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Monthly Archives: October 2021

October 21, 2021

Glass Lewis Expands ESG Capabilities

Glass Lewis has announced a strategic partnership with Arabesque, a provider of ESG data and insights. The announcement states:

The partnership will see Arabesque provide company ESG profiles for Glass Lewis’ Proxy Paper research reports, enabling clients to gain the latest ESG data and insights on over 8,000 companies worldwide, and access to climate and regulatory data solutions. Using big data and a quantitative, algorithmic approach, Arabesque’s capabilities draw on more than four million ESG data points daily from over 30,000 sources for performance metrics on sustainability, including corporate net-zero alignment.

As a rationale for this partnership, Glass Lewis indicates that investor demand for ESG data is surging, with one third of all assets under management globally now integrating sustainability factors.

– Dave Lynn

October 20, 2021

Beefing Up the SEC: House Committee Considers Budget Boost

As long as I can remember, the SEC’s budget has been a political football. Despite the SEC’s earnest requests for self-funding over the years (the SEC has traditionally netted enough cash from its operations to actually fund its own budget and more), Congress has chosen to keep control of the purse strings as a means to maintain some control over the agency’s regulatory direction. The practical result of this is that the SEC, like many government agencies, is perennially underfunded for the enormous task that it faces.

Earlier this month, the House Financial Services Committee considered the SEC’s mission and budget and heard from Chair Gary Gensler. The Majority Staff memorandum regarding the hearing notes that the SEC’s fiscal year 2023 budget request of $2.169 billion reflects an 8.8 percent increase from fiscal year 2022 “in order to address key priority areas” and “is needed to hire additional agency personnel to oversee increasingly complex and growing financial markets that are expanding across borders and asset classes, including digital assets.” Congresswoman Maxine Waters (D-CA), Chairwoman of the Committee, told Gensler at the hearing: “You have a lot to restore and rebuild. During the Trump Administration, the Commission provided minimal oversight and eliminated key protections for investors.”

The Committee considered a number of pieces of legislation and potential legislation related to the SEC’s mission, including the following:

H.R. ___, Strengthening the Office of Investor Advocate. This discussion draft will strengthen the independence and increase reliability of the funding of the SEC’s Office of Investor Advocate. It would also authorize this office to conduct investor testing and other research, and publicize its findings.

H.R.___, Investor Justice Act of 2021. This discussion draft would create a grant program, administered by SEC’s Office of Investor Advocate, to support investor advocacy clinics.

H.R.___, Empowering States to Protect Seniors from Bad Actors Act. This discussion draft would create a grant program—similar to the one created by the Dodd-Frank Act’s Sec. 989A, which has not been implemented, housed within the SEC Investor Advocate Office to support and strengthen states’ senior investor protection programs.

H.R.___, To amend the Securities Exchange Act of 1934 to improve the governance of multiclass stock companies, to require issuers to make annual diversity disclosures, and for other purposes. This discussion draft would establish minimum listing standards for the stock exchanges in two areas of corporate governance: (1) multiple classes of stock with unequal voting rights, and (2) board diversity. The discussion draft would also require newly listed companies that choose to have multi-class stock structure to also include a seven year sunset provision for that multi-class stock structure, eventually leading to “one share, one vote.”

H.R. 2620, Investor Choice Act of 2021 (Foster). This bill would prohibit financial professionals from requiring their clients into pre-dispute arbitration agreements and ban prohibitions on class action lawsuits in customer contracts that investors often are required to sign in order to receive services from broker-dealers or investment advisers.

H.R.___, Whistleblower Protection Reform Act (Green). This bill is identical to H.R. 2515, which passed the House in 2019 on suspension. It would protect whistleblowers against retaliation, including individuals (1) who blow the whistle internally; (2) who assist in an SEC investigation of these violations, or (3) make disclosures that are required or protected under any law subject to SEC jurisdiction. Currently, these anti-retaliation protections apply only to individuals who report information directly to the SEC.

H.R.___, To prohibit registered investment advisers, brokers, and registered representatives of brokers from facilitating the transaction of or recommending the securities of certain special purpose acquisition companies, and for other purposes. This discussion draft would prohibit brokers and investment advisers from recommending to retail investors SPACs that grant high percentage of “promote” to the sponsors—a compensation arrangement that offers free shares to the sponsors of the SPACs. Currently, SPAC sponsors receive 20% or more in “promote,” which dilutes the shares of retail investors.

– Dave Lynn

October 20, 2021

Links Have Consequences

A ubiquitous feature of this blog, and so many things that we encounter on a daily basis, is the embedded hyperlink. Embedded hyperlinks make things so easy for us – we can move from what we are reading directly to some related information so that we no longer have to bother looking things up on our own. But when it comes to SEC filings, it is always important to remember that links have consequences.

