Here are the results of our recent survey on the use of board portals:
1. When it comes to board portals, our company:
– Doesn’t have one and isn’t considering using one in the near future – 3%
– Doesn’t have one but is considering whether to use one – 3%
– Adopted one within the past two years – 9%
– Adopted one more than two years ago – 84%
2. For those with board portals, our company:
– Licensed an off-the-shelf portal – 100%
– Built it in-house – 0%
– Hired a service provider to build a custom portal – 0%
3. For those with off-the-shelf board portals, we have:
– Asked whether our vendor has ever had a security breach – 24%
– Investigated our vendor’s security – 48%
– Plan to investigate our vendor’s security in the near future – 14%
– Not worried about our vendor’s security – 14%
Please take a moment to participate anonymously in these surveys:
Corporate Lonely Hearts: Public Shell Seeks Reverse Merger Partner
I think Jane Austen put it best when she said, “it is a truth universally acknowledged, that a private company in possession of a good fortune must be in want of a public shell to reverse merge with.” Well, she said something like that anyway. . .
However, finding your corporate soul mate isn’t always an easy process – and maybe that’s why one lonely public shell decided to take out a personals ad to let prospective suitors know it was available. The ad wasn’t shy about letting those suitors know that this shell had a lot to offer:
OTCQB Ready Fully Reporting Pink Trading Public Shell For Sale
– Selling control block (30,000,000 restricted shares)
– Has symbol, trading and quoted on the OTC Pink w/piggyback status OTCQB READY!
– FULLY REPORTING – FULLY AUDITED BY PCAOB ACCOUNTING FIRM
Other attributes included “DTC Eligible!” and “No regulatory issues.” Of course, as Madonna noted, “we are living in a material world,” so a suitor wasn’t going to get all this for free. So what was the price? “Cash & Carry – Ask $349,500.00.” The big question is – did true love prevail? Based on my sleuthing, it appears that the answer is yes. Our public shell – “China Grand Resorts” – seems to have found Jacksam Corporation, a maker of cannabis vaporizers for medical marijuana. The couple reverse merged last September & gave birth to a bouncing baby S-1 earlier this month.
Transcript: “Controlling Shareholders – The Latest Developments”
We have posted the transcript for the recent Deallawyers.com webcast: “Controlling Shareholders: The Latest Developments.”
In January, I blogged about the SEC’s enforcement proceedings against four companies that were unable to get their acts together when it came to ICFR. The SEC’s action was a shot across the bow of other companies that might have thought that full disclosure of a material weakness was sufficient. The SEC’s action delivered a clear message that when you’ve got an internal controls problem, you’ve got to fix it.
But at the same time, lots of companies have ICFR issues – and many material weaknesses can’t be fixed overnight. So which companies should be concerned that SEC Enforcement might soon be knocking at their doors? This ‘Audit Analytics’ blog may help companies assess their risk of being subject to an enforcement proceeding. It reviewed data on material weakness disclosures during the period from 2007-2017, and it concludes that the 4 companies targeted by the SEC in these proceedings all involved extreme cases of non-compliance:
When it comes to poor internal controls, these companies are some of the worst offenders, as the problems were allowed to linger for years. Looking at data from 2007 and 2018, 3.4% of registrants with any ineffective ICFR report had seven ineffective management ICFR reports, comparable to Digital Turbine. This percentage decreases to 1.9% for registrants such as LifeWay and CytoDyn that had nine ineffective ICFR reports. Overall, less than 10% of registrants with any ineffective ICFR management ICFR report had seven or more ineffective reports.
As the biggest of the four registrants, Grupo Simec is noteworthy, being one of only 72 companies traded on NYSE that had ineffective independent auditor’s reports on internal controls in 2017 and one of only two companies that has had ten ineffective audited reports since 2007.
While companies may take some solace in the fact that these 4 targets were outliers, the blog cautions that other firms with multiple ineffective ICFR reports but only minimal remedial actions could also be at risk.
Buffett to GAAP: “Get Off My Lawn!”
Last week, Warren Buffett’s annual letter to Berkshire-Hathaway shareholders landed – and while it had its usual on-brand mix of folksy humor and provocative statements (e.g., deals are too pricy & federal debt doesn’t matter), the Oracle of Omaha led off with a jeremiad against GAAP’s new “mark-to-market” requirement for unrealized securities gains & losses:
Berkshire earned $4.0 billion in 2018 utilizing generally accepted accounting principles (commonly called “GAAP”). The components of that figure are $24.8 billion in operating earnings, a $3.0 billion non-cash loss from an impairment of intangible assets (arising almost entirely from our equity interest in Kraft Heinz), $2.8 billion in realized capital gains from the sale of investment securities and a $20.6 billion loss from a reduction in the amount of unrealized capital gains that existed in our investment holdings.
