The FTC & SEC long ago bought into the concept of – with apologies to Snow White – “Whistleblowing While You Work” and implemented programs providing significant financial incentives for employees to blow the whistle on misconduct by their employers. Now the DOJ has joined the corporate whistleblower party. Here’s an excerpt from this Dentons memo:
Deputy Attorney General Lisa Monaco has announced a new Department of Justice (“DOJ”) program that will provide corporate whistleblowers with financial rewards. The pilot program, to be implemented later this year on a yet-to-be-announced date, will be designed to further incentivize the immediate report of corporate misconduct to the DOJ by providing whistleblowers with a portion of forfeitures resulting from their complaints. The pilot program is another step by the DOJ to encourage companies to invest in a culture of compliance and to report misconduct as soon as it is brought to the company’s attention.
One year ago, the Deputy Attorney General announced a focus on building robust Voluntary Self-Disclosure (“VSD”) programs designed to encourage corporations to immediately report misconduct, and has now turned to incentivizing individuals to come forward through the new pilot program. The DOJ has “recognized there’s another way we can encourage individuals to report misconduct: by rewarding whistleblowers. And how do we do that? Money,” said Monaco in a speech on Thursday.
The memo notes that unlike the SEC’s whistleblower program, the DOJ’s applies to non-public companies and extends beyond misconduct implicating the federal securities laws. The policy amps up the incentives for employees of private companies to report misconduct to the government and may help explain why those seven little guys seem so darn happy about going off to work in the morning.
While we’re on the topic of whistleblowers, this CLS Blue Sky blog from Ropes & Gray discusses the recent SCOTUS decision in Murray v. UBS Securities, LLC , in which the Court overturned a 2nd Circuit decision and held that “Sarbanes-Oxley does not include a retaliatory intent element, and that such requirement would be inconsistent with the statute’s burden-shifting framework.” This excerpt from the blog discusses its potential impact on whistleblower retaliation claims:
The Court’s opinion in Murray lowers the bar for plaintiffs asserting claims of whistleblower retaliation under Sarbanes-Oxley, which could embolden employees and change the settlement calculus in those cases. Proving the employer’s intent is often difficult, particularly when a number of factors and personnel can influence the termination decision. The more lenient “contributing factor” standard may increase litigation risk and reduce the likelihood of an early resolution.
The blog also says that the Murray decision highlights the fact that whistleblower protection laws encompass not only terminations but other unfavorable personnel actions as well, regardless of retaliatory intent.
Warrior Met Coal filed its definitive proxy materials last week, and they include not one, but FIVE separate shareholder proposals from the United Mine Workers of America. Since Rule 14a-8 limits a proponent to a single shareholder proposal, how did the union avoid this limitation? As this excerpt from Michael Levin’s article in The Activist Investor email newsletter explains, the UMW did it through the shrewd use of Rule 14a-4(c)(2):
SEC Rule 14a-4 prescribes how companies and activists solicit proxies from shareholders. Activists usually do so only when they compete for BoD seats. Yet, 14a-4 applies to shareholder proposals, too.
UMW will not rely on HCC to distribute proxy materials to shareholders for its five proposals. Instead, UMW will itself send those materials to shareholders. It drafted proxy materials with its case for the five proposals, filed them with the SEC, hired a vendor to collect proxies (apparently not a proxy solicitor, though), and will distribute proxy materials using notice-and-access. It committed to soliciting shareholders representing a majority of HCC voting power, pursuant to SEC rules (Rule 14a-4(c)(2)). It will then collect its own proxy cards from shareholders, counting votes itself. It estimates this effort will cost $15,000, not much at all.
Thus, shareholders submit proxy cards to UMW, instead of to HCC. Shareholders can also vote for incumbent directors and the routine HCC proposals (say-on-pay and auditor appointment) on the UMW card.
