Most of us can name a few folks whose influence, early in our career, affected the direction of our path. For me, one of those people was Bert Ranum. Bert was (and is) a wise counselor with a strong sense of business & interpersonal practicalities and a thorough knowledge of securities law. Bert’s clients – which included many smaller public companies in the life science space – were often dealing with unique legal issues, raising capital for R&D efforts, and doing whatever they could to get products to market and keep their business going. That was a whole lot more interesting to me than the churn of private equity acquisitions that many of my peers had been sucked into – although I know many people find those deals exciting for their own reasons.
In 2010, after nearly 30 years practicing in Minnesota, Bert picked up his practice and moved to Gainesville, Florida so that his wife – a scientist – could accept a long-awaited career opportunity with the university there. Bert stayed with our firm and wanted to start a Florida office to serve the local biotech community, as well as maintain his existing clients by traveling back to the Midwest on a monthly basis. It was just a few years later, when we weren’t seeing Bert as regularly, that my colleagues & I started to notice changes in his speech. In 2016, he was diagnosed with ALS.
Bert recently published a book called “Clinical Trial: An ALS Memoir of Science, Hope and Love” – which is an account of reestablishing his career in Florida in support of his wife, Laura, as well as his journey with ALS. By a miraculous coincidence, Laura is not just any scientist: she is one of the top in her field, worldwide, for studying neurological conditions – including, specifically, the genetic mutation that causes Bert’s ALS. Here’s Bert’s summary about that aspect of his book, from the Hennepin County Bar Association:
I may be the luckiest ALS patient alive, if you can call someone lucky with a disease that generally causes death three to five years after diagnosis. I’m lucky because my wife, Laura, is an internationally respected scientist who knows more about my particular disease than almost anyone in the world. Her connections resulted in my participation in a clinical trial at Johns Hopkins for a new drug targeting the specific genetic mutation that I have. That may be why I am doing well over five years from diagnosis, still walking, swimming, playing guitar badly, talking slowly and generally enjoying life. Or it may be the paleo diet that we started years ago, or the metformin that I’m taking based on Laura’s research, or the regular exercise we’re getting or the no stress lifestyle that I’ve adopted. I write about all this in the Memoir.
What also may be of interest to this crowd is that Bert’s book details:
– What it was like to take the Florida Bar Exam at age 51
– Overcoming the fear of “starting over”
– Putting your career goals second to support your spouse’s opportunity
– Negotiating a “package deal” with a spouse’s employer that includes introductions to the business community
– How to handle your ego when things don’t go as planned
Here’s one of the concluding passages from the book, and something I’m keeping in mind as we head into a new year:
When we first moved to Florida, I worked hard to be a successful lawyer and spent a fair amount of time worrying about billable hours, client relationships, and income. A significant part of my ego was based upon being a good and successful lawyer. ALS forced me to reevaluate that, and it crumbled quickly under examination.
As you often hear from people reflecting on a life well-lived, Bert notes that it’s the relationships – with his family most of all, but also with colleagues and friends – that have delivered a meaningful life.
That brings me back to the direction that my own path has taken so far. After a pretty enjoyable stint in private practice, I thought that what I’d enjoy most about joining TheCorporateCounsel.net would be sharing analysis of interesting securities & corporate governance issues (and I do enjoy that, because I’m a nerd). But I’ve learned over the past 5 years that it’s the ability to connect with all of the smart, funny and helpful people in our securities & corporate governance community that really make this gig enjoyable. It’s an honor to work with our fantastic CCRcorp team, and to gain insights from everyone who emails with comments, suggestions and – my favorite – personal anecdotes. Thank you to everyone who contributes to our sites and events, and thanks to Bert for alerting me to his book, the proceeds of which go to ALS research.
– Liz Dunshee
Programming note: This blog will be off tomorrow, returning in 2022. Happy New Year!
Last week, the SEC announced that electronic vehicle company Nikola had settled the Commission’s fraud proceedings against it for $125 million. The SEC is establishing a fund to distribute penalties to harmed investors. This is the company that is most well-known for its then-CEO tweeting a video of its truck prototype cruising at a high speed. Then, a short-seller published a report claiming that the truck was just rolling down a hill.
According to the 13-page order, the SEC is holding the company responsible for misleading statements by its founder and former CEO & Executive Chair, Trevor Milton. The company got some credit for its agreement to continuing to cooperate with the ongoing litigation against Milton. Here’s the company’s press release about the settlement – which emphasizes that the company neither admits nor denies the SEC’s findings and that it’s seeking reimbursement from Milton for costs & damages.
