Author Archives: Broc Romanek

Recently, I blogged about Brad Cook – who resigned as the SEC Chair when he got caught up in a securities fraud scandal & was temporarily disbarred in two states for lying to a grand jury in the case. Before becoming the SEC Chair in ’72, Cook was the SEC’s General Counsel and first Market Reg Director (serving as both at the same time). He was the youngest person ever to lead a federal agency. He was 35!!!

Like me, a lot of members responded that they had never heard of this fascinating story. And one member pointed out this transcript of an interview with Brad. It makes for fascinating reading. Also fascinating is this newspaper article from when he resigned. Wonder who has the movie rights…

If you read the transcript, bear in mind that all the names mentioned (Stans, Vesco, et al) were all players in the Watergate scandal. As apparently was Cook…

Clayton Confirmation: Senate Banking Committee Approves

As noted in this WSJ article, the Senate Banking Committee approved Jay Clayton as SEC Chair by a vote of 15-to-8 yesterday, mostly along party lines. Three Democrats voted in favor of the nominee. All 12 Republicans on the panel supported him. Final Senate action is expected in late April or early May…

Poll: Do You Care About JOBS Act’s “5th Anniversary”?

Today is the 5th anniversary of the JOBS Act. Do you care? Express yourself in this anonymous poll:

– Broc Romanek

Recently, the SEC adopted technical amendments for self-executing provisions of the JOBS Act – mostly relating to EGCs. This Davis Polk memo highlights that the EGC revenue cap has been raised for $1.07 billion – adjusted for inflation. And as noted in this blog by Steve Quinlivan, many of the ’33 Act and ’34 Act forms have been tweaked. Here’s an excerpt:

Broadly speaking the cover page has been revised to include a “check the box” item to indicate that the person filing the report is an “emerging growth company” and an additional box to check as follows: “If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.”

EGCs: PCAOB Staff Notes Trends

Last week, the PCAOB Staff issued this “White Paper on Characteristics of Emerging Growth Companies,” noting these highlights:

– There were 742 EGC filers (or 38%) that have common equity securities listed on a U.S. national securities exchange. These EGC filers represented 15% of the 4,797 exchange-listed companies – and approximately 1% of total market capitalization of exchange-listed companies.
– Many EGC filers that were not exchange-listed had limited operations. Approximately 50% of the non-listed EGC filers reported zero revenue in their
most recent filing with audited financial statements and 23% of non-listed EGCs that filed periodic reports disclosed that they were shell companies.
– Approximately 51% of EGC filers, including 74% of those that were not exchange-listed, received an explanatory paragraph in their most recent auditor’s
report expressing substantial doubt about the company’s ability to continue as a going concern.
– Among the 1,951 EGC filers, 1,262 provided a management report on internal control over financial reporting in their most recent annual filing. Of those 1,262
companies, approximately 47% reported material weaknesses.
– Approximately 96% of EGC filers were audited by accounting firms that also audited issuers that are not EGC filers, including 39% of EGC filers that were
audited by firms that provided audit reports for more than 100 issuers and were required to be inspected on an annual basis by the PCAOB.

Conflict Minerals: Final Judgment Entered

Here’s the intro from this Cooley blog by Cydney Posner:

Today, the D.C. District Court entered final judgment in National Association of Manufacturers v. SEC, holding that Section 1502 of Dodd-Frank and Rule 13p-1 and Form SD, Conflict Minerals, violate the First Amendment to the extent that the statute and the rule require regulated entities to report to the SEC and to state on their websites that any of their products “have not been found to be ‘DRC conflict free.’” In addition, pursuant to the APA, the Court held the rule unlawful and set it aside but only to the extent that it requires regulated entities to report to the SEC and to state on their websites that any of their products “have not been found to be ‘DRC conflict free.’”

It is now up to the SEC to determine whether and how to revise the existing rules or whether to let stand, at least for the meantime, the Corp Fin guidance that was issued in 2014 and is currently in effect. That guidance requires companies to make the mandated filing on a timely basis without including a statement as to the conflict-free status of the products that could be deemed to violate the First Amendment.

Try Our Quick Surveys!