This topic was addressed during the panel “Creative Proxies: Tips to Optimize Communications” during the first day of last week’s Proxy Disclosure Conference. While there is often a desire to treat SEC filings like other communications and use hyperlinks as a means to improve the user experience, it is important to consider the liability implications that arise from linking to any material outside of the filing. The issue comes up these days when, for example, a company may want to reference the company’s ESG report in the Form 10-K or proxy statement, given the important information that is included in that external document.

In this recent SEC Institute blog, George Wilson notes the risk associated with mentioning or hyperlinking to information outside of an SEC filing:

In a recent Workshop, one of our participants asked about the pros and cons of mentioning or linking to a separate ESG report in Form 10-K. One of the risks in such a reference is that the ESG report could become part of the Form 10-K and become “filed” information. This would potentially subject the information in the ESG Report to the liability provisions set forth in section 18 of the 1934 Act and, if the 10-K is incorporated by reference into a 1933 registration statement, the strict liability provisions of section 11 of the 1933 Act. Neither of these outcomes would be advisable for all the information in an ESG report.

Keep in mind that Rule 105(b) of Regulation S-T states that “electronic filers may not include in any HTML document hyperlinks to sites, locations, or documents outside the HTML document, except links to officially filed documents within the current submission and to documents previously filed electronically and located in the EDGAR database on the Commission’s public Web site (www.sec.gov).”

My advice – when in doubt, don’t hyperlink and be cautious about references to information included on the company’s or other websites! SEC reporting companies are now required to link to certain specific information in SEC filings, but outside of those circumstances, there is never a good reason to include an active hyperlink to external material.

– Dave Lynn

October 20, 2021

Transcript: MD&A & Financial Disclosures: What to Do Now

The transcript from our recent webcast – “MD&A & Financial Disclosures: What to Do Now” – is now available to our members. This webcast was full of practical tips for complying with the new MD&A & financial disclosure requirements applicable to your upcoming Form 10-K. Sonia Barros from Sidley, Raquel Fox from Skadden, Mark Kronforst from Ernst & Young, Lona Nallengara from Shearman & Sterling and yours truly discussed:

1. Overview of Amendments and Compliance Dates
2. Lessons From Early Compliers
3. Deleted Items
4. Liquidity & Capital Resources
5. Critical Accounting Estimates
6. Results of Operations
7. Objective of the MD&A
8. Quarterly Comparisons
9. Supplementary Financial Information
10. Interpretive Issues

– Dave Lynn

October 19, 2021

Meme Stocks: These Aren’t the Droids You Are Looking For

Yesterday, the SEC Staff released a report on the meme stock craze that occurred earlier this year. The report delves into the conditions that led to extreme price movements in GameStop and surveys the various elements of the markets that were impacted by the unusual market activity. The Staff identified a few areas that may require more study and consideration, which include: (i) forces that may cause a brokerage to restrict trading; (2) digital engagement practices (e.g., game-like features and “celebratory animations”); (3) trading in dark pools and through wholesalers; and (4) short selling and market dynamics.

Commissioners Peirce and Roisman issued a statement criticizing the Staff report, noting:

In the wake of an anomalous market event, it can be tempting to identify a convenient scapegoat and leverage the event to pursue regulatory actions without regard to the factual record. The report, however, finds no causal connection between the meme stock volatility and conflicts of interest, payment for order flow, off-exchange trading, wholesale market-making, or any other market practice that has drawn recent popular attention. Indeed, in our discussions about causes of the January episode, whether with staff or with market participants, we have seen no evidence that these practices were a cause of these events.

Reading the report reminded me of my finest GameStop moment. To celebrate the release of a new Mario Kart game, I accompanied my son to the local GameStop dressed in a full Mario costume, complete with giant cartoon head, denim overalls and big yellow buttons. The GameStop employees were generally befuddled and I don’t recall there being any other customers in the store. I had originally acquired the costume for my son’s Mario Kart-themed birthday party, where I drove around a go-cart track like a maniac dressed in the Mario costume. I guess these are the things we do as parents so our kids think we are cool.