This “D&O Diary” blog from Kevin LaCroix recaps interesting takeaways from the settlement:
The most attention-grabbing aspect of this settlement is its size. This settlement involves some serious money, which obviously speaks to the seriousness of the allegations. There are several other interesting features of this settlement, as well.
The first is that the SEC alleged not only misrepresentations against Milton, but also alleged misrepresentations by Nikola itself, apart from those attributed to Milton. The second is that the SEC alleged that many of the misrepresentations were made in Tweets and in other social media communications. These allegations are a reminder that social media communications can be the source of securities law liability. In that regard, it is worth highlighting the fact that the among the allegations the SEC made was the allegation that Nikola had insufficient controls or procedures for monitoring Milton’s social media use, which underscores that, given the risk of securities law liability arising from social media use, companies have responsibility to control and manage their executives’ social media communications.
Another feature of this settlement that is interesting to me is that the settlement involves a company that became publicly traded during the same time frame as the alleged misconduct through a merger with a SPAC. The fact that the alleged misrepresentations were made both before and after the SPAC merger highlights the risks involved with communications by companies that are going to go public through a SPAC merger or that have just become public as a result of a SPAC merger. These risks draw attention to a misperception that may be widespread that the rules and best practices that apply in connection with traditional IPOs don’t apply to SPAC transactions; the allegations here underscore the danger with this misperception. The fact that the alleged misrepresentations continued after the merger highlight concerns that at least some companies that go public through a SPAC merger may not be ready for the burdens, responsibilities, and obligations that go with a public listing.
The statement in Nikola’s press release about its intent to try to seek recoupment from Milton for its costs and expenses is also interesting. This effort is a claim against a former director and officer of the company. Though it is a kind of D&O claim, it is not one that the typical D&O insurance policy would cover, as it would represent the prototypical “entity vs. insured” claim for which coverage is precluded under the policy.
By the same token, the $125 million that Nikola has agreed to pay in the settlement likely would not be covered under the company’s D&O insurance policy; most D&O insurance policies exclude from the definition of insured loss “fines, penalties, and matters deemed uninsurable under applicable law.” However, the company’s defense costs (as well those of Milton) potentially could be covered under the company’s D&O insurance program.
One final note about the settlement amount, and that is that the $125 million settlement is by far the largest amount the SEC has recovered in a SPAC-related enforcement action.
Kevin predicts that this may just be the beginning of the SEC flexing its enforcement power against companies that went public via a SPAC. This is in addition to the spate of private securities litigation against post-merger SPACs. In blogs here and here, Kevin wrote about complaints against two other post-SPAC EV manufacturers, just in the past week!
Dave blogged earlier this month about the SEC’s final rules under the Holding Foreign Companies Accountable Act – and last week, about the continued scrutiny of disclosures by China-based companies. Meanwhile, this CNN article reports that China is also planning to make it harder for their local companies to go public in other countries.
According to this Financial Times article, this regulatory intervention could cause US IPOs of China-based companies to drop off a cliff. US exchanges are looking to replace that absence with listings from other Asian countries, and that pipeline is growing.
The article identifies some Singapore- and India-based companies that could debut here – but predicts it will be an uphill battle to land anything on the scale of Chinese giants like Alibaba. As I blogged yesterday, the NYSE wants to offer more complimentary products & services in order to entice companies to list there and succeed.
A recent WSJ article reported that regulators worldwide – including the SEC & DOJ – are starting to take an interest in Binance, which is the world’s biggest cryptocurrency exchange (and fastest growing financial exchange in terms of users). The wrinkle is that the company denies having any head office or formal address that would subject it to local regulations. According to the article, the company also aspires to eventually go public here.
Although Binance’s CEO says that the company is setting up local offices in undisclosed locations to appease certain regulators, it wouldn’t be the first “fully remote” company to undertake an IPO. John blogged a few months ago about two companies that cleared registration with no headquarters identified on the Form S-1.
As more companies inevitably do this – and as the “homeless” companies get more mature – we’re probably going to start to see regulatory gaps. For example, Rule 14a-8(e)(2) says that shareholder proposals must be received at the “principal executive offices” – does this now mean the CEO’s home address? We’ll look forward to hearing from all the trailblazers out there – and eventually, maybe the SEC Staff – about how to handle these new puzzles.
