As we blogged on several occasions last year, the issue of concurrent state jurisdiction over Securities Act claims is very much a live one, with the Supreme Court expected to weigh in on it later this term. However, it seems fair to say that state courts – particularly California state courts – have seen a booming business in Section 11 lawsuits in recent years.
In response, a number of IPO companies have adopted bylaws making federal courts the exclusive forum for Securities Act litigation – but this recent blog from Davis Polk’s Ning Chiu notes that this practice has recently been challenged in a declaratory judgment action filed in the Delaware Chancery Court. The lawsuit targets three companies – Snap, Roku & Stitch Fix – that have similar choice of forum bylaws. The plaintiff claims these bylaws don’t pass muster under Delaware law:
Plaintiff argues that the purpose of the forum provision is to regulate choice of venue in actions that do not assert internal corporate claims governed by Delaware law, or in the alternative, if claims under the Securities Act are internal corporate claims, then these forum provisions are inconsistent with the DGCL. The DGCL provides that, with respect to internal corporate claims, “no provision of the certificate of incorporation … may prohibit bringing such claims in the courts of this State.”
Ning points out that several California state courts have already invalidated this type of choice of forum bylaw. The D&O Diary has posted a copy of the declaratory judgment complaint in the Delaware action.
Enforcement: Assessing the Fallout from Kokesh
This Cleary blog looks at what’s transpired in the six months following the Supreme Court’s Kokesh decision – which said that SEC disgorgement claims were subject to a 5-year limitations period & may have raised questions about the agency’s authority to seek disgorgement in the first place.
So far, the SEC has been successful in fighting off claims directly challenging its authority to seek disgorgement, but the blog notes that the news hasn’t all been good for the SEC. A number of courts have been willing to at least acknowledge questions surrounding the SEC’s disgorgement authority, and other equitable remedies have come under fire because of Kokesh – including such enforcement mainstays as “obey-the-law” injunctions & industry bars.
And then, there’s the $15 billion question:
Most of the cases addressing Kokesh have involved SEC defendants arguing that the case limits the regulator’s use of disgorgement prospectively. However, this past fall private plaintiffs launched a much more aggressive salvo in the form of a class action arguing that certain historical awards are also at issue. Jalbert v. SEC, 17-cv-12103 (D. MA. Oct. 26, 2017), ECF. 1. The Jalbert plaintiffs argue that—because (1) the SEC can only collect penalties when specifically authorized by statute and (2) Kokesh held that disgorgement, which is not specifically authorized by statute, is a penalty—the SEC must return $14.9 billion in disgorgement that it has collected over the past six years.
Audit Committees: 3rd Party Risk Oversight
As part of their increasing emphasis on enterprise risk management, companies are paying closer attention to the risks posed to their business by vendors and other 3rd parties with whom they deal. This recent memo from the Audit Committee Leadership Network addresses the audit committee’s oversight role in addressing 3rd party risks.
Here’s an excerpt discussing some of the issues associated with outsourcing arrangements:
Outsourcing also opens the door to third‐party risk. Information technology, customer service, call centers, and human resources functions like benefits processing are not traditionally defined as part of the supply chain, but as these jobs and functions are outsourced, they become sources of third‐party risk, much like suppliers or distributors. In addition, shared technologies, such as cloud data storage, are necessitating new kinds of third‐party arrangements, with attendant risks.
Companies will frequently join forces to serve each other’s customers more effectively or to reach new customers. Examples of such arrangements include contracted ventures with marketing and cobranding partners and engagements with fee‐based service providers. When these arrangements require sharing sensitive data, they become a source of risk.
Specific risks associated with 3rd parties include cybersecurity risks, operational risks, & reputational risks. The memo discusses various approaches that companies take to managing 3rd party risks, as well as the methods used by boards to assess those risks.