We have these three new “Quick Surveys” for you to participate in – all responses are anonymous:

– Board Approval of Form 10-K

– Comp Committee Minutes & Consultants

– Rule 10b5-1 Plan Practices

– Broc Romanek

Recently, we had this query posted in our “Q&A Forum” (#8989): “I have heard that the SEC’s BlueLinx/Health Net orders in the context of protecting whistleblowers may lead to stockholder demand letters where companies have objectionable language in their filed severance and other agreements; anyone aware of whether this is the case, and if so, what companies are doing in response?”

John responded: “You heard right. Here’s a Jones Day memo discussing this. It looks like the plaintiffs’ bar is just getting started, and I haven’t seen anything as to how companies are responding.” Which leads us to tomorrow’s webcast…

Tomorrow’s Webcast: “Whistleblowers – What Companies Should Be Doing Now”

Tune in tomorrow for the webcast – “Whistleblowers: What Companies Should Be Doing Now” – to hear Margaret Cassidy of Cassidy Law, Sean McKessy of Phillips & Cohen (& former Chief, SEC’s Office of the Whistleblower, Division of Enforcement) and Baker & McKenzie’s Joan Meyer discuss what you need to be doing now in the wake of the latest SEC – and other regulator – actions in the whistleblower arena.

Our April Eminders is Posted!

We have posted the April issue of our complimentary monthly email newsletter. Sign up today to receive it by simply inputting your email address!

– Broc Romanek

Before the election, I received this note from a member in reaction to my blog about Senator Elizabeth Warren’s letter to President Obama about political contribution disclosure rulemaking:

I was surprised to read Senator Warren’s letter asking President Obama to exercise his authority under 17 CFR 200.10, because everything in the CFR was adopted by the Commission and how could the Commission give authority to someone outside the agency. It seemed odd to me. But lo and behold, I looked at the Exchange Act and there is no mention of the President’s authority to appoint the Chair, only the authority to appoint the Commissioners. I know you have written about Reorg Plan No 10 of 1950 in the past, which every SEC geek needs to know. As the litigators say, my memory is refreshed. And boy, that was some nasty letter. One needs skin like an alligator to survive inside the Beltway.

So the President’s authority to appoint a Chair among the SEC Commissioners is granted by Section 3 of the Reorganization Plan No. 10 (which itself was created pursuant to the Reorganization Act of 1949).

Think about that. Before 1950, the SEC Chair was selected by the other Commissioners! There must have been some serious campaigning among the Commissioners on occasion to be selected Chair. If that were still the rule today, they’d probably draw straws – and the one who picked the short one would be Chair. Who wants the constant criticism from Congress and the media?

It’s true that the SEC Chair’s authority is far greater than the other Commissioners (review the transcript of our webcast on this topic to learn more) – but they wouldn’t be doing it for the money. Last time I checked, the SEC Chair got paid only $5k more than the other Commissioners. Definitely not worth the added scrutiny & hassle!

The Battle to Become the First SEC Chair!

Thanks to Paul Dudek – now at Latham & Watkins – for help with the above. This also comes from Paul:

The biography of Ferdinand Pecora – known as “The Hellhound of Wall Street” – describes the contentious behind the scenes lobbying in connection with the selection of the first SEC Chair. Pecora was the Chief Counsel of the Senate Committee that investigated the 1929 Crash, while Kennedy was shenanigans that contributed to the Crash.

President Franklin Roosevelt had given instructions to the Commissioners that they select Joe Kennedy as Chair – but Pecora lobbied his fellow Commissioners to override the President’s decision for himself to serve in that role. James Landis, another initial Commissioner, engaged in shuttle diplomacy between Kennedy and Pecora as they sat in separate rooms during a delay in their swearing-in ceremony. And Landis eventually got Pecora to acquiesce to FDR’s choice.

SEC Chair Clayton? Senate Banking Committee to Act Next Week

This WSJ article notes that the Senate Banking Committee will meet on Tuesday to bless Jay Clayton’s nomination to be SEC Chair. Then a full Senate confirmation is the next step – which probably will happen in late April…

– Broc Romanek

It’s all about the “index.” A few weeks ago, John blogged about the debate over the dual class voting structure of Snap. This Vox article is entitled “Snap offered shareholders a terrible deal. Lots of people signed up anyway.”

Some folks wrote to me in response, noting that many investors were not clambering to buy the IPO shares. As John noted in an update to his blog, the bigger issue for investors – particularly the heavily indexed managers – is that once these shares wind up in indexes, they will be forced to hold them whether they want to – or not.