A new GAAP rule requires us to include that last item in earnings. As I emphasized in the 2017 annual report, neither Berkshire’s Vice Chairman, Charlie Munger, nor I believe that rule to be sensible. Rather, both of us have consistently thought that at Berkshire this mark-to-market change would produce what I described as “wild and capricious swings in our bottom line.”
If Warren sounds grumpy, well, you would be too if you lost $25 billion in a single quarter, like Berkshire did due to Q4 mark-to-market adjustments. But he should take some consolation in the fact that Berkshire’s by no means alone in dealing with the increased volatility resulting from the new standard.
The mark-to-market requirement was expected to have a big impact on earnings for many companies, and it appears to be living up to its advance billing. For example, this recent Reuters article notes that the new standard’s effect on publicly traded PE funds such as Blackstone, Carlyle & KKR has been so significant that they’ve opted to deemphasize the traditional “economic net income” metric – which reflects mark-to-market adjustments – in favor of “distributable earnings,” which represents the actual cash available for paying dividends.
Delaware Chancery: Choosing Venezuela’s President Since 2019?
The Delaware Chancery Court has long played an outsized role in shaping the destiny of some of the world’s largest businesses. Now, this Bloomberg story says that the court may be called upon to weigh-in on the fate of a nation – because it may have to determine who is Venezuela’s lawful president as part of a battle for control over Citgo. Here’s an excerpt:
The leadership crisis in Venezuela could lead to an odd legal situation in the U.S. — a Delaware judge may be asked to decide who is the legitimate president of the South American country.
The issue could arise in the U.S. because of the power struggle over Citgo Petroleum Corp., the Houston-based refiner owned by Venezuela oil giant Petroleos de Venezuela SA. Last week, Juan Guaido, the U.S.-backed head of Venezuela’s National Assembly, named new directors to Citgo and PDVSA, a critical part of his strategy to seize oil assets and oust the regime headed by autocrat Nicolas Maduro, who remains in control of the military and other key parts of the government.
Venezuela’s president is the controlling shareholder of PDVSA, and the article speculates that lawyers for the U.S.-backed Guaido may set up a Chancery Court contest centering on who is Venezuela’s president by trying to remove Maduro’s directors and replacing them with his slate.
Big institutional holders seldom have trouble getting management’s ear – but traditionally, retail investors who weren’t willing to play the gadfly game could usually count on a polite brush-off from the IR department. Now, it looks like that situation may be changing. Broc recently blogged about SAY, a New York-based tech startup that provided a platform for retail investors to vote on questions to ask Elon Musk during a recent Tesla earnings call. But SAY’s not the only entity that’s trying to help retail investors be heard on matters that concern them. Check out ‘Stake’ – which aims to pair retail investors with a small group of socially responsible investment funds that will serve as “Champions” for their issues.
Stake provides a platform for retail shareholders to identify specific “Asks” that they want addressed by the companies in which they invest. Once an ‘Ask’ gets a critical mass of support, this excerpt from Stake’s website lays out what happens next:
When an Ask reaches its support goal, one of Stake’s Champions will take that Ask directly to company management, advocating on behalf of all those that supported the Ask. Our Champions are experts at persuading companies to improve their social and environmental impact, and they are already connected to the corporate decision-makers. Stake is a tool like none before. By connecting you with a professional Champion, your voice reaches the boardroom.
Investors who supported the specific “Ask” receive progress updates on the company’s response to it. Stake’s founders are themselves climate change activists & companies have implemented a number of the Asks that Stake’s allied funds championed.
I know it’s easy to be skeptical of efforts like these – and I have my doubts about how much traction Stake’s going to be able to get. But I’m also reminded that it only took David one stone to take down Goliath, & these folks have the potential to muster a lot more firepower than that.
Tomorrow’s Webcast: “Conduct of the Annual Meeting”
Tune in tomorrow for the webcast – “Conduct of the Annual Meeting” – to hear Nu Skin Enterprises’ Greg Belliston, The Brink Company’s Lindsay Blackwood, Foot Locker’s Sheilagh Clarke, Carl Hagberg of the “Shareholder Service Optimizer” and General Motors’ Rick Hansen talk about how to best prepare for your annual shareholders meeting.