Okay, so the United States of America is (mostly) closed for business – again. Here’s where the SEC stands, according to this announcement that it posted to its website on Friday:
Should there be a federal government shutdown after January 19, the SEC will remain open for a limited number of days, fully staffed and focused on the agency’s mission. Any changes to the SEC’s operational status will be announced here. In the event that the SEC does shut down, we will pursue the agency’s plan for operating during a shutdown. As that plan contemplates, we are currently making preparations for a potential shutdown with a focus on the market integrity and investor protection components of our mission.
So the SEC is open “as usual” for now. We don’t know how long is a “limited number of days” – but that doesn’t sound like a lot. As we blogged on Friday, once the SEC’s operations plan is implemented, there’s not much you’re going to be able to do other than make your Edgar filings. Check out this Cleary memo for more information on the shutdown’s implications for businesses dealing with the SEC & other federal agencies.
This is becoming Uncle Sam’s version of the movie “Groundhog Day” – only absent the laughs. . . Feel like a stroll down memory lane? Here is Broc’s very first shutdown blog from 2011.
Form 10-K: Technical Tips
For a lot of companies, it’s that time of year again – time to get to work on the Form 10-K. For those of you who find yourself in that position, this Gibson Dunn blog has some technical tips to keep in mind. Here’s an excerpt discussing the changes to the cover page, and noting that for some reason the revised form still isn’t on the SEC’s website:
As discussed in our blog post, in April 2017, the SEC adopted technical amendments to conform certain rules and forms to self-executing provisions of the Jumpstart Our Business Startups Act related to emerging growth companies (“EGCs”). The amendments modified the cover page of Form 10-K, along with the cover pages of various other forms including Form 10-Q, to include two additional checkboxes.
The first checkbox allows the company to indicate whether it is an EGC. The second checkbox allows the company to make an irrevocable election not to use the extended transition period for complying with new or revised accounting standards. The PDF of Form 10-K included in the SEC’s official forms list still does not reflect these revisions, so companies will need to look to the adopting release (or to their recently filed Forms 10-Q) to see how the 10-K cover page should be revised.
Corp Fin Reviewers: Tough Graders Lead to Better Reporting
This new study says that who you draw as the Corp Fin reviewer for your filings matters quite a bit – and that tough graders translate into better financial reporting. Here’s the abstract:
Using a sample of SEC comment letters, we show that SEC reviewers’ idiosyncratic style plays an economically and statistically significant role in explaining the cross-sectional variation in filing review outcomes, even after holding firm and disclosure attributes constant. We also show that the reviewer style is persistent across firms and time. Finally, we find that reviewers with a stricter style are associated with improved financial reporting quality. These findings suggest that individual SEC reviewers have significant influence on the SEC filing review process.
I’ll try to keep this in mind the next time I hit Amendment No. 5. . .
Congress is scrambling to avoid a government shutdown by the end of today – but the SEC’s contingency plans appear to be already in place. The SEC posted its “operations plan” for a government shutdown early last month.
As of right now, that plan is not featured on the SEC’s home page – nor is there word about how registration statements on the verge of being accelerated will be handled. The plan covers a total shutdown, not a partial shutdown if the SEC still has some funds available – which is what happened back in 2013 (also see this blog from back then).
There’s been no announcement as to potential timing – but if the SEC implements its plan, about 300 of the SEC’s 4600 staffers would keep on working. Edgar would remain operational, but it appears that most core Corp Fin operations would stop – including registration statement reviews. More to come…
Shareholder Proposals: “Lap Dog” Is In!
Here’s the intro from this blog by Cooley’s Cydney Posner: “From here on out, I guess you can count on seeing your directors described as “lap dogs” in some shareholder proposals or, more accurately, nascent or possible lap dogs. (That helps, doesn’t it?) That’s because, in three separate shareholder proposals submitted to The Boeing Company by three beneficial owners (all working through John Chevedden), the SEC refused to allow the company to exclude portions of the supporting statements that suggested that some of the company’s directors might be “lap dogs.”