In order to appreciate what the UMW did, and the box it put the company in, a little explanation of Rule 14a-4(c)(2) is probably in order. That rule says that if a company receives timely notice of a shareholder proposal for its annual meeting, its proxy holders may exercise discretionary voting authority on that proposal if the company discloses the nature of the proposal and how its proxy holders intend to vote on it.
The rule goes on to say that the company can’t exercise this authority if the proponent tells it in writing that it intends to deliver proxy materials to the holders of enough shares to approve the proposal under applicable law. This statement has to appear in the proponent’s own proxy materials and the proponent must immediately inform the company when it has satisfied the rule’s minimum solicitation requirement.
Putting together a proxy statement and soliciting votes from a large percentage of the outstanding shares sounds like it might be expensive enough to deter most shareholders from using Rule 14a-4(c)(2), but in the age of notice & access, that cost is a lot more manageable. In fact, the UMW’s preliminary proxy statement discloses that it estimates the cost of its solicitation to be only approximately $15,000.
Now, here’s how the UMW compelled Warrior Met to include all of its proposals in the company’s own proxy materials. Although the UMW didn’t nominate any directors, as permitted by the universal proxy rules, it included the company’s slate on its own proxy card along with its five proposals. As Michael points out in his article, that decision made it more likely that shareholders would return the union’s proxy card, and if enough shareholders opted to return that card, the union could potentially control whether the company obtains a quorum for the meeting.
Since the company won’t have visibility into how many shareholders are returning the UMW’s card, it may not be in a position to know whether its quorum is in jeopardy or how many shares are being voted in favor of the shareholder proposals until late in the game. That put the company in a position where it needed to make it less likely that shareholders would return the UMW’s card, and the only way to do that was by including the union’s proposals in its own proxy materials.
The SEC pared back the requirements of its final disclosure rules pretty significantly from what it originally proposed, but that still doesn’t mean compliance with them is going to be easy or cheap. In particular, a recent WSJ article points out that pulling together SEC-ready Scope 1 & Scope 2 GHG disclosures isn’t going to be a small task, and that the attestation requirement is going to be pretty challenging & expensive when it kicks in:
The most challenging part of the rule for companies will likely be obtaining a high level of assurance on their Scope 1 and 2 greenhouse-gas emissions, Soter said. Some companies’ sustainability teams aren’t used to the level of regulatory scrutiny that financial-reporting personnel are, but both teams will need to jointly own climate data under the new rules, Soter said. The requirements could prompt companies to invest more in technology and seek consultants’ help to facilitate the review and strengthen their controls, he said.
“To get all the way up to reasonable assurance, I do think that’s going to be fairly daunting for teams that are going to need to do that,” Soter said.
Retaining an accounting or consulting firm to provide those verifications would be an additional cost for companies that aren’t already doing so, said Susan Mac Cormac, a partner at law firm Morrison & Foerster. “There’s a lot of evolution that has to happen there because it needs to be independent and third party.”
According to this Cornerstone Research report, SEC accounting and auditing enforcement actions were up 22% in fiscal 2023 (compared to an 8% increase in enforcement overall). Over the years, we’ve noted that the SEC’s enforcement activities tend to reach a crescendo as the end of its fiscal year approaches, and the report sure bears that out. Specifically, the report says:
More than half of all actions initiated in FY 2023 (44) were brought in the fourth quarter of the SEC’s fiscal year. The SEC initiated 28% of all actions in FY 2023 in September alone.
The data also supports another trend we’ve discussed — the focus on allegedly deficient internal controls or disclosure controls.
In FY 2023, 56% of actions alleged violations of internal accounting controls, up from 41% in FY 2021 and above the FY 2018-FY 2022 average of 47%. In FY 2023, 21 actions alleged violations of both internal accounting controls and disclosure controls and procedures, the highest level in recent years.
Shareholder proposals were submitted at a blistering pace during the 2023 proxy season and expectations are that this year will be even more active. With the SEC taking a decidedly pro-proponent stance when it comes to some of the key grounds traditionally relied upon by companies to exclude proposals, some companies are looking for alternatives to the no-action letter process to keep proposals out of their proxy materials.