– Dave Lynn

October 19, 2021

EY Highlights SEC Staff Comment Letter Trends

EY recently published highlights from its most recent SEC Staff comment letter survey, noting:

  • Non-GAAP financial measures remained in the top spot in thelist of the most frequent topics in SEC staff comment letters for the year ended June 30, 2021. Management’s discussion and analysis and segment reporting were second and third, respectively.
  • The volume of SEC staff comment letters on periodic reports continued to decline and was down by 20% from the previous year.
  • The Staff continued to issue comment letters addressing COVID-19 disclosures in MD&A, business descriptions, and risk factors in addition to disclosures about fair value measurements and other topics, including the use of non-GAAP financial measures.
  • The SEC staff has started issuing comments on climate-related disclosures, including considerations of the Commission’s 2010 guidance.
  • Companies planning to go public through an initial public offering or merger with a SPAC should consider the topics of frequent comment when preparing their initial registration statements and subsequent filings.

The EY publication also includes tips on how to navigate the comment-letter process. For even more details on that, members should check out our 43-page “SEC Comment Letter Process” Handbook, which was recently revised & updated by former Staffers Sonia Barros & Sara von Althann of Sidley Austin.

– Dave Lynn

October 19, 2021

Check out the Deep Dive with Dave Podcast!

In the latest Deep Dive with Dave podcast, John and I talk about the topics we cover in the September-October 2021 issue of The Corporate Counsel. I take us on a test drive of the SEC’s many new testing-the-waters provisions and John covers the Staff’s latest comments on non-GAAP financial measures.

– Dave Lynn

October 18, 2021

That’s a Wrap! Our 2021 Proxy Disclosure & Executive Compensation Conferences

It was great to be a part of our 2021 conferences, which took place Wednesday through Friday of last week. We had a great lineup of speakers, and I really appreciated the opportunity to speak with Renee Jones, the Director of the Division of Corporation Finance, about all of the projects going on in Corp Fin at the moment. If you missed the conferences, be sure to sign up to check out the archives so you can be ready of the upcoming annual reporting and proxy season.

I would like to thank Liz for all her efforts organizing and hosting the conferences, the talented CCRcorp staff who made this great event happen and the Markeys team who made the virtual event run so smoothly, as well as all of the members who participated in the conference. I am already looking forward to next year’s event!

– Dave Lynn

October 18, 2021

SEC Reopens Comment Period on Clawback Rule Proposal

One of the topics that I discussed on the SEC All Stars panel at Friday’s 18th Annual Executive Compensation Conference was the SEC’s reopening of the comment period on the Dodd-Frank Act mandated clawback rule proposal. The two big issues from the reopening release that I discussed at the conference were the Commission’s questions about little “r” restatements and the determination of when the three-year lookback period runs.

The Commission acknowledges in the release that the proposed definition of an accounting restatement would not require a recovery where an issuer’s previously issued financial statements are required to be restated in order to correct errors that were not material to those previously issued financial statements, but would result in a material misstatement if: (i) the errors were left uncorrected in the current report; or (ii) the error correction was recognized in the current period. One of the commenters in the original comment period noted that such “little ‘r’ restatements” would allow an issuer to potentially avoid application of the clawback provisions. So now the Commission is asking whether “an accounting restatement due to material noncompliance” should include all required restatements to correct an error in previously issued financial statements – including little “r” restatements – and solicits comment on that approach.

Also, for purposes of triggering the three-year lookback period, the proposed rules would establish the date on which an issuer is required to prepare an accounting restatement as the earlier of:

Some commenters expressed concern that the “reasonably should have concluded” standard adds unnecessary uncertainty to the determination. The Commission now asks about removing that “reasonably should have concluded” standard and possibly changing the formulation as to the timing of the trigger for the three-year lookback.

All indications are that the Commission hopes to act on this rulemaking in the near term. The comment period is open for 30 days from publication of the release in the Federal Register.

– Dave Lynn

October 18, 2021

DOL Proposes Rule Allowing ERISA Fiduciaries to Consider ESG Factors

Last week, the Department of Labor released a proposed rule that would amend the DOL’s investment duties regulation with respect to the consideration of ESG factors in the selection of investments for retirement plans that are subject to the ERISA. The proposal also would amend the proxy voting rules under ERISA. As this Sidley memo notes:

The Proposal represents a significant change from the prior administration’s fiduciary rule relating to ESG investing, which is now subject to a nonenforcement policy by the DOL.” The current rule requires that plan fiduciaries consider only “pecuniary factors” in making investment decisions, and does not reference anything regarding ESG factors. The new DOL proposal would remove the concept of “pecuniary factors” and states that “a prudent fiduciary may consider any factor in the evaluation of an investment or investment course of action that, depending on the facts and circumstances, is material to the risk-return analysis.

The proposal includes several ESG factors as examples of the facts and circumstances that can be considered if material to the risk-return analysis. The DOL proposal would also make a number of changes to the proxy voting and exercise of shareholder rights provisions applicable to ERISA fiduciaries. Comments are due by December 13, 2021.

– Dave Lynn