It’s hard to imagine the government shutdown continuing for another 19 days – but this amended Form S-1 filed yesterday by Gossamer Bio does just that. Just like Corp Fin’s shutdown FAQ #5 instructs, the cover page sets the proposed offering price and says:
This registration statement shall hereafter become effective in accordance with the provisions of Section 8(a) of the Securities Act of 1933.
For those playing along at home, that means the effective date is scheduled for February 12th. The registration statement also includes this risk factor:
As a result of the shutdown of the federal government, we have determined to rely on Section 8(a) of the Securities Act to cause the registration statement of which this prospectus forms a part to become effective automatically. Our reliance on Section 8(a) could result in a number of adverse consequences, including the potential for a need for us to file a post-effective amendment and distribute an updated prospectus to investors, or a stop order issued preventing use of the registration statement, and a corresponding substantial stock price decline, litigation, reputational harm or other negative results.
The registration statement of which this prospectus forms a part is expected to become automatically effective by operation of Section 8(a) of the Securities Act on the 20th calendar day after the most recent amendment of the registration statement filed with the SEC, in lieu of the SEC declaring the registration statement effective following the completion of its review. Although our reliance on Section 8(a) does not relieve us and other parties from the responsibility for the adequacy and accuracy of the disclosure set forth in the registration statement and for ensuring that the registration statement complies with applicable requirements, use of Section 8(a) poses a risk that, after the date of this prospectus, we may be required to file a post-effective amendment to the registration statement and distribute an updated prospectus to investors, or otherwise abandon this offering, if changes to the information in this prospectus are required, or if a stop order under Section 8(d) of the Securities Act prevents continued use of the registration statement. These or similar events could cause the trading price of our common stock to decline substantially, result in securities class action or other litigation, and subject us to significant monetary damages, reputational harm and other negative results.
I blogged yesterday that Nasdaq wasn’t eager to allow listings for companies whose registration statements haven’t gone through full SEC review, and that was a barrier to going public right now even though the SEC is allowing companies to file registration statements without the delaying amendment. And while I continue to think that “eager” would be an overstatement, the WSJ later reported that the exchange is warming up to the workaround – especially for the handful of companies that have worked through pre-shutdown SEC comments. So, Gossamer and the other trailblazers are (cautiously) moving forward. No doubt they’re also considering how to pivot if the SEC returns to its full strength within the next couple weeks.
Last week, two of the world’s largest asset managers gave their annual “heads up” to companies about this year’s engagement priorities. This NYT write-up describes how BlackRock CEO Larry Fink exhorts CEOs to be “leaders in a divided world” – while Bloomberg’s Matt Levine wonders if Larry Fink is now the late-capitalist version of “president of the world.” But a takeaway for us governance people is that the leadership suggestions have a human capital tone – helping workers prepare for jobs of the future, as well as retirement.
BlackRock’s Investment Stewardship engagement priorities for 2019 are: governance, including your company’s approach to board diversity; corporate strategy and capital allocation; compensation that promotes long-termism; environmental risks and opportunities; and human capital management. These priorities reflect our commitment to engaging around issues that influence a company’s prospects not over the next quarter, but over the long horizons that our clients are planning for.
In these engagements, we do not focus on your day-to-day operations, but instead seek to understand your strategy for achieving long-term growth. … [W]e seek to understand how a company’s purpose informs its strategy and culture to underpin sustainable financial performance. Details on our approach to engaging on these issues can be found at BlackRock.com/purpose.
State Street’s Letter: “Culture Eats Strategy for Breakfast”
Not inconsistent with BlackRock’s asks, last week on our “Proxy Season Blog” I wrote that pension funds want to know about your culture. According to their annual letter, that topic is also pretty important to State Street. SSGA has created a framework to help boards align culture & strategy (see page 6) – and they’ll be asking these questions during engagements:
– Can the director(s) articulate the current corporate culture?
– What does the board value about the current culture? What does it see as strengths? How can the corporate culture improve?
– How is senior management influencing or effecting change in the corporate culture?
A few weeks ago, Broc blogged about how a government shutdown was gonna really disrupt the processing of no-action requests related to shareholder proposals if the shutdown went much longer. Now that the conjecture has become reality, we just fielded this question in our “Q&A Forum” (#9722):
We submitted a no-action request to the Staff to exclude a shareholder proposal made under Rule 14a-8 during the shutdown but obviously haven’t heard anything. Seems like we will be forced to include it as our date for providing the proponent our Statement in Opposition and eventual filing are coming up in a week or two. Any other thoughts, reasons we can exclude the proposal even if we don’t hear from the SEC?