I blogged earlier this month that Nasdaq’s annual listing fees are increasing January 1st. Now, the NYSE is following suit. The SEC posted this notice of a proposed NYSE rule change that would amend Chapter 9 of the Listed Company Manual to simplify & increase listing fees, as follows:
1. Initial Listing Fees – Replace the per share & one-time fee structure with a flat fee of $295k (which is the current maximum initial listing fee and what a “substantial majority” of recently listed issuers have paid). There would also be a corresponding amendment to apportion this fee, for issuers structured as an UPREIT. If approved, this change would be effective immediately.
2. Annual Listing Fees – Increase the fee from $0.00113 per share to $0.00117 per share and increase the minimum annual fee from $71k to $74k for the primary class of shares. If approved, this change would apply for the 2022 year.
3. SPAC Annual Listing Fees – Replace separate fees for common shares & warrants (which are subject to an aggregate annual limit of $85k) with a flat annual fee of $85k that would cover both common shares and warrants. The NYSE says that most Acquisition Companies currently pay the maximum annual fee of $85k, so this change would have minimal impact and would be easier to implement. If approved, this change would be effective immediately.
Comments are due 21 days after publication of the proposal in the Federal Register – here’s the form.
In addition to the proposed changes to NYSE listing fees, the SEC also posted notice of a proposed NYSE rule change to Section 907.00 of the Listed Company Manual. Companies that list on the Exchange after the rule is approved by the Commission will be eligible to sign up for an expanded list of “complimentary products & services” for 4 years after listing, which include:
– Market Intelligence – Replacing the current offering of “market surveillance,” in light of the fact that the NYSE’s contracted service providers now provide additional info to track investor views and how they change over time
– Web-hosting & Web-casting – Combining two separate services, since the NYSE’s service providers now aggregate them as a single option
– Board of Directors Platform
– Virtual Event Platform
– ESG Tools
– News Distribution Products & Services
If approved, the rule change also would give companies more flexibility to select different levels of services – subject to a maximum overall value of services used. Eligible new listings & eligible transfers with a global market cap of $400 million or more can get:
Products & services with a maximum combined value of approximately $125k annually, consisting of: (i) web-hosting & web-casting, (ii) news distribution, and (iii) a selection among market intelligence, market analytics, board of directors platform, virtual event platform, or ESG products & services.
Companies below a $400 million market cap are limited to:
(i) web-hosting & web-casting, (ii) market analytics, and (iii) news distribution.
The Exchange would extend its existing complimentary whistleblower hotline services from 24 to 48 months for all new listings.
For currently listed companies, the “Tier One” group – companies with more than 270 million shares outstanding – can get (i) web-hosting & web-casting, and (ii) a selection from the other services, up to an annual value of $75k. Tier Two is too complicated for this blog.
Comments are due 21 days after publication in the Federal Register – here’s the form.
This recent “SEC Institute” blog highlights an example disclosure (pg. 44) from a company that transitioned to sequential quarterly analysis in its MD&A. It’s worth bookmarking if you’re considering making this switch in the future, and your filing for Q1 could be a logical time to do it.
Looking ahead to your Form 10-K, members of our site should also flip through the transcript from our recent webcast, “MD&A and Financial Disclosures: What To Do Now.” Sonia Barros, Raquel Fox, Partner, Mark Kronforst, Dave Lynn, Partner and Lona Nallengara – all very accomplished former SEC Staffers and current practitioners – discussed what to do now that the mandatory compliance date has arrived for the SEC’s amended MD&A rules. Our 102-page “MD&A Handbook” is also a great resource as questions arise.
I recently recorded an illuminating conversation with Cas Sydorowitz – the Global Head of Georgeson – and Hannah Orowitz – the Senior Managing Director and Head of US ESG for Georgeson. In the 39-minute episode, we discuss:
1. Expectations for the 2022 AGM season in the US, particularly considering the surprises we saw during the 2021 proxy and annual meeting season
2. Early trends for shareholder proposals
3. Changes in voting behaviour of traditional investors – and what they are most likely to focus on
4. Whether the record-breaking level of negotiated proposals in the 2021 season is the ‘new normal’
5. How the new SEC guidance on Rule 14a-8 will impact shareholder proposals during the 2022 proxy season and beyond
6. What impact COP26 and the formation of the International Sustainability Standards Board may have on companies in 2022
7. Following COP26, there was a rapid uptake of asset managers signing The Net Zero Asset Managers Initiative, which includes BlackRock, Vanguard, States Street and at least 220 others. What might that mean for 2022?