Transcript: “The Latest – Your Upcoming Pay Ratio, Tax Reform & Proxy Disclosures”
We have posted the transcript for our recent CompensationStandards.com webcast: “The Latest: Your Upcoming Pay Ratio, Tax Reform & Proxy Disclosures.”
Earlier this week, BlackRock’s CEO Larry Fink sent his “annual letter to CEOs” of companies in BlackRock’s portfolio. This one’s pretty extraordinary – it makes it clear that as far as BlackRock’s concerned, from now on, doing well isn’t good enough:
Society increasingly is turning to the private sector and asking that companies respond to broader societal challenges. Indeed, the public expectations of your company have never been greater. Society is demanding that companies, both public and private, serve a social purpose. To prosper over time, every company must not only deliver financial performance, but also show how it makes a positive contribution to society. Companies must benefit all of their stakeholders, including shareholders, employees, customers, and the communities in which they operate.
Fink’s letter goes on to say that BlackRock intends to focus on whether companies are serving a social purpose in its engagement efforts. BlackRock expects each of the companies in which it invests to develop a strategic framework for long-term value creation – and that strategic framework must go beyond financial performance:
Your company’s strategy must articulate a path to achieve financial performance. To sustain that performance, however, you must also understand the societal impact of your business as well as the ways that broad, structural trends – from slow wage growth to rising automation to climate change – affect your potential for growth.
These comments are accompanied by a reminder that since BlackRock can’t dispose of shares in its index funds, “our responsibility to engage and vote is more important than ever.”
BlackRock’s new stance is sparking controversy – CNBC reports that investor Sam Zell called its action “extraordinarily hypocritical” and asked whether America was ready to have BlackRock “control the New York Stock Exchange.” Controversial or not, when the world’s biggest fund manager speaks, companies don’t have much choice but to listen.
Here’s a WSJ article, Davis Polk blog – and a Wachtell Lipton memo. Meanwhile, BlackRock hopes to increase the size of its “Investor Stewardship” team globally to over 60 by the end of 2020…
ICOs: “Mama Don’t Take My KodakCoin Awaaay . . .”
So, now Kodak is getting into the cryptocurrency business – because, well, why not? Unlike most of these coin deals, I can actually understand the concept behind this one. Here’s an excerpt from Kodak’s press release:
Utilizing blockchain technology, the KODAKOne platform will create an encrypted, digital ledger of rights ownership for photographers to register both new and archive work that they can then license within the platform. With KODAKCoin, participating photographers are invited to take part in a new economy for photography, receive payment for licensing their work immediately upon sale, and for both professional and amateur photographers, sell their work confidently on a secure blockchain platform.
Kodak is doing this deal on the up & up – it’s structured as a Rule 506(c) private placement, so there’s no attempt to make an end run around the federal securities laws.
Rochester’s my home town, and I’d dearly love to see our fallen giant hit this one out of the park. Unfortunately, while I was kind of intrigued by the concept, the reaction to Kodak’s announcement has been decidedly mixed. Naturally, the stock market loved it because Kodak used the magic word “blockchain” in its announcement – but other observers have been more skeptical. For instance, this article by Bloomberg’s Matt Levine says that there’s a lot less to KodakCoin than meets the eye. Here’s an excerpt:
Look: Kodak wants to run a web crawler and a central database of photographs. You don’t need to do that on the blockchain. It also wants to run a marketplace to match buyers and sellers of photographs. Again you don’t need to do that on the blockchain. You certainly don’t need your own currency to do that; lots of markets — the stock market, the supermarket, the existing market for photographic licensing — run on dollars, and what is convenient about dollars is that if you get dollars for licensing your photographs you can spend them at the supermarket.
The FT Alphaville blog was even more direct – and cutting – in its reaction to Kodak’s announcement:
Listen, a bunch of you out there have obviously programmed your algos to buy any stock that looks sideways at the words ‘blockchain’ or ‘cryptocurrency’. Please, stop it.