My response was:
You might have seen this recent Reuters article – and this WSJ article. Here’s a quote from Ron Mueller in the WSJ article: “If the shutdown continues even after a company needs to send out its proxy statement to shareholders, the company could include proposals in the statements but not make them subject to a vote, saying it is awaiting a determination from the SEC, Mr. Mueller said. A company also can negotiate with shareholders who made a proposal, striking a deal that results in it withdrawing the SEC application and removing the proposal from the proxy in exchange for concessions.”
And Broc added:
This sure is interesting stuff since it’s novel. On page 41 of our “Shareholder Proposals Handbook,” there’s a section about exclusion without Staff relief. I talk about the risk of an SEC enforcement action – but I don’t know how high that risk would really be in these circumstances. Of course, it will depend on how strong your argument is that a proposal is excludable under one – or more – of the exclusion bases in Rule 14a-8. So I imagine companies might do some hard thinking and see how comfortable they are about exclusion without the no-action relief…
Removing the Delaying Amendment: Nasdaq Gets Nervous
As the shutdown drags on, we’ve blogged several times that removing the delaying amendment is really the only way to go effective with a registration statement right now. But that’s a big deviation from standard practice – and this WSJ article reports that (not surprisingly) it’s making banks & exchanges nervous. Here’s an excerpt:
But the Nasdaq Stock Market, where both companies are aiming to list, has balked at firms using the method over worries that such deals could be vulnerable to regulatory or legal challenge later on, according to people familiar with the matter. Still, the exchange hasn’t ruled it out in certain cases, one of the people said. Some bankers have also been wary of such deals.
Proceeding without Corp Fin’s signoff could carry substantive risk, some bankers and lawyers say. If the IPO disclosures given to investors are later shown to have shortcomings, plaintiffs’ lawyers could pounce and point to the unusual way the deals were done.
Another downside to the automatic route is companies would need to price their stock at least 20 days in advance of trading, whereas in a traditional IPO the price is set the day before trading begins. Bankers worry the price might become stale as economic crosswinds or other factors could affect demand for the offering.
Against my better judgment, I read some of the comments on that WSJ article. Here’s a taste:
Capitalists do not need government bureaucrats to raise capital. Abolish the SEC and let markets work.
Point taken that companies have been moving away from traditional IPOs – and this Matt Levine blog imagines a functioning world in which the SEC is accidentally no longer involved in that process…
How the Shutdown Impacts the SEC’s Enforcement Program
Check out this piece from John Reed Stark about how the government shutdown impacts the SEC’s enforcement program…
Tune in today for the webcast — “12 Tricks to Help You During Proxy Season” — to hear Aon’s Karla Bos, Intel’s Irving Gomez, Gibson Dunn’s Beth Ising and Microsoft’s Peter Kraus share practical advice on how to enhance your proxy season efforts without sacrificing your sanity. The agenda includes:
1. Organize & Draft Your Proxy In the Way That Makes Sense This Year
2. When Developing Your Engagement Strategy, Consider the SEC’s “Rules of Engagement”
3. Keep a Hard Copy of Your Proxy on Your Desk for Note-Taking
4. “Tell It Like It Is” – And Don’t Save “Board Responsiveness” for Low Vote Results
5. Negotiating PR Aspects of Shareholder Proposal Withdrawals
6. Three “Forget-Me-Nots” When Presenting Shareholder Proposals (And Your Response) in the Proxy
7. Capitalize on Your 10-K
8. Get Outside Help, But Don’t Outsource to Excess
9. Use Graphics & Formatting in a Productive Way
10. Proxy Review: Use Fresh Eyes, Particularly for Quality Assurance
11. Watch Those Shareholder Proposal & Nomination Deadlines
12. Call the Experts to Assist with Shareholder Proposals
13. Engage, But Don’t Count on It to “Carry the Day”
14. Shareholder Engagement: Develop Relationships Before You Need Them
Insider Trading: House Bill Targets 10b5-1 Plans
Last week, the House Committee on Financial Services re-introduced a bill on a bipartisan basis – the “Promoting Transparent Standards for Corporate Insiders Act” – which would require the SEC to study whether Rule 10b5-1 should be amended to add more procedural restrictions for trading plans. The potential amendments would:
– Limit the ability of companies & insiders to adopt a trading plan to a time when the company or insider is permitted to buy or sell securities during issuer-adopted trading windows
– Limit the ability of companies and insiders to adopt multiple trading plans
– Establish a mandatory delay between the adoption of a trading plan and the execution of the first trade under the plan (and if so, whether the delay should be the same for plans adopted during versus outside a trading window, and whether any exceptions to a delay are appropriate)
– Limit the frequency with which companies and insiders may modify or cancel trading plans
– Require companies and insiders to file trading plan adoptions, amendments, terminations and transactions with the SEC
– Require boards of companies to adopt policies covering trading plans, periodically monitor trading plan transactions and ensure that company policies discuss trading plan use in the context of hedging policies and stock ownership guidelines
SEC Commissioner Nominee: Stalled Due to Shutdown
Since Kara Stein’s holdover term expired last month, we’re once again down to four Commissioners. Broc’s blogged about nomination delays becoming more common – and it looks like this go-round will follow suit. As this WSJ article reports, the government shutdown is taking the blame this year. Here’s an excerpt:
Mr. Schumer recommended [several months ago] the White House nominate former SEC staffer Allison Lee to fill a vacancy on the commission left by the recent departure of Kara Stein, the people familiar with the matter said. Ms. Lee, who formerly served as an aide to Ms. Stein, also worked as an attorney in the SEC’s enforcement division for over a decade before retiring from the commission last January, according to her profile on LinkedIn.