This point is eloquently made in these remarks by CII Executive Director Ken Bertsch before a SEC Investor Advisory Committee recently – also see this letter from CII to Snap…

Podcast: Ken Bertsch on Dual Class Voting Structures

In this 13-minute podcast, Ken Bertsch – Executive Director of the Council of Institutional Investors – discusses Snap’s IPO & more, including:

– How – and why – has CII opposed Snap’s dual class voting structure?
– How has CII (& other investor groups) responded to calls for shareholder proposal reform?
– How has it been moving back to Washington DC?

This podcast is also posted as part of my “Big Legal Minds” podcast series. Remember that these podcasts are also available on iTunes or Google Play (use the “My Podcasts” app on your iPhone and search for “Big Legal Minds”; you can subscribe to the feed so that any new podcast automatically downloads…

Conflict Minerals: State Department Gets Involved

Here’s the intro from this Cooley blog:

Bloomberg BNA is reporting that the State Department has launched a new review of “how best to support responsible sourcing of conflict minerals,” which will continue through April 28. Although it’s not known whether the SEC is involved in the State Department’s efforts, BNA suggests that the review “could help determine the next step in a potential rethink” of the SEC conflict minerals rule.

And here’s a Cooley blog about a group of Senate Democrats who sent a letter to the SEC’s Inspector General about whether Chair Piwowar had the authority to resolicit comment on the pay ratio and conflict minerals rulemakings…

– Broc Romanek

Here’s the news from this WSJ article by Andrew Ackerman about the US Supreme Court granting certiorari to a case that might impact liability for “known trends and uncertainties” disclosure:

The U.S. Supreme Court on Monday agreed to consider whether publicly traded companies can be sued for securities fraud by third parties for omitting “known trends or uncertainties” in filings to shareholders. The announcement is likely welcome news for corporate defendants that have lamented a 2016 ruling by a federal appellate court in New York, which found that companies can be sued for fraud by third parties for such alleged disclosure shortcomings.

At issue are Securities and Exchange Commission antifraud rules, which allow investors and other private entities to sue public companies for statements or omissions that are “material” and “misleading.” Historically that right wasn’t extended to a management’s discussion of known trends and uncertainties until a ruling last year by the 2nd U.S. Circuit Court of Appeals in New York. That appellate court’s decision conflicts with precedents set by at least two additional circuit courts, which have held companies aren’t liable to private litigants for the contents of such “forward-looking statements.”

The high court said it would consider the matter in the fall of 2017, giving the justices a platform to potentially end or limit private lawsuits in these cases. The appeal was brought by a company called Leidos Holdings Inc., a Reston, Va.-based national security and engineering company formerly known as SAIC, which was sued by the Indiana Public Retirement System and two other state public pension funds. The funds allege SAIC in 2011 omitted material information about a kickback and overbilling scheme involving the firm’s former employees and New York City.

The U.S. Chamber of Commerce and the Securities Industry and Financial Markets Association, a Wall Street industry group, urged the high court to consider the case last year, saying the second circuit court’s ruling will extend “a state of confusion over how…companies disclose forward-looking information.” To avoid lawsuits, companies will err on the side of disclosing a flood of “essentially useless” information they might otherwise omit, the industry groups said in their filing, which sided with Leidos. A decision expected by the end of June 2018.

Here’s a blurb from Sullivan & Cromwell about the case:

Earlier today, the U.S. Supreme Court granted certiorari in Leidos, Inc. v. Indiana Public Retirement System, No. 16-581. This appeal, which likely will not be decided until the first half of 2018, at the earliest, presents the question of whether non-disclosure of “known trends or uncertainties” under Item 303 of Regulation S-K may give rise to private liability for securities fraud under Section 10(b) of the Securities Exchange Act of 1934. The U.S. Supreme Court will address a split between the Second Circuit, which has held that, under some circumstances, non-disclosure under Item 303 of Regulation S-K could give rise to private securities fraud liability, and the Third and Ninth Circuits, which held that such non-disclosure does not create a private securities fraud claim. Although the Supreme Court’s decision will not affect the obligation of registrants to comply with Item 303, it may have a significant impact on their potential exposure to securities fraud claims.