More on Our “Proxy Season Blog”
We continue to post new items regularly on our “Proxy Season Blog” for TheCorporateCounsel.net members. Members can sign up to get that blog pushed out to them via email whenever there is a new entry by simply inputting their email address on the left side of that blog. Here are some of the latest entries:
– More on “D&O Questionnaires: How to Address Board Diversity?”
– NYC Comptroller’s Office Counts on Active Shareholder Engagement
– A Checklist for Voluntary Filers
– The Acceleration of “Social Good” Campaigns?
– Shareholder Proposals: Companies Seek to Exclude Images
On Friday, the Supreme Court announced that it would hear a challenge to the SEC’s appointment of its administrative law judges. Here’s the intro from this Bloomberg article:
The U.S. Supreme Court will decide whether the SEC’s in-house judges were appointed in violation of the Constitution, agreeing to hear a case that could upend administrative hearing systems across the federal government. The move came at the request of the Trump administration, which switched sides in November and told the justices it would no longer defend the SEC’s system.
The dispute could affect more than 100 cases currently at the SEC, along with a dozen that are on appeal in the federal courts. It also could have ramifications for other government agencies, including the Federal Deposit Insurance Corp. and the Consumer Financial Protection Bureau, which have similar systems for appointing their administrative law judges.
As we blogged at the time, the Trump Administration’s decision to change the government’s position in this case led to the SEC’s reappointment of all its ALJs in an effort to cure any constitutional defects in the appointment process. Left unanswered for now is the question of the effect that a Supreme Court decision invalidating those prior appointments would have on previously adjudicated cases.
This D&O Diary blog has more details on the case and the issues involved – and says that the case is likely to be resolved during the current term.
SEC Updates “Enforcement Manual”
Recently, the SEC updated its “Enforcement Manual” – a great resource for those dealing with SEC enforcement investigations. And second only to our “SEC Enforcement Handbook” in that area.
Also, check out this new Cleary Gottlieb blog – “Cleary Enforcement Watch” – which covers global enforcement, white collar, and regulatory trends & developments.
We haven’t blogged much about FASB’s new lease accounting standard, but now that the new revenue recognition standard’s in place, here’s a reminder – the new lease standard will go into effect for fiscal years beginning after December 15, 2018.
With the deadline approaching, FASB recently issued an exposure draft of a new auditing standard update intended to ease the implementation process. According to FASB’s press release, the proposed ASU would:
– Add an option for transition to ASU No. 2016-02, Leases (Topic 842), that would permit an organization to apply the transition provisions of the new standard at its adoption date instead of at the earliest comparative period presented in its financial statements
– Add a practical expedient that would permit lessors to not separate nonlease components from the associated lease components if certain conditions are met. This practical expedient could be elected by class of underlying assets; if elected, certain disclosures would be required.
Yeah, I could pretend that I know what this means, but that wouldn’t be a smart play. Fortunately, there’s this Thompson Reuters article on FASB’s proposed action to help us all out. Comments on FASB’s exposure draft are due by February 5th.
The FASB lease accounting standard evolved over a period of years – but this recent blog from Steve Quinlivan says that another new standard designed to address “stranded tax effects” of the new tax reform legislation is being fast tracked. On second thought, since the proposed change has only a 15-day comment period, it might be more accurate to say that it’s being strapped to a rocket sled!
When Reg FD was adopted back in 2000, some predicted the death of the investor “one-on-one” – private meetings between investors and top corporate brass. That prediction turned out to be about as accurate as the one that said we’d all be flying our jetpacks to work by now.
Instead, these meetings remain common, particularly among companies seeking to raise their profile with investors. But now the smarty-pantses at Harvard Business School have published a new study that looks what gets asked at those meetings. While a lot of questions are pretty mundane – e.g. “what keeps you up at night?” – some clearly represent an effort to obtain more timely information about companies than what’s been publicly disclosed. Check out this excerpt:
The cash balance of the firm two months after the release of the quarterly report may be stale information. Understanding whether the firm has sufficient cash to continue operations may be salient for an investor’s investment decision so the investor will seek more timely information from management. From a regulatory perspective, timely questions appear to pose the greatest regulatory risk for managers in responding. Nonetheless, we find that most private interactions include at least one timely question posed to management.