Some Democrats also are worried the White House is purposely slow-walking liberal nominees to the positions, particularly Ms. Lee, whose name has been pending with the Trump administration for several months. Republican policy makers maintain the shutdown has stretched staff thin within the executive branch [straining its ability to do background checks and other necessary paperwork].
We blogged several weeks ago about a scheduled open Commission meeting to consider a “request for comment” on the nature & content of quarterly reports & earnings releases. That meeting was cancelled due to President George H.W. Bush’s funeral. Yesterday, the SEC posted this Sunshine Act notice for the rescheduled meeting, to be held next Wednesday – December 19th. And at this meeting, the SEC will also consider adopting the long-pending hedging rules – as required by Section 955 of Dodd-Frank…
“Human Rights” Due Diligence
A growing number of investors are starting to ask companies how they manage human rights risks – but it’s a difficult thing to get your arms around. A recent report from the “UN Working Group on Business & Human Rights” says that the best thing to do is to just get started with the four-step diligence process (as outlined in this “Executive Summary”).
This 27-page annex provides a deeper dive on tools & resources, based on “lessons learned” from early adopters. Here’s an excerpt:
Enterprises should begin to consider the risks of adverse human rights impacts associated with the sector (or sectors) in which the enterprise is operating. For instance, the extractive sector must consider the human rights in communities affected by their projects, the garment sector must consider supply chain labour practices, and the information technology sector must consider the human rights affected when privacy is not adequately protected.
These examples are only some of the risks that are obvious in these sectors. Sector risks will be associated by the nature of the products and production processes as well as with the way the sector is organized. Some risks are common to almost all sectors. As part of the identification process, the enterprise should go through the list of internationally-recognized human rights.
Trading Suspensions: The Shareholder Perspective
This MarketWatch article looks at the consequences that shareholders face when a company’s stock is suspended or delisted – and follows the journey of one company, along with its shareholders and plaintiffs’ lawyers. Here’s the intro (and find more guidance on this topic in our “Delistings/Trading Suspensions” Practice Area):
You’re a thrill seeker, trading in highflying cannabis and crypto stocks, but you think you can get out any time. Suddenly there’s news of an unexpected trading stop or suspension and delisting by an exchange or by the Securities and Exchange Commission. Is all lost?
Unfortunately, according to the SEC, that may be the case. If there’s no exchange to trade that hot stock, the shares may become worthless, the SEC warns in an Investor Bulletin about the consequences of trading suspensions.
Earlier this year, Broc blogged about Bank of America’s campaign to increase retail voting – they were donating $1 to Habitat for Humanity for every shareholder account that votes and also featuring online director interviews. This issue of Carl Hagberg’s “Shareholder Service Optimizer” reports that the effort was a resounding success – a 41% increase in voters (on top of an 8% increase last year) and over $900k donated. And importantly, a 4% increase in pro-management votes – this can make a big difference, especially for say-on-pay. Here’s how BofA maximized its results:
– First and foremost is the marketing truism that to get results you need to “repeat, repeat and repeat” your message.
– Equally important, you need to position your messages prominently – so they will be noticed right off the bat. BofA did a masterful job of this last year with its inaugural “Special Olympics” campaign. And this year, the message was even more prominently and frequently displayed. It was the very first – and very attention-getting – thing that shareholders saw when they received & opened the proxy package.
– Of course, the message needs to be a compelling one. Here, BofA hit a bases-loaded home run by choosing excellent and non-controversial charities last year & this year.
– Most compelling, however, were the attention-getting numbers: BofA was able to report that $650,000 had been donated to the Special Olympics last year – and that, we think, was a major motivating factor behind the huge number of new people who got on the bandwagon this year. (Next year, a $1 million goal will keep voters on the ranch – and will generate a lot more new participation, we feel certain.)
Carl also notes that BofA worked to increase the always hard-to-get “Employee Plan” votes. Not only did they post an educational video and email voting reminders, but they created a single “landing platform” for all employee plan accounts. The platform allowed employees to vote all of their positions through a single set of voting actions.