Annual Reporting: Don’t Forget to Check On Your Filer Status!
This Akin Gump blog reminds companies to check on their filing status while they’re preparing to file their Form 10-K – many more companies may qualify as “smaller reporting companies” this year due to the SEC’s recent rule changes. Here’s an excerpt:
As public companies prepare to file their annual reports on Form 10-K for the year ended December 31, 2018, they should consider whether they qualify for smaller reporting company status under the recently amended definition of smaller reporting company, which became effective on September 10, 2018, and the related CDIs updated by Staff of the Division of Corporation Finance on November 7, 2018.
The amended SRC definition raises the threshold to allow more companies to qualify as an SRC and benefit from the election to use the scaled disclosure accommodations available to SRCs. SRCs may choose compliance with either the SRC scaled disclosure requirements or the larger company disclosure requirements on an item-by-item or “a la carte” basis for each filing as long as disclosures are provided consistently and permit investors to make period-to-period comparisons.
The blog also reminds companies thinking about taking advantage of scaled disclosure that, to the extent an SRC scaled item requirement is more rigorous than the same larger company item requirement, SRCs are required to comply with the more rigorous disclosure.
Lyft finally dropped the Form S-1 for its much anticipated IPO on Friday. The filing fundamentally changed humanity forever – or at least that’s the impression you’d get from reading Lyft’s overheated nuclear jargon-bomb of a prospectus. If you think I’m being unfair, check out this lofty description of the culture & values of a company that owes a healthy chunk of its business to ferrying around drunk people:
Our core values are Be Yourself, Uplift Others and Make it Happen. Our team members, who uphold our values and live our mission every day, are at the forefront of cultivating and spreading this culture across the drivers, riders and communities we serve. This continuous interaction across the entire Lyft community creates a virtuous cycle which further reinforces our culture and fuels our growth.
Look, I worked on a lot of IPOs back in the day, and I plead guilty to helping draft a lot of meaningless gibberish about companies doing things like “proactively leveraging synergies” in prospectus summaries with silly captions like “Our Strategic Vision” & “Our Competitive Advantage.” But this thing reads like a parody of a tech company prospectus – starting with the pink cover page & culminating in a founders’ letter accompanied by an assortment of photos & quotes from photogenic millennials whose lives have been transformed by one-click access to an unlicensed cab. Toss in the nearly $1 billion loss for the most recent year, and you’ve got truly state of the art stuff.
And maybe the biggest inside joke is that many people – including EU regulators – think ride share businesses like Lyft aren’t tech companies at all. Instead, they essentially view them as ‘gypsy cab’ apps. What’s more, in reading Lyft’s filing, you get the impression that its biggest market opportunity lies in the rapidly growing demographic of people who are too poor to buy their own cars. How do you spin that positively? You do it like this:
We believe that the world is at the beginning of a shift away from car ownership to Transportation-as-a-Service, or TaaS. Lyft is at the forefront of this massive societal change. Our ridesharing marketplace connects drivers with riders and we estimate it is available to over 95% of the U.S. population, as well as in select cities in Canada. In 2018, almost half of our riders reported that they use their cars less because of Lyft, and 22% reported that owning a car has become less important. As this evolution continues, we believe there is a massive opportunity for us to improve the lives of our riders by connecting them to more affordable and convenient transportation options
Of course, since the Lyft folks are working 24/7 to bring humanity into “the broad, sunlit uplands” of TaaS (not to be confused with TASS), management can’t afford to be distracted by the demands of public shareholders. Perhaps that’s why Lyft not only has a dual class capital structure, but also a staggered board, blank check preferred, and a prohibition on shareholder written consent actions, just to name some of its antitakeover protections. The CII has already weighed-in with the customary objections.
Personally, I couldn’t care less if Lyft wants to offer the public low vote stock – if you don’t like it, don’t buy it. But I’m looking forward to the post-closing pearl clutching about these provisions by the governance side of the house of the same institutions whose portfolio managers would likely stampede over their own children to get shares allocated to them in the deal.
If you’re looking for more of a deep dive into Lyft’s proposed IPO, check out this MarketWatch.com article.
Dual Class Companies: Are “Coattails” the Answer?