Representative examples of timely questions include:
– “How much cash do you have now?”
– “Do you know additional sell side analysts that will be launching initiation reports?”
– “Are you done with recruitment or still enrolling?”
– “Are the Q2 earnings call expectations still valid?”
Management’s responses to any of these questions may raise Reg FD issues – and reaffirming quarterly guidance has been specifically flagged by the Staff as a problem under Reg FD. The study’s results suggest what many of us have long thought – that these private investor meetings are an FD compliance minefield.
Governance Survey: Silicon Valley v. S&P 100
The latest edition of Fenwick & West’s annual governance study surveys the governance practices of companies in the Silicon Valley 150 Index and compares them with those found at S&P 100 companies. Here are some of this year’s highlights:
– Adoption of dual-class voting stock structures has emerged as a recent clear trend among the mid-to-larger SV 150 companies. 11% of Silicon Valley companies surveyed had dual-class structures in 2017 compared to 9% of the S&P 100.
– Classified boards are now significantly more common among SV 150 companies than among S&P 100 companies. Compared to the prior year, classified boards remained fairly consistent, holding steady at slightly less than 7% for the top 15 companies in the SV 150 while the S&P 100 has been at 4% since 2016.
– Fewer Silicon Valley companies have adopted majority voting policies than their S&P 100 counterparts. Approximately 60% of the SV 150 companies have majority voting policies, compared with 97% of the S&P 100.
– 2017 continued the long-term trend in the SV 150 of increasing numbers of women directors and declining numbers of boards without women members. the rate of increase in women directors for SV 150 overall continues to be higher than among S&P 100 companies. When measured as a percentage of the total number of directors, the top 15 of the SV 150 now slightly exceed their S&P 100 peers (the top 15 averaged 25.4% women directors in the 2017 proxy season, compared to 23.9% in the S&P 100).
The study also addresses other governance metrics & tracks changes over time.
Buybacks: Primed for a Tax & Activist Driven Comeback?
I recently blogged about reports on the decline in stock buybacks during most of 2017. Well, it looks like those might come roaring back to life in the new year. This article from “TheStreet.com” says that stock buybacks will be driven by an increased ability to repatriate foreign cash – and pressure from activist hedge funds. Here’s an excerpt:
Activists typically pressure corporations with a lot of cash on their balance sheet to either spend it on the business, launch a big stock buyback program or issue a special dividend. In many cases, corporations have put their cash overseas to avoid U.S. taxes. However, the historic passage of a $1.5 trillion tax overhaul legislation is expected to change the calculus on off-shore cash, considering that a vital component of the package is a provision imposing a low 15.5% repatriation tax for money held offshore. Expect the rule to drive activist hedge funds to put new pressure on companies to repatriate cash, then distribute it to shareholders.
On the other hand, not everybody is buying into this narrative – this Bloomberg article suggests that most Wall Street analysts expect companies to use their tax windfall to increase their capital investments.
Here’s the results from our recent survey on director compensation in the wake of the 2015 Citrix decision:
1. When it comes to limits on our director pay:
– Yes, we have adopted limits since Citrix – 51%
– Yes, we had limits even before Citrix – 22%
– No, we don’t have limits – 26%
2. For those that have limits, our limits apply to:
– Cash only – 0%
– Equity only – 56%
– Both cash & equity – 44%
3. For those that have equity limits, our limits are based on:
– Dollar limit – 85%
– Share limit – 33%
4. For those that have limits, our limits are based on:
– Multiple of annual compensation – 35%
– Maximum number based on estimates of future compensation for a set period – 36%
– Other – 35%
5. For those that have limits, our limits are based on:
– Peer review – 43.6%
– What we could derive from the case law & settlements – 20.0%
– Our discretion – 58.2%
– Other – 16.4%
Privilege: “Oral Download” of Investigation Results to SEC May Waive Work-Product Protection
This Cleary memo addresses a recent decision by a Florida federal magistrate that could throw a monkey-wrench into a common method of informing the SEC’s Enforcement Division about information obtained in an internal investigation.