ExxonMobil’s decision to a declaratory judgment action seeking to exclude certain shareholder proposals is the most notable recent effort to bypass the no-action process. However, a new law review article suggests another alternative. Here’s an excerpt from the abstract:
Today, activists pepper corporations with politically divisive proposals in record numbers. While left-leaning groups, organized under the ESG banner, target corporations with proposals focused on progressive priorities, right-leaning outfits submit competing proposals, seeking to undermine ESG initiatives and urging a focus on corporate profits. Caught in the crossfire are America’s largest businesses. Corporate leaders complain that these divisive proposals are costly distractions, and average investors have shown little enthusiasm for them.
This Article offers corporate America a path out of this morass. Under Delaware law, which governs most public companies, a corporation’s charter and bylaws represent a binding contract between the corporation and its shareholders. Moreover, Delaware law affords broad freedom in the corporate contract to regulate shareholders’ governance rights, including the right to make or vote upon a proposal at a shareholder meeting. And because a shareholder’s access to the Rule is itself dependent on these state-law rights, a provision in the corporate contract restricting shareholder proposals is not preempted by the Rule or the Exchange Act.
The author, Oregon Law School Prof. Mohsen Manesh, suggests the use of charter provisions to tighten shareholder eligibility requirements and enhance the grounds for excluding proposals. He acknowledges that some companies won’t want to take this path, due to the political backlash they’re likely to face from advocates of “shareholder democracy” (oy vey!), but says that others may find the ability to escape the SEC’s unpredictable no-action process in favor of the Delaware courts tempting.
A reader pointed me to this related CLS Blue Sky Blog post from Bernard Sharfman & James Copland titled “How to Reestablish the Authority of Corporate Law in the Shareholder Proposal Process.”
Many companies breathed a sigh of relief last year when the SEC’s stock repurchase disclosure rules were vacated by the 5th Circuit. But this Woodruff Sawyer blog provides a reminder that although the burdensome disclosure rules may be gone, when it comes to buybacks, the regulatory heat is still on.
The blog points to the SEC’s 2023 enforcement action against Charter Communications and its 2020 enforcement action against Andeavor LLC targeting alleged internal control shortcomings with respect to buyback programs. In order to avoid the problems that these companies ran into, the blog recommends that companies ensure that the people executing the plan understand the parameters authorized by the board & establish robust strategies for assessing whether the company is in possession of MNPI before entering the market. Here’s an excerpt from the blog’s discussion of this latter recommendation:
In the context of share buybacks, as noted above, the question is not whether one individual has MNPI—it’s about the company. An approach that some companies have implemented is having the company’s general counsel send an email to certain executive officers to confirm that the company is not in possession of MNPI before initiating a share buyback. The CEO, CFO, and treasurer should generally be included in the list of recipients, as well as others depending on the company. It may also be a good idea to consider sending a similar email (or better yet, a call) to the chair or the lead director of the board, as applicable. Lastly, before sending an email like this, it would be a good idea to socialize the purpose of the email and how it’s a critical element of the company’s internal controls and procedures.
The blog says that for recipients other than the CEO, CFO and treasurer, the company shouldn’t provide details beyond what is included in the email – the fact that the CEO & CFO are addressees should be enough to get their attention.
With the SEC’s adoption of its climate disclosure rules, many companies are now confronting the need to comply with a not entirely consistent set of climate disclosure obligations imposed by the EU, California, and the SEC. Since that’s the case, the question for many companies is – “Where do we start?” This Proskauer memo may not be a bad place.