Lyft’s just the latest high profile IPO to include a dual class capital structure. There’s been a lot of sound & fury about public companies with these structures – and we’ve blogged about quite a bit of it. But this recent study claims that our neighbors to the north are the source of an idea for moving forward on this issue. Here’s the abstract:
The debate over whether dual class of shares increases or decreases share value, should be prohibited or not, should be subjected to mandatory sunset provisions, and so on has been heating up over the last few years. This paper reviews the pros and cons of dual class of shares in light of more recent empirical results of (mostly) American studies. The paper surveys the evolution of dual-class companies in the Canadian context and makes a number of recommendations to enhance the usefulness of this type of capital structure and protect the rights of minority shareholders.
The paper comes out against time-based sunset clauses but supports the obligation for dual-class companies to adopt a “coattail” provision, as is the case in Canada, which provision ensures that all shareholders will have to be offered the same price and conditions should the controlling shareholder decide to sell its controlling stake in the company. The paper also recommends that separate tallies of vote results be made public for each class of shares and that a third of board members be elected by shareholders with “inferior” voting rights.
Now, I hate to disabuse North America’s designated driver of its notion that “coattails” are a Canadian invention, but the there’s lots of precedent for this south of the border as well – and it goes back decades. You need look no further than my all-time favorite deal for evidence of this.
In the Cleveland Indians’ 1998 initial public offering, the company’s charter included a provision that generally prohibited the transfer of the high-vote shares held by then-owner Dick Jacobs other than as part of a transaction in which the low vote shares received the same consideration as the high-vote shares. And you can take my word for it – we weren’t innovators. In fact, we shamelessly stole that language from charter documents filed in several precedent transactions.
The SEC’s limited track record in litigation involving whether tokens are securities has been pretty good – but there was one recent blemish. In December, a California federal court denied the SEC’s motion for a preliminary injunction against Blockvest’s proposed token offering, holding that the agency had not provided enough information to deem the token a security. Here’s an excerpt from John Reed Stark’s blog describing the court’s decision:
On February 14, 2019, in a stunning and extraordinary reversal from his November decision, Judge Curiel sent shockwaves through the ICO industry. Specifically, Judge Curiel granted the SEC’s bid for a preliminary injunction against Blockvest after the SEC asked him to reconsider, based upon, “a [now] prima facie showing of Blockvest’s past securities violation and newly developed evidence which supported the conclusion that there is a reasonable likelihood of future violations.”
Last week, Corp Fin issued new CDIs addressing board diversity disclosure issues. Now, Rep. Greg Meeks (D-NY) & Sen. Bob Menendez (D-NJ) have introduced legislation that would require companies to disclose self-identified demographic info about their board & executive officers. Here’s an excerpt from a recent Weil blog summarizing the proposed legislation:
The bill, which garnered the support of the Council for Institutional Investors and the U.S. Chamber of Commerce, would require public companies to disclose annually in their proxy statements data on the racial, ethnic, and gender composition, as well as veteran status, of its board of directors, director nominees and executive officers based on voluntary self-identification. Moreover, disclosure regarding the adoption of any board policy, plan or strategy to promote racial, ethnic, and gender diversity would be required.
The bill would also require the SEC’s Office of Minority and Women Inclusion to publish best practices for corporate reporting on diversity. Rep. Meeks introduced the same legislation during the last Congress, but it went nowhere. With Democrats controlling the House & support from the CII & the U.S. Chamber of Commerce, perhaps it will get more traction this time around.
Board Gender Diversity: Will Supply Meet Demand?
Recently, Liz wrote on “The Mentor Blog” that assuming current board composition, California’s board gender diversity statute will require Golden State companies to find over 1000 women directors by the end of 2021.
A recent study on the market’s reaction to the statute suggests that there is some concern among investors that there won’t be enough qualified female director candidates to meet that demand – and this concern has implications for companies located in & outside of California. Here’s an excerpt from the study’s abstract:
On September 30, 2018, California became the first U.S. state to introduce a mandatory board gender quota applicable to all firms headquartered in the state. Using a large sample of publicly-listed firms headquartered in the U.S., we find that the introduction of the quota is associated with significantly negative announcement returns to California-headquartered firms. Consistent with the quota imposing frictions, this effect is larger for firms requiring more female directors to comply with the quota.
According to the study, California headquartered companies had a 0.47% lower return on the first day after the quota announcement than a control group of matched on size and industry. It says that this effect is larger for companies needing to add more female directors to comply with the quota and for those with low corporate governance standards – results that are consistent with the theory that smaller companies and those with poor governance could have a hard time recruiting qualified women candidates.
The study also identified negative “spillover” effects on returns for companies headquartered outside California. These were concentrated among companies in industries where California-based companies need to recruit a lot of female directors to comply with the law. Companies headquartered in “blue” states were also negatively affected – perhaps due to perceptions that they were more likely to become subject to a board gender quota than those based in “red” states.