It’s not unusual for outside counsel retained to conduct that investigation to share factual information conveyed in witness interviews with the Division of Enforcement. That’s frequently done orally, and under the assumption that conveyance of this information won’t waive the protection of the attorney-work product doctrine for the underlying documentation of those interviews. The memo says this decision calls that assumption into question. Here’s the intro:
On December 5, 2017, Magistrate Judge Jonathan Goodman in the United States District Court for the Southern District of Florida held in SEC v. Herrera that the “oral download” of external counsel’s interview notes to the Securities and Exchange Commission (“SEC”) waived protection from disclosure under the attorney work product doctrine. In the same order, Magistrate Judge Goodman held that providing similar access to the client’s auditor did not result in a waiver.
As a result of the decision, the law firm was ordered to disclose to certain former employees of its client the interview notes that were orally conveyed to the SEC. The firm subsequently moved for clarification or reconsideration of the order – and an evidentiary hearing is scheduled for January 10th.
Coming Attractions: Securities Class Actions for Cyber Breaches
This Davis Polk memo says that securities class actions surrounding cybersecurity breaches are just a trickle now – but may soon become a wave:
The existence of securities fraud litigation following a cyber breach is, to some extent, not surprising. Lawyer-driven securities litigation often follows stock price declines, even declines that are ostensibly unrelated to any prior public disclosure by an issuer. Until recently, significant declines in stock price following disclosures of cyber breaches were rare. But that is changing. The recent securities fraud class actions brought against Yahoo! and Equifax demonstrate this point; in both of those cases, significant stock price declines followed the disclosure of the breach. Similar cases can be expected whenever stock price declines follow cyber breach disclosures.
The memo addresses emerging theories of liability in these cases & steps that companies can take to reduce their risk of a securities class action in the event of a cyber breach.
Last month, the WSJ published an investigative report that suggested that hundreds of corporate insiders frequently had uncanny timing when it came to gifts of company stock.
The WSJ examined 14,000 donations of stock to private foundations by insiders – and found that 3x as many were made before price declines of 25% or more than were made prior to comparably-sized price increases. It quoted a professor as saying that the chance that this kind of timing could result from random luck is “extremely small.” If luck’s not involved, what’s behind the fortuitous timing of these gifts? This excerpt speculates that this may be a case of old wine in new bottles:
Good luck or coincidence is one explanation for many of the well-timed stock gifts. Academic researchers say another possible explanation for some, given the outsize number of such gifts, is that some donors might be guided by inside information or backdating their stock gifts. Legal experts don’t agree on whether donating based on nonpublic information would be unlawful. Backdating a gift could be tax fraud, tax lawyers said.
When I first read this story, I thought the use of inside information was a more plausible explanation than backdating. Even after the Supreme Court’s decision in Salman, it’s not at all clear that a stock gift can give rise to insider trading liability. What’s more, some insider trading policies don’t apply to gifts of stock, it’s certainly plausible that insiders might capitalize on non-public information when it comes to gifting stock.
On the other hand, I was pretty skeptical about the idea that people are backdating gifts. I’ve been involved with a number of gifting situations involving insiders over the years – and large gifts usually involve pretty extensive planning by wealthy, well-advised individuals. So, I guess I wasn’t surprised that research showed that their timing is generally pretty good. But Broc reminded me that this is the kind of thing people said about options backdating a decade ago as well, so I did a little digging.