The memo contains a chart the key requirements of the EU’s CSRD and California’s reporting regimes, and also lays out the disclosure requirements set forth in the SEC’s original proposal. Now, since Meredith did everybody a solid by cataloging what aspects of the SEC’s proposal didn’t make the cut in final regs, I think it’s a fairly easy matter to go through and cull those aspects from the chart when you are identifying what’s required. Once you’ve got the chart of requirements in front of you, the memo offers the following thoughts on next steps:
As an initial step, a scoping exercise is recommended to analyse carefully which parts of your group or entities may be subject to the California Rules, CSRD and the proposed SEC Rules, respectively. If there is actual or potential capture, the next step would be to understand when the reporting requirements apply. Following the scoping and timing assessment, an analysis of the content required to be reported on can begin with an evaluation of whether any existing sustainability reporting and underlying policies and processes can be utilized, particularly for the California Rules where there is the potential to rely on other national and international sustainability reporting obligations and requirements.
In particular, companies are recommended to develop or revisit existing compliance frameworks that support the calculation of their GHG emissions data in accordance with the GHG Protocol 5 and TCFD, as that component is unlikely to change even if the California Rules are to be amended, and also will be useful to leverage for any capture under CSRD and the SEC Rules.
While most of us were busy watching the SEC adopt climate disclosure rules, the PCAOB held its previously announced roundtable on its controversial NOCLAR proposal. According to a statement on the event issued by the Center for Audit Quality, it didn’t go very well:
Transparency and accountability are pillars of effective public policy development. Unfortunately, the roundtable that the PCAOB held this week on its proposal related to company noncompliance with laws and regulations (NOCLAR) failed to live up to these principles. Specifically, the roundtable failed to address the concerns outlined in 78% of the comment letters the PCAOB received, including from those investors, audit committee members, auditors, academics and others who are concerned with the PCAOB’s proposal.
“Today’s NOCLAR roundtable was a missed opportunity for the PCAOB to further understand the views highlighted in numerous comment letters from engaged stakeholders,” said Julie Bell Lindsay, Chief Executive Officer, CAQ. “Not only did the roundtable surface disagreement as to the actual scope or intention of the proposal, but we are concerned that the lack of diverse stakeholder representation – particularly from investors and audit committees, two important audiences – resulted in dialogue that did not meaningfully address stakeholder concerns. Given the discussion at the roundtable, we believe that the appropriate response is to re-propose the standard, with an economic analysis, to begin to address these concerns.”
If you don’t want to take the CAQ’s word for it, a replay of the roundtable is available on the PCAOB’s website.
We’ve previously blogged about the comments on the proposal from investor groups, representatives of the accounting profession and the ABA’s Business Law Section. While some investor groups are supportive of the proposal, the business community & the accounting and legal professions have a lot of concerns about its implications. Those concerns are shared by some key members of Congress, and this roundtable was held in response to pressure from lawmakers. As Liz blogged last month, the PCAOB also reopened the comment period through March 18, 2024, so stay tuned.
The SEC recently announced a settled enforcement action against Lordstown Motors arising out of the company’s alleged misstatements concerning the sales prospects for the company’s electric vehicles. At the same time, it also settled a companion proceeding involving the company’s former auditor, in which the SEC alleged that the auditor violated independence standards. Here’s an excerpt from the SEC’s press release:
The SEC also instituted a related, settled administrative proceeding against Lordstown’s former auditor, Clark Schaefer Hackett and Co. (CSH). CSH provided certain non-audit services, including bookkeeping and financial statement services, to Lordstown during CSH’s audit of the company’s financial statements when it was a private entity. CSH then audited the same financial statements in connection with Lordstown’s merger with the SPAC and thus violated auditor independence standards of the SEC and the Public Company Accounting Oversight Board. Without admitting or denying the SEC’s findings, CSH agreed to a censure, a cease-and-desist order, the payment of more than $80,000 in civil penalties, disgorgement, and interest, and certain undertakings to improve its policies and procedures.
Bass Berry’s blog on this proceeding notes that it serves as a reminder that the SEC is focused on enforcing the auditor independence requirements set forth Rule 2-01 of Reg S-X. The blog reviews the audit committee pre-approval requirements for permitted non-audit services and the list of prohibited non-audit services, and offers some suggestions on best practices that audit committees should consider adopting to ensure compliance with the rule’s requirements.