Europe’s experience with a female quota requirement for boards suggests that companies may want to expand their search to some less traditional sectors – such as women working in leadership positions in government, non-profits & academia.
January-February Issue of “The Corporate Counsel”
We recently mailed the January-February issue of “The Corporate Counsel” print newsletter (try a no-risk trial). The topics include:
– Tone Deaf at the Top: Now It’s Your Problem When an Executive Messes Up
1. Is There an Insider Trading Problem?
2. An Unusually-Timed Form 4 Attracts Attention
3. Beware of the Potential for Shareholder Derivative Suits
4. There Are Disclosure Issues Everywhere
5. Sanctions & Remedial Steps
– Reg A Gets an Upgrade: Opening the Exemption to Reporting Issuers
– Annual Season Items
– Non-GAAP: “Equal or Greater” Prominence Applies to Your Earnings Release
– Form S-3 is Sometimes a “Come as You Were” Party
The Roman poet Juvenal famously asked “quis custodiet ipsos custodies” – “Who watches the watchers?” When it comes to public company gatekeepers, SEC Enforcement’s answer is “we do.” That’s clearly the message sent by the insider trading complaint that the SEC filed yesterday against a former Apple lawyer who, among other things, was responsible for overseeing compliance with the company’s insider trading program! Yes, the person responsible for insider trading compliance is alleged to have engaged in illegal insider trading!
Here’s an excerpt from the SEC’s press release that lays out the agency’s allegations:
The SEC’s complaint alleges that Gene Daniel Levoff, an attorney who previously served as Apple’s global head of corporate law and corporate secretary, received confidential information about Apple’s quarterly earnings announcements in his role on a committee of senior executives who reviewed the company’s draft earnings materials prior to their public dissemination.
Using this confidential information, Levoff traded Apple securities ahead of three quarterly earnings announcements in 2015 and 2016 and made approximately $382,000 in combined profits and losses avoided. The SEC’s complaint alleges that Levoff was responsible for securities laws compliance at Apple, including compliance with insider trading laws. As part of his responsibilities, Levoff reviewed and approved the company’s insider trading policy and notified employees of their obligations under the insider trading policy around quarterly earnings announcements.
Parallel criminal charges were also filed. Obviously, it’s up to the SEC to prove the conduct it alleges here, but this seems as good a time as any to remind you of Broc’s recent advice to anyone thinking about dabbling in insider trading – don’t do it!
In the interest of full disclosure, I confess that I’m nowhere near as erudite as the first sentence of this blog would suggest. Truth be told, I remembered the English version of the “who watches the watchers” quote from the “Watchmen” movie – and then I just got all of that Juvenal stuff by Googling it.
SEC’s Peirce Says “Lighten Up” On Howey For The Crypto
The Howey test considers “investment contracts” to be securities if they involve an investment of money in a common enterprise with an expectation of profit to be derived “solely from the efforts of others.” The SEC’s position has been that many token deals fit squarely within the definition of an “investment contract.” But in a recent speech, SEC Commissioner Hester Peirce suggested that the agency should take more flexible approach when it comes to applying the Howey test to digital assets:
While the application of the Howey test seems generally to make sense in this space, we need to tread carefully. Token offerings do not always map perfectly onto traditional securities offerings. For example, as a recent report from Coin Center noted, the decentralized nature of token offerings can mean that the capital raised through token sales may not be truly owned or controlled by a company. Functions traditionally completed by people designated as “issuers” or “promoters” under securities laws—which, importantly, bestow those roles with certain responsibilities and potential liabilities—may be performed by a number of unaffiliated people, or by no one at all.
Commissioner Peirce pointed out that since some token environments aren’t centralized & contemplate important roles for individuals “through mining, providing development services, or other tasks,” the SEC must avoid casting “the Howey net so wide that it swallows the “efforts of others” prong entirely.”
She expressed concern that some apparently legitimate projects may be made untenable by the federal securities laws, and also observed that regulators “ought not to assume that absent the application of the securities laws to the world of tokens, there would never be any order.” Well folks, they don’t call her “Crypto Mom” for nothin’!
At-the-Market Offerings: Hot! Hot! Hot!