The most interesting thing I found was this study by an NYU professor referenced in the WSJ report. That study reached similar conclusions about the timing of CEO stock gifts almost a decade ago. It concluded that legal use of inside information could be part of the story, but also flagged evidence that strongly suggested that some insiders were backdating gifts as well:
Tests used to infer the backdating of executive stock option awards yield results consistent with the backdating of CEOs’ family foundation stock gifts. For instance, I find that the apparent timing of certain subsamples of family foundation stock gifts improves as a function of the elapsed time between the purported gift date and the date on which the required stock gift disclosure is filed by the donor with the SEC. This association between reporting lags and favorable gift timing does not hold for CEOs’ stock gifts to other recipients. Stock gifts of all types, including family foundation gifts, are also timed more favorably if they are larger and if they occur in months other than December, when many tax-driven charitable contributions ordinarily take place.
Ahem… well, it looks like my skepticism may just turn out to have been naivete. This could get interesting. . .
Insider Loans: SEC Brings a Rare Enforcement Proceeding
Since we’re sort of taking a stroll down memory lane today, I thought it was appropriate to flag this recent blog from Steve Quinlivan about a recent enforcement proceeding involving violations of Sarbanes-Oxley’s prohibition on loans to insiders. Here’s an excerpt summarizing the proceeding:
According to the SEC in an order settling an enforcement action, Alan Shortall was CEO and Chairman of Unilife Corporation, a Nasdaq listed issuer. According to the SEC, Shortall arranged for Unilife to make personal payments on his behalf aggregating approximately $340,000 over four years. The advances were outstanding for five to 36 days. According to the SEC, this violated provisions of the Sarbanes-Oxley Act which prohibits public companies from making loans to directors and executive officers, as codified in Section 13(k) of the Exchange Act.
In addition, an unnamed director of Unilife was going default on loans secured by a pledge of Unilife shares. Shortall agreed to arrange for Unilife to cover the loans. As Shortall understood Unilife could not loan money to the director, Shortall told the Chief Accounting Officer the loan was for the benefit of an external consultant. The SEC also found these transactions violated Section 13(k) of the Exchange Act.
Our more veteran readers may remember how much angst Sarbanes-Oxley’s prohibitions on loans to insiders caused at the time of their enactment. Interestingly though, it hasn’t resulted in a lot of enforcement activity. There may be a few others, but I’m only aware of one other enforcement proceeding dealing with loans to insiders – and that was way back in 2005.
First backdating & now loans to insiders – I think it may be time to get a MySpace account…
Audit Reports: PCAOB Staff Updates Guidance
I recently blogged about the PCAOB Staff’s implementation guidance on the new audit report regime. Last week, the Staff issued updated guidance providing additional information on determining auditor tenure – see page 4 of the updated document. We’re posting memos on the new audit report standard & the implementation guidance in our “Audit Reports” Practice Area.
– 37% of S&P 500 companies’ proxy statements present enhanced discussion of the audit committee’s considerations in recommending the appointment of the audit firm, up from 13% in 2014.
– 24% of mid-cap companies show enhanced discussion of the audit committee’s considerations in recommending the appointment of the audit firm (up from 10% in 2014) compared to 17% of small-cap companies (up from 8% in 2014).
– 38% of S&P 500 companies disclose criteria considered when evaluating the audit firm, a jump from 8% in 2014.
– 28% of mid-cap companies disclose criteria considered when evaluating the audit firm (up from 7% in 2014) compared to 27% of small-cap companies (up from 15% in 2014).
The report’s conclusions are consistent with the other studies on audit committee disclosure trends that we’ve blogged about in recent months. Investors want more information from audit committees – and audit committees seem to be responding.
Cannabizfile: “I’m From the Government, & Dave’s Not Here, Man”
California hasn’t always been recognized as a place that goes out of its way to attract new businesses – but this Keith Bishop blog flags a new state initiative trying to make life easier for one particular class of entrepreneur:
California Secretary of State Alex Padilla wants to help entrepreneurs in California by launching a new online business portal. According to Secretary of State’s press release, the new portal, coined “Cannabizfile”, provides useful information about cannabis-related business filings with the Secretary of State’s office. The Secretary of State has even published a public service announcement featuring actor Cheech Marin.
