allegations of sexual harassment or failure to monitor workplace conduct, coupled with unassured corporate indemnification and advancement, makes D&O liability insurance an important risk transfer tool that can, at times, become the last line of defense for an individual director or officer.

D&O coverage arising out of the #MeToo movement comes in many forms. For example, some, but not all, public company D&O policies include limited EPL coverage for directors and officers. It is imperative that directors and officers are aware of whether their companies’ D&O policies include EPL coverage. If such coverage is present, it’s vital that directors and officers understand their reporting obligations.

The memo says that questions that companies should ask about #MeToo D&O coverage include:

– What triggers coverage under the D&O policy and what are the reporting obligations?
– What exclusions from the coverage may apply, and can those be narrowed?
– How broad is the coverage for investigations?
– Are the policy limits sufficient?

Mandatory Arbitration: “Thumbs Down” in Delaware?

Until recently, most of the debate over bylaw provisions compelling shareholders to arbitrate securities claims has focused on whether the SEC will remove its existing prohibition on them.  But now, some scholars are saying that even if the SEC signs off, Delaware is unlikely to do the same.

According to the authors of this recent white paper, the problem is that Delaware’s relevant statutory provisions – Sections 102 & 109(b) of the DGCL – aren’t broad enough to authorize bylaw provisions establishing an exclusive forum for securities claims.  Here’s an excerpt:

a bylaw purporting to regulate the litigation of claims under Rule 10b-5 “would not deal with the rights and powers of the plaintiff as a stockholder,” and would therefore not be within even the broad scope of Section 109(b). As the Delaware Court of Chancery has observed, “[a] Rule 10b-5 claim under the federal securities laws is a personal claim akin to a tort claim for fraud. The right to bring a Rule 10b-5 claim is not a property right associated with shares, nor can it be invoked by those who simply hold shares of stock.”

Accordingly, regulation of the venue for (or other aspects of) a claim under Rule 10b-5 is beyond the subject matter scope of the charters and bylaws of Delaware corporations.

Also check out Alison Frankel’s blog for a discussion of several Delaware cases that may test this position in the context of a bylaw requiring plaintiffs to litigate federal claims in federal court.

John Jenkins

December 3, 2018

DOJ Eases “Cooperation Credit” Requirements

In a recent speech, Deputy AG Rod Rosenstein announced changes to the DOJ’s policy regarding individual accountability & cooperation credit in corporate investigations. The intro from this Morgan Lewis memo summarizes the revised policy (we’re posting memos in our “White Collar” Practice Area):

US Deputy Attorney General Rod J. Rosenstein recently announced that in every corporate investigation, the US Department of Justice will make it a top priority to pursue individuals responsible for corporate wrongdoing. This revised policy also modifies the expectations for corporate targets seeking cooperation credit in criminal and civil investigations. Cooperation credit for corporate targets of criminal investigations remains “all or nothing,” while cooperation credit will be available in degrees for corporate targets in civil investigations.

While cooperation credit is “all or none” in criminal investigations, the revised policy takes a less demanding view of what “all or none” means. The memo says that under the policy laid out in the Yates Memo, cooperation credit would not be given unless the company provided all relevant information about any individuals involved, regardless of culpability. In contrast, the new policy requires companies to undertake a good faith effort to identify “every individual who was substantially involved in or responsible for the criminal conduct.”

In civil investigations, all relevant information about any senior officials involved in the misconduct must be provided if the company wants any credit – and it must meet the same standard applicable to criminal investigations if it wants maximum credit. But if the company’s investigative efforts fall short, it can still receive some credit for cooperation if its actions “meaningfully assist the government’s civil investigation.”

Brexit: Speak-Up or Watch Out?

According to this recent WSJ article, SEC Chair Jay Clayton isn’t thrilled about the level of disclosure he’s seeing about the potential impact of Brexit:

The SEC is sharpening its focus on corporate disclosures about the risks associated with the U.K.’s exit from the European Union, Chairman Jay Clayton told company controllers and accountants during a conference on Monday. “My personal view is that the potential impact of Brexit has been understated,” Mr. Clayton said, speaking at the Current Financial Reporting Issues Conference, hosted by professional organization Financial Executives International in New York. “I would expect companies to be looking at this closely and sharing their views with the investment community,” Mr. Clayton added.

This recent blog from Cydney Posner flags a Brexit issue that could cause problems for some companies:

For some companies, one of the most significant issues will be whether they will need to relocate to EU-based banks financial arrangements, such as syndicated loans, swaps and other derivatives, that are currently located at banks in London. That could be a costly, time-consuming and paper-intensive process. As reported in this WSJ article, “regulations that currently cover the City of London, the heart of the U.K.’s and Europe’s financial industry, may stop applying as early as March 2019. That could make it necessary to relocate thousands of financial products used by corporates to an EU-based financial entity.”

Cydney notes that determining whether this is a live issue will depend on the final terms of a Brexit deal (or non-deal). At this point, it’s still anybody’s guess as to what those terms will be.

Our December Eminders is Posted!

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John Jenkins