Given how volatile the stock market was last year, it probably shouldn’t come as a big surprise that “at-the-market” offerings had a gangbuster year. This Bloomberg Law blog has the details:
An impressive 202 ATM offerings announced in 2018 were projected to raise a total of $31.75 billion, the largest amount in the last ten years. The average deal size for an ATM offering announced in 2018 was $157 million. To put things in perspective, 274 IPOs were priced in 2018 and raised $64.74 billion. Looking at industry distribution for ATM offerings in 2018, 52 percent were announced by companies in the Consumer, Non-Cyclical sector and 27 percent came from the Financial sector.
The two largest ATM offerings announced in 2018 were by: MPLX LP (announced on March 13, in the Energy sector and projected to raise $1.74 billion) and Annaly Capital Management Inc. (announced on January 3, in the Financial sector and projected to raise $1.50 billion).
ATMs were pretty popular shortly after the financial crisis, but fell out of fashion. The blog says that over the last 5 years, use of this financing tool has rebounded – along with market jitters.
Everybody knows that with the SEC operating with a skeleton crew for over a month, Corp Fin has a pretty deep hole to dig itself out of. This ‘Audit Analytics’ blog gives you a sense of just how far behind the shutdown has put the Staff. For example, here’s what the blog has to say about comment letters:
According to their Plan of Operations during Lapse in Appropriations, the Commission had an extremely limited number of staff members available to respond to emergency situations. There were 4,436 employees on-board prior to the shutdown, with roughly 110 expected to be retained because they were engaged in law enforcement activities and about 175 employees to be retained to protect life or property.
Having such a limited staff meant an even more limited scope of operations. While most SEC filings – annual, quarterly, and 8-Ks – continued as usual, there were two places, in particular, that were affected by the shutdown; namely, comment letters and IPOs. During the shutdown, the SEC staff did not review corporate filings and did not issue any comment letters. To help gain a sense of how many letters are typically processed during this time, we looked at the same period of the shutdown last year (December 21, 2017 to January 25th, 2018); there were over 300 comment letters dated during this time.
What about IPOs? The blog cites a WSJ article for the proposition that there were no IPOs this January, compared with 17 during the first month of last year. According to this report from NBC News, the SEC had 40 IPOs in process at the time of the shutdown.
“Faster Than a Speeding Bullet”: 10b5-1 Legislation Flies Through House!
Remember last month, when Liz blogged about the introduction of bipartisan legislation that would require the SEC to study whether Rule 10b5-1 should be amended to add more procedural restrictions for trading plans? According to this article from the Center for Executive Compensation, the bill has flown through the House & may be on the fast track in the Senate as well:
At the end of last week, the House of Representatives approved, on a 413-3 vote, a bipartisan bill which would require the SEC to conduct an in-depth study of 10b5-1 executive stock trading plans. (A Rule 10b5-1 stock trading plan allows an individual with access to material, nonpublic information to execute sales or purchases of company stock in accordance with a pre-determined schedule, creating an affirmative defense to potential violations of company rules or federal securities laws regarding insider trading.)
The bill now moves to the Senate, where it appears Democrats are eager to move the bill and are working to create the same bipartisan atmosphere as in the House. In the past, the Senate has staunchly refused to take up any bill that does not exhibit a strong path to bipartisan adoption – especially those addressing governance and compensation issues.
The article says that the House’s overwhelming approval of the bill puts it on a path which could lead to Senate action. If the bill does pass, it won’t mean any changes in 10b5-1 right away, but the results of the study it would mandate could provide a blueprint for potential changes.
Transcript: “12 Tricks to Help You During Proxy Season”
We have posted the transcript for our recent webcast: “12 Tricks to Help You During Proxy Season.”
Last month, I blogged about Johnson & Johnson’s unusual request to exclude a shareholder proposal that would have required arbitration of all federal securities law claims brought against the company. Yesterday, Corp Fin granted the company’s no-action request & permitted it to exclude the proposal from its proxy materials. The company is a New Jersey corporation, and sought to exclude the proposal on the grounds that its implementation would violate applicable state law.
New Jersey’s AG submitted a letter supporting that position – and this excerpt from the Corp Fin’s response letter indicates that it was dispositive:
When parties in a rule 14a-8(i)(2) matter have differing views about the application of state law, we consider authoritative views expressed by state officials. Here, the Attorney General of the State of New Jersey, the state’s chief legal officer, wrote a letter to the Division stating that “the Proposal, if adopted, would cause Johnson & Johnson to violate New Jersey state law.” We view this submission as a legally authoritative statement that we are not in a position to question.