Texas: Proposed Bill Would Burden Proxy Advisors & Activists

Here’s the intro from this memo by Olshan’s Steve Wolosky, Andrew Freedman & Ron Berenblat:

The Legislature of the State of Texas has proposed a new bill that would require certain investors in publicly traded companies headquartered in Texas and proxy advisory firms making recommendations with respect to publicly traded Texas-based companies to comply with a set of austere disclosure requirements. The proposed “Bring Business to Texas and Fairness in Disclosure Act” (the “Texas Act”) is purportedly intended to “foster and promote the immediate and full disclosure of the individual ownership of persons who are activist investors” and “prohibit discrimination by a proxy advisory firm.”

The unduly burdensome, excessive and inequitable scope of the proposed disclosure requirements is like nothing we have ever seen proposed by any state. If the Texas Act is adopted, it could have a chilling effect on shareholder activism and proxy advisory work with respect to public companies that have a specified presence in Texas, which, in turn, would help entrench management and the Boards of underperforming Texas-based companies.

Conflict Minerals: Comments So Far

A few months ago, SEC Acting Chair Piwowar requested comment on reconsidering the SEC’s 2014 guidance on conflict minerals. The comment deadline is now passed – and here’s the comments received so far. Note that the Wildlife Conservation Society has gotten over 10,000 folks to submit a form letter supporting the rule…

Here’s some analysis of these comment letters from Elm Sustainability Partners’ Lawrence Heim – and here’s some more analysis, including this excerpt:

Just over 12,000 comments were submitted to the SEC in response to Acting Chairman Piwowar’s request for comments. More than 11,700 of those comments were form letters and just over half of the remaining 300 were submitted by concerned citizens. Approximately 130 comments were submitted by company representatives, industry groups, Congolese society, NGOs and investors. In our view, opinion reflected in the 130 was split relatively evenly for and against the rule. We noted that several of the comments against the rule cited erroneous and outdated information, specifically concerning costs of rule implementation.

– Broc Romanek

Back in early February, the SEC’s Acting Chair – Mike Piwowar issued a statement directing the Corp Fin Staff to revisit the pay ratio rule & requested public comment about any challenges in complying with the rule. Comments were due within 45 days – so the deadline has now passed.

Here’s the list of comments received so far. Beyond a short form letter in favor of the rule (that was received over 3k times), there are several hundred comment letters. Most of these are short letters from individuals, also expressing an interest in keeping the rule. Overall, this new request for comment has resulted in a response that is a mere fraction of the 287k comment letters that the SEC received on it’s rule proposal.

Let’s dig down into these new comment letters. Only a handful of these letters are from companies explaining the challenges. But there are a few, like these:

– Quest Diagnostics
– Chesapeake Utilities
– Plexus
– Finish Line
– Graco
– BorgWarner
– Flushing Financial
– Stein Mart
– National Association of Manufacturing (citing situations of anonymous companies)

There are a number of comment letters from institutional investors, including:

– Group of Couple Hundred Investors, Unions & Others (posted as “Aberdeen Asset Management”)
– CalSTRS
– Everence Financial & Praxis Mutual Funds
– Walden Asset Management
– Trillium Asset Management

And there’s a few from unions:

– International Brotherhood of Teamsters
– AFL-CIO
– AFSCME

Our Executive Pay Conferences: Last Chance for 30% Early Bird Discount

Last chance to take advantage of the 30% discounted “early bird” rate for our popular conferences – “Tackling Your 2018 Compensation Disclosures: Proxy Disclosure Conference” & “Say-on-Pay Workshop: 14th Annual Executive Compensation Conference” – to be held October 17-18th in Washington DC and via Live Nationwide Video Webcast. Here are the agendas – 20 panels over two days.

Early Bird Rates – Act by This Friday, March 31st: Huge changes are afoot for executive compensation practices with pay ratio disclosures on the horizon. We are doing our part to help you address all these changes – and avoid costly pitfalls – by offering a special early bird discount rate to help you attend these critical conferences (both of the Conferences are bundled together with a single price). So register by March 31st to take advantage of the 30% discount.