Casting Cheech Marin (of Cheech & Chong fame) in a PSA is inspired & shows a sense of humor that’s almost always lacking in government initiatives. The one disappointing aspect of the Cannabizfile website is that the FAQ section offers no insights into Dave’s whereabouts.
Our January Eminders is Posted!
We have posted the January issue of our complimentary monthly email newsletter. Sign up today to receive it by simply inputting your email address!
Many conservative groups have criticized federal agencies for allegedly using “guidance” as a substitute for the traditional “notice & comment” rulemaking process. In recent years, these complaints have gotten some traction in federal court & in Congress, but many agencies – including the SEC – continue to rely heavily on the use of guidance as part of their oversight activities.
That’s why this recent memo from Attorney General Jeff Sessions is big news – it basically says that the DOJ is out of the “rulemaking by guidance” business. Here’s an excerpt from the press release accompanying Sessions’ memo:
In the past, the Department of Justice and other agencies have blurred the distinction between regulations and guidance documents. Under the Attorney General’s memo, the Department may no longer issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch.
The press release says that the Attorney General’s Regulatory Reform Task Force will review existing DOJ documents and will recommend candidates for repeal or modification in the light of the memo’s principles.
It’s unknown whether the SEC or other agencies will feel compelled to follow the DOJ’s lead – but coming on the heels of the GAO’s recent decision that banking agencies’ leveraged lending guidelines were actually rulemaking subject to the Congressional Review Act, the AG’s action is another sign that agency guidance practices are being viewed with a jaundiced eye in DC.
Bye-Bye Buybacks? (Maybe Not)
Bad news for all you financial engineers out there – this WSJ article says that it looks like stock buybacks may be falling out of favor:
Companies in the S&P 500 are on pace to spend $500 billion this year on share buybacks, or about $125 billion a quarter, according to data from INTL FCStone. That is the least since 2012 and down from a quarterly average of $142 billion between 2014 and 2016.
Buybacks have been popular in recent years, in part because tepid economic growth limited perceived investment opportunities as well as expected returns on new plant and expanded operations. Adding to their appeal, repurchases can make shares more attractive to investors by lowering the share count and accordingly increasing earnings per share. The post crisis surge in buybacks has been frequently cited by stock-market bears as a sign that the market’s eight-year-long advance has been driven more by financial engineering than by long-term growth.
The article says that companies’ decisions to ease up on the throttle when it comes to buybacks are a result of an improving global economy, rising consumer & investor sentiment, and concerns about the staying power of this year’s stock market rally.
Wait a sec. . . According to this MarketWatch article, reports of buybacks’ demise may be greatly exaggerated. In fact, they appear to have exploded this month – perhaps hinting at what companies intend to do with the increased cash they expect to have on hand post-tax reform.
Bye-Bye CEOs? One in Three Gets Pushed Out
Earlier this year, I blogged about the research firm called “exechange” – and the “Push-out Score” model it uses to analyze the extent to which CEO departures were voluntary or involuntary. Based on the firm’s analysis of more than 200 changes in top management of public companies, a whole lot of CEOs are getting kicked to the curb. Here’s an excerpt from the firm’s recent study:
exechange uses a scoring system with a scale of 0 to 10 to determine the likelihood of a forced executive change. A Push- out Score of 0 indicates a completely voluntary management change, and a score of 10 indicates an overtly forced departure. The Push-out Score incorporates facts from company announcements and other publicly available data, including the age of the outgoing manager, time in office and share price performance. The system also interprets the sometimes-cryptic language in corporate communications, using a proprietary algorithm.
Around 36 percent of the Push-out Scores of CEO departures in the U.S. from the past 12 months reached values between 6 and 10, which suggest strong pressure on the outgoing CEO. Every third CEO in the U.S. steps down under pressure.
Mel Brooks’ version of Louis XVI said it was “good to be da King” – and a quick glance at any summary comp table says that there’s plenty of evidence for that. However, this report suggests that Shakespeare’s Henry IV also was on to something when he said, “uneasy lies the head that wears a crown.”