Since the permissibility of mandatory arbitration bylaws is a “hot potato” political issue, the issuance of the no-action letter was accompanied by a lengthy statement from SEC Chair Jay Clayton clarifying exactly what the Staff was – and wasn’t – saying. In particular, he noted that Corp Fin was not addressing the permissibility of the proposed bylaw under federal law:
The staff of the Division of Corporation Finance explicitly noted that it was not expressing a view as to whether the proposal, if implemented, would cause the company to violate federal law. Since 2012, when this issue was last presented to staff in the Division of Corporation Finance in the context of a shareholder proposal, federal case law regarding mandatory arbitration has continued to evolve. Further, I am not aware of any circumstances where the Commission has weighed in on the legality of mandatory shareholder arbitration in the context of federal securities law.
Jay Clayton went on to say that he agreed with the Staff’s approach & would expect it to take a similar approach if the issue arose again. He also reiterated his prior statements to the effect that any policy decision should be made by the SEC in a measured and deliberative manner. The Staff earns some style points for the way it finessed the mandatory arbitration issue here – but credit New Jersey’s AG with a big-time assist.
The Weed Beat: Banking on Cannabis
As of the end of 2018, medical marijuana has been legalized in 33 states and its recreational use has been legalized in 10 states – but if you’re in the legal cannabis business, just try & take your money to the bank. Perhaps because Canada experienced a communist revolution shortly after it legalized marijuana, the drug remains illegal under U.S. federal law. That makes banks very skittish about getting anywhere near these businesses.
This Davis Polk memo reviews the current uncertainties that banks face when dealing with the cannabis industry and reviews 2 pieces of proposed legislation – the SAFE Act and the STATES Act – that would clarify the regulatory framework & make it easier for these businesses to establish banking relationships. This excerpt from the intro summarizes what the proposed statutes are intended to accomplish:
Neither bill would federally legalize cannabis or deschedule cannabis from Schedule 1 of the Controlled Substances Act (CSA). Instead, the bills would permit depository institutions, in the case of the SAFE Act, or financial institutions, in the case of the STATES Act, to provide financial services to cannabis-related businesses (CRBs) that comply with state laws regulating legalized cannabis-related activity. Both bills would benefit from changes that would take into account a broader range of financial services or the realities of possible diligence in the financial sector.
The feds aren’t the only ones trying to make cannabis companies more bankable – check out this recent blog from Keith Bishop about proposed California legislation that would permit the state to charter limited purpose “cannabis banks.”
Tomorrow’s Webcast: “Earnouts – Nuts & Bolts”
Tune in tomorrow for the DealLawyers.com webcast – “Earnouts: Nuts & Bolts” – to hear Pepper Hamilton’s Michael Friedman, Cravath’s Aaron Gruber, Fredrikson & Byron’s Sean Kearney and K&L Gates’ Jessica Pearlman – discuss the nuts & bolts of earnouts, and how to prevent this popular tool for bridging valuation gaps from becoming a post-closing albatross for your deal.
Effective shareholder engagement is becoming more essential every year. So, it’s helpful to find examples of companies that do it well & can provide insights into what investors regard as “best practices.” This recent “Corporate Secretary” article spotlights Hewlett Packard Enterprise’s efforts – which earned the company the award for “best shareholder engagement” at the magazine’s 2018 Corporate Governance Awards. Here’s an excerpt on the role directors play in HPE’s engagement efforts:
Directors have traditionally been averse to taking part in meetings with shareholders, but best practice now requires their involvement at some level. HPE’s engagement includes a three-month off-season board outreach program comprising one-on-one, on-site meetings between shareholders and directors.
During fiscal 2018, the company broadened these efforts to holders of more than 60 percent of HPE’s stock. Combined with the participation of investor advisory firms, the program engaged directly with holders or advisers of more than 55 percent of its common stock.
HPE is keen on providing direct shareholder access to the board so investors can hear directors’ thinking, and vice versa, without a management filter. The company’s engagement program includes the board chair, committee chairs and other directors that shareholders have a specific interest in meeting.
Engagement efforts extend to semi-annual customer meetings, in which directors often participate in panel discussions. Directors also frequently attend the company’s annual investor day presentation.
Conference Calls: Anatomy of a “Non-Answer”
One of the more interesting – and awkward – aspects of an earnings conference call occurs when an executive declines to answer an analyst’s question. This recent study reviewed situations in which company officials expressly declined to answer a question, and reached some interesting conclusions about when corporate officials were more – and less – likely to be forthcoming. Here’s an excerpt from the abstract:
Using our measure, about 11% of questions elicit non-answers, a rate that is stable over time and similar across industries. Consistent with extant theory, we find firms are less willing to disclose when competition is more intense, but more willing to disclose prior to raising capital. An important feature of our measure is that it yields several observations for each firm-quarter, which allows us to examine disclosure choice within a call as a function of properties of the question.