– Broc Romanek

In this 33-minute podcast, Brian Lane & Jim Moloney talk about their SEC days, including:

1. How did you wind up being a securities lawyer?
2. What was your career path within the SEC?
3. What is one of your fondest memories in Corp Fin?
4. What is one of the more strange things about working at the SEC?
5. What would you consider to be one of the bigger things that have changed at the SEC since you left?

This podcast is also posted as part of my “Big Legal Minds” podcast series. Remember that these podcasts are also available on iTunes or Google Play (use the “My Podcasts” app on your iPhone and search for “Big Legal Minds”; you can subscribe to the feed so that any new podcast automatically downloads…

The Last Greedy Executive?

In case anyone out there is worried that we have seen the last of greedy executives, check out this recent US District Court-SDNY opinion by Judge Jed Rakoff. You cannot read this first paragraph of the case without taking an interest!

Why would the executives (and former principals) of a paddle-board division of a sports and recreation company cause the company to make a one-time $60,500 purchase of one million stickers that the executives themselves immediately attempted to repurchase from the company for approximately $4 million?

The answer is that they thereby hoped to stick the company with a $10 million “earnout” payment to the executives, thus netting themselves a cool $6 million. Thanks, however, to the age-old doctrine of good faith and fair dealing, and similar legal protections, in the end it is these executives who are stuck.

Transcript: “Pay Ratio – The Top Compensation Consultants Speak”

We have posted the transcript for our recent CompensationStandards.com webcast: “Pay Ratio: The Top Compensation Consultants Speak.”

– Broc Romanek

Here’s the news from this WSJ article by Andrew Ackerman:

The Senate Banking Committee approved a series of modest, bipartisan bills aimed at making it easier for companies to grow and raise cash, the first legislation to move through the panel in the new Congress. Thursday’s bills, which the panel approved as a single package by voice vote, is significant because they are among the first of several deregulatory measures congressional Republicans are expected to advance this Congress.

The measures—most of which were introduced in prior years but failed to clear the Senate—are separate from broader efforts to rollback the 2010 Dodd-Frank financial overhaul which are expected to advance in the House but face an uncertain path in the Senate. The Trump administration, which has laid out plans to roll back Obama-era financial regulations, now appears to be more focused on other parts of its agenda, such as tax changes.

Banking Committee Chairman Mike Crapo (R., Idaho) on Thursday said he wanted to move ahead on bipartisan legislation that lawmakers had already developed in the prior Congress. His panel is working “to build the consensus” on broader changes to Dodd-Frank, though he acknowledged that work is more “contentious” and offered no timetable for such legislation. Only two Democrats, Massachusetts Sen. Elizabeth Warren and Rhode Island Sen. Jack Reed, voiced opposition to Thursday’s package of bills, with Ms. Warren saying she didn’t believe some of the measures had adequate investor protections.

One of the bills, authored by Sens. Pat Toomey (R., Pa.) and Mark Warner (D., Va.) would give privately held firms and startups greater flexibility in awarding stock to employees without triggering what critics say are overly intrusive reporting requirements. The legislation, endorsed by regional grocer Wegmans Food Markets Inc., would boost a $5 million cap in the amount of stock closely held companies can award employees before triggering certain disclosures the companies find meddlesome, such as cash flows and lists of shareholders’ ownership interests. The bill would increase the threshold to $10 million and peg it to inflation.

A second bill, introduced by Sens. Heidi Heitkamp (D., N.D.) and Dean Heller (R., Nev.), would raise to 250 from 100 the number of investors venture-capital funds can acquire before triggering SEC registration requirements. Another measure, also introduced by Mr. Heller, would credit stock exchanges for any fees they may have overpaid the Securities and Exchange Commission.

And a fourth bill, by Mr. Heller and Sen. Gary Peters (D., Mich.), would ease certain restrictions concerning the publication of research on exchange-traded funds. The House Financial Services Committee was expected to approve the same bill on Thursday. A fifth bill, sponsored by Sens. Robert Menendez (D., N.J.) and Orrin Hatch (R., Utah), would impose greater oversight on mutual funds based in, and sold to residents of, U.S. territories like Puerto Rico that have previously escaped SEC regulation.

Financial Choice Act: A Long Shot?