8. Predictions for activism in 2022, in light of environmental issues playing a role in a successful proxy contest, and activists’ cooperation with NGO proponents (e.g., Ceres and As You Sow)
I’ve blogged a few times about the impact that retail investors could begin to have on proxy voting – here’s a write-up from last spring about how increasing retail involvement could make voting outcomes less predictable, particularly if they take on a “gaming” aspect akin to the meme-stock frenzy. Now, investors’ wait for an easy way to actually do this is over: the new “iconik” app will encourage users to crowdsource their voting power, along with offering commission-free trading. The app’s website includes this “voting agreement & revocable proxy,” along with this summary of what the founders hope to accomplish:
– On iconik, people run campaigns to help make changes at publicly traded companies. Campaigns can be about almost anything, from better corporate governance to increasing share value (and everything in-between).
– Simply purchase shares and delegate your voting rights to the campaign organizer. You will always own the shares, but now those voting rights are going towards something that matters.
Because fractional shares may not include voting rights, shareholders who want maximum voting power need to buy individual stocks. So, that could prevent this from taking off in force. But as I wrote a few months ago, many retail investors today feel like they’re more likely to vote and care about E&S issues. iconik’s CEO was inspired by the meme stock rally, and he’s banking on the possibility that retail investors are willing to sacrifice diversification for influence.
This DealBook article notes that the platform launched with two active campaigns. One is targeting Meta (Facebook) – to shut down hate speech on the platform. The other is going after JPMorgan Chase – to stop lending to fossil fuel companies.
iconik likely isn’t going to be the only game in town here when it comes to crowdsourcing voting activities. In late summer, I noted that Robinhood acquired Say Technologies, which appeared to be a play into the voting & engagement space. Stay tuned.
With the end of 2021 fast approaching, there is no time like the present to reflect on where we have been in 2021. It has been quite a year!
It wasn’t 2020. One of the main things that 2021 had going for it was that it wasn’t 2020. For a long list of reasons, last year at this time we had all had enough of 2020, and we were looking to 2021 with a great deal of optimism. Can you recall that brief late Spring 2021 respite from the relentless spread of COVID-19 when we thought that Summer 2021 was going to be the best summer ever? At least we had that time, which alone makes 2021 an improvement over 2020. While it is hard to get our hopes up, maybe we will finally see some semblance of “back to normal” in 2022?
The Great Resignation. Much was made in 2021 of “The Great Resignation,” as people realized en masse that life was too short and they needed to get themselves a new job or pursue some other passion. While the trend began in 2020, it really seemed to accelerate in 2021. Having been someone who has changed jobs a few times in his career, I can definitely understand the underlying feelings behind The Great Resignation, particularly in the midst of the pandemic when many of us have reevaluated our priorities. With so much focus on human capital these days, the challenge for public companies will be disclosing how this trend has affected them and addressing their specific plans for retaining and attracting workers.
The Tip of the Iceberg. Towards the end of 2021, we saw the regulatory engines fire up at the SEC under the leadership of SEC Chair Gary Gensler, which has exposed just the tip of the iceberg of a broad and aggressive regulatory agenda. At this time last year, we were frantically picking through an avalanche of 11th hour rulemaking that had been adopted under former SEC Chair Jay Clayton’s leadership, and now some of those rules are already in the process of being undone. What is certain is that we will see a great deal of activity on the rulemaking front in 2022 that will definitely reshape a number important areas of public company disclosure and governance.
Climate and ESG Take Center Stage. It is not as if we were not talking about climate and ESG back in 2020 (and before), but in 2021 those topics seemed to dominate every conversation. The SEC, for its part, has clearly signaled that the topics of climate and human capital are at the top of its agenda, and demonstrated to us that they mean business on climate and ESG with an Enforcement task force and climate comment letters from the Division of Corporation Finance. We very well may look back and say that 2021 was the turning point on how public companies address these topics from a governance and disclosure perspective.
Our Resources. I am proud to have been a part of the fantastic team here, providing you with so many great resources that were hopefully useful for keeping up with all of the developments in 2021. I am excited to be blogging again here on TheCorporateCounsel.net, recording the Deep Dive with Dave podcast, updating the Executive Compensation Disclosure Treatise, contributing to The Corporate Counsel and The Corporate Executive, and participating in our conferences and webcasts. I hope we were able to keep you informed about all of the developments in 2021, and provide you with the analysis and insight that you can’t find elsewhere. In 2022, I will celebrate 15 years working on these publications – where did the time go?
I wish you all the best for the holiday season and I hope you have a great 2022!
– Dave Lynn
Programming Note: This blog will be off tomorrow, back next week.