We find product-related questions are associated with non-answers, and this association is stronger when competition is more intense, suggesting product-related information has higher proprietary cost. While firms are more forthcoming prior to raising capital, the within-call analyses for future-performance-related questions shows firms are less likely to answer future-performance-related questions shortly before equity or debt offerings when legal liability is higher.
These results probably don’t come as a big surprise – and may even provide some comfort to lawyers that their guidance about the hazards of hyping future results when raising capital have been taken to heart.
But the study’s results suggest that the Securities Act’s liability scheme is a double-edged sword when it comes to corporate communications. Companies thinking about a deal are more willing to share historical information with the market – but more reticent to comment about the future.
Tomorrow’s Webcast: “How to Use Cryptocurrency as Compensation”
Tune in tomorrow for the CompensationStandards.com webcast — “How to Use Cryptocurrency as Compensation” — to hear Perkins Coie’s Wendy Moore and Morrison & Forester’s Ali Nardali and Fredo Silva discuss the groundswell in the use of cryptocurrency as compensation among private companies — and the legal framework that applies.
Whether he’s slamming financially engineered deals that leave employees holding the bag, calling out activist hedge funds, or skewering litigants with his caustic wit, Delaware’s Chief Justice Leo Strine never hesitates to “call ’em as he sees ’em” – and his recent essay bashing corporate political spending is no exception.
Strine’s essay calls into question the legitimacy of corporate political spending and says that the “Big 4” asset managers – BlackRock, Vanguard, State Street & Fidelity – have dropped the ball when it comes to their oversight responsibilities. He points out that the Big 4 are responsible for the investments of millions of American workers who have become “forced capitalists” in order to fund their retirement & their children’s education, and says that a docile approach when it comes to corporate political spending isn’t consistent with their obligations to these “Worker Investors.”
The Chief Justice doesn’t mince words when it comes to expressing his displeasure with this state of affairs:
The Big 4 continue to have a fiduciary blind spot: they let corporate management spend the Worker Investors’ entrusted capital for political purposes without constraint. The Big 4 abdicate in the area of political spending because they know that they do not have Worker Investors’ capital for political reasons and because the funds do not have legitimacy to speak for them politically. But mutual funds do not invest in public companies for political reasons, and public company management has no legitimacy to use corporate funds for political expression either. Thus, a “double legitimacy” problem infects corporate political spending.
The Chief Justice says that the Big 4 should push companies to implement a requirement that any corporate political spending to be authorized by a supermajority vote of the shareholders. He notes that this idea came from Vanguard founder Jack Bogle in the wake of Citizens United, and contends that this action is necessary if the Big 4 are to adequately represent the interests of Worker Investors:
It is not asking too much of the Big 4 to make sure that Worker Investors’ trapped capital is not used to tilt the playing field even more against ordinary, human Americans, to subject them to the huge costs that come when corporations influence regulatory policies to take shortcuts that hurt workers, consumers and the environment, and to shift the focus of corporate management away from legitimate, productive ways to generate sustainable wealth and toward
rent-seeking. By abdicating their duty to police political spending, the Big 4 has, in effect, enabled corporations to use Worker Investors’ capital for these purposes.
Investigations: Lookout, Here Comes Congress!
Speaking of politics, I think I read somewhere that Congress has broad investigative authority – and when it comes to investigations, this Paul Weiss memo says that companies shouldn’t ask for whom the bell tolls – because this year, it’s tolling for them:
Given the pent-up demand for House Democrats to make robust use of their oversight and investigative authorities, the current relative lull in congressional investigations of corporations is expected to end. Corporations across sectors should anticipate an uptick in investigative activity.
In addition to holding the majority for the first time in nearly a decade, this will be the first time that Democrats control the House since a 2015 rule change that empowered a number of committe chairs to subpoena witnesses or documents unilaterally. The chairs of the following committees, among others, have this authority: Energy and Commerce; Financial Services; Intelligence; Judiciary; Natural Resources; and Oversight and Government Reform.
The memo cautions that companies with ties to the Trump Administration or that have benefitted significantly from its initiatives may find themselves caught up in Congressional investigations, and offers tips for preparing to deal with Congressional scrutiny.
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