As I’ve blogged before, the “Financial Choice Act” is a House bill that would roll back much of Dodd-Frank (and more). Here’s an excerpt from this Bloomberg article:

Now, though, the drive to wipe out or scale back Dodd-Frank has lost momentum. Trump issued an executive order on Feb. 3 for Treasury Secretary Steven Mnuchin to review the law, but the president made no mention of it in his priority-setting speech to Congress on Feb. 28. As with the Republican vow to repeal Obamacare, the sticking point may be finding a replacement for the law on the books. “We need to regulate more simply, cut back on unintended consequences, and see if we can recalibrate this,” says Douglas Elliott, a partner at management consulting firm Oliver Wyman. “That happens to be an extremely hard thing to do.”

Hensarling does already have a bill in the House, the Financial Choice Act, that’s being given long odds. “We think the chances that the bill becomes law are less than 20 percent—maybe as low as 10 percent,” Brian Gardner, Washington analyst at the investment bank Keefe, Bruyette & Woods, wrote to clients on Feb. 16. Even so, the bill offers a glimpse into Republicans’ thinking on how to shape financial regulation.

Peirce, Fairfax Unlikely to Be Renominated as SEC Commissioners

Living inside the Beltway, you learn that being nominated for a high-ranking government job isn’t the same as obtaining that job. I know all sort of folks that were nominated – and then things got hung up in the Senate for months & years. It’s a brutal wait. All your friends – & work colleagues – presume you’re sliding into this nice new job. But then it never happens. The Twilight Zone. So I feel the pain of Hester Peirce and Lisa Fairfax.

Here’s an excerpt from this WSJ article by Dave Michaels:

Both Hester Peirce and Lisa Fairfax, who were nominated last year to fill two vacant slots at the SEC, rejoined an SEC advisory committee they had stepped away from after former President Barack Obama tapped them to join the agency as commissioners. Ms. Peirce, a Republican, and Ms. Fairfax, a Democrat, both won backing from the Senate Banking Committee last year, but their nominations stalled before they could win approval from the full Senate. In particular, both women faced opposition from Senate Democrats who wanted them to endorse a rule that would require public companies to report their political spending.

Their return to roles on the SEC’s Investor Advisory Committee signals neither Ms. Peirce nor Ms. Fairfax expects to be renominated. Staying away from the SEC advisory committee would be the safe move for a policy wonk or lawyer who expects to face another grilling from partisan senators. Instead, both are now free to make statements about policy that could come back to bite them if they were to face a new Senate hearing.

– Broc Romanek – still employed (but the day is young)…

Whoa! Last week, a member received an email claiming to be from EDGAR/SEC that had an attachment for revised 10-K filing instructions. She forwarded the email to her IT department – & it turned out the attachment was a “very nasty piece of malware” that could have infected the entire company. It was a phished email that came from a SEC email address (filings@sec.gov) with a subject line of “Important changes to Form 10-K and Instructions.”

So beware! This is quite a tailored type of malicious email for an in-house lawyer to be receiving! Yesterday, the SEC posted a notice about this phishing scam – see this Fortune article…

How Nasdaq Handles Its FAQs

Recently, a member asked how to best navigate “Nasdaq’s FAQs.” There is this “advanced search” function, which include both open-ended search boxes and topical categories in two drop-down boxes (ie. “Category” and “Sub-Category”).

Each FAQ has its own “Identification Number,” which is now prominently displayed at the end of the Search Results Bar. To search by these ID Numbers, select “Material with this Identification Number” from the Find drop down field. You can also choose to search by date to find what’s new. FAQs can also be shared through email by selecting the envelope icon (or Mailto Link) displayed on the bottom right of each FAQ. Other content in Nasdaq’s Reference Library can be searched in the same way.

Nasdaq also recently added a “Google Site” search function to its “Listing Center” that allows users to search all content available on the Listing Center – including the “Reference Library” – in one place.

Reform: More on the “Rule Reduction” Executive Order

Earlier this week, the White House’s Office of Information & Regulatory Affairs issued this memo to federal agencies, reminding them of their obligations set forth in this executive order – and requiring agencies to submit regulatory reduction plans by the end of this month. Although the executive order doesn’t apply to the SEC, the White House has made it clear that it expects independent agencies – like the SEC – to fall in line…

Meanwhile, as noted in this Bloomberg article, it appears that the SEC has imposed a hiring freeze & non-essential travel ban in anticipation of budget cuts…

– Broc Romanek – still employed (but the day is young)…