Mobile-Friendly Director Interviews: Another Vote-Getter
Another article from Carl Hagberg’s “Shareholder Service Optimizer” also speculates that BofA’s online director interviews contributed to the company’s massive increase in retail voting. The link was appended to all of the e-deliveries & employee outreach materials – and was posted on the voting sites.
Carl’s hypothesis is borne out by the fact that the “Meet the Board” feature is the most-visited content page for mobile-friendly proxies at EZOnlineDocuments. We’ve blogged before about EZOnline’s work – and Carl notes that he was “absolutely bowled-over” by a recent product demo. Here’s more:
Particularly for retail investors, having an interactive, web- and mobile-friendly proxy statement makes it easier to read, search and actually digest the content – better than anything else we have seen. We urge you to visit www.ezonlinedocuments.com and to zero-in on the “Clients” tab for a quick and easy-to-absorb look at how it works for clients like Coca-Cola, Mastercard, Xcel Energy and others.
Transcript: “This Is It! M&A Nuggets”
We have posted the transcript for the recent DealLawyers.com webcast: “This Is It! M&A Nuggets.”
In connection with yesterday’s AICPA conference, SEC Chief Accountant Wes Bricker provided this statement on financial reporting & auditing issues that he’s been discussing with SEC Chair Jay Clayton and others. As you’d expect, a lot of the statement is aimed toward auditors – e.g. what they should be doing to improve quality. But the statement also emphasizes the role of companies in the financial reporting process – with plenty of recommendations for audit committees and management:
– Internal controls – particularly where there are close calls as to a significant deficiency or material weakness, audit committees should pay extra attention to the adequacy of & basis for the company’s ICFR assessment, and seek training if necessary (citing this enforcement action). It’s vital to focus not just on actual misstatements but also whether it’s reasonably possible that a material misstatement won’t be prevented or detected in a timely manner.
Also remember that it’s the company’s responsibility to develop, maintain & assess ICFR – and that the thresholds for auditor attestation don’t change these requirements (it’s not obvious whether this remark is intended to foreshadow a change to the attestation requirement, which was discussed as a future possibility when the SEC increased the smaller reporting company threshold and in today’s Senate testimony by SEC Chair Jay Clayton). This blog from Cooley’s Cydney Posner reports that several members of the OCA Staff also discussed internal controls issues at yesterday’s AICPA Conference – with tips on how to assess controls and how to adequately disclose a material weakness.
– CAMs – conduct a “dry run” so that the auditors & audit committee can discuss issues. It’s also important to understand that CAMs aren’t intended to duplicate management’s MD&A disclosure of critical accounting estimates.
– Continuing education for audit committees – audit committee members must have time, commitment and experience to do the job well. Just possessing financial literacy may not be enough to understand the financial reporting requirements fully or to challenge senior management on major, complex decisions. Audit committees must stay abreast of these issues through adequate, tailored, and ongoing education.
– Audit committee agendas – must be balanced toward understanding accounting, ICFR and reporting requirements. For example, as business, technology, accounting, and reporting requirements change, it is crucial that the audit committee understand management’s approach for designing and maintaining effective internal controls.
– Voluntary disclosure – OCA Staff encourages audit committees for listed public companies of all sizes to communicate how the listing requirements related to the “appointment, compensation, and oversight of the work of any registered public accounting firm. . .” are carried out, especially among smaller companies. There are positive disclosure trends among S&P 1500 companies when it comes to disclosing considerations in appointing the audit firm, fee negotiations and evaluations – but there are opportunities for more progress among mid- and small-cap companies.
– Company processes to ensure auditor independence – emphasizing the role of companies to promote compliance by regularly monitoring corporate structural changes or other operational events that may result in new affiliates or business relationships and timely communicating these changes to the auditor, as well as evaluating the sufficiency of these monitoring processes & practices. Also note that the OCA Staff is assessing comments on the auditor independence “loan” rule – final rulemaking is expected in 2019.
– Auditor communications – to enhance oversight, audit committees should consider requesting additional voluntary information from the auditor to understand their level of investment in quality control functions, the connection of technology to audit quality and how audit firm performance compares to others.
– New GAAP standards – continue to focus on implementing & refining compliance with new standards on revenue recognition, leases & current expected credit losses
“Accredited Investor” Verification: SEC Enforcement is Watching
Last week, the SEC issued a cease-and-desist order against CoinAlpha Advisors for a Reg D offering gone wrong – which shows that Enforcement will take issue with relying on self-completed questionnaires to verify accredited investor status under Rule 506(c). Here’s an excerpt from Steve Quinlivan’s blog:
The SEC alleged CoinAlpha did not have pre-existing substantive relationships with nine of the fund’s investors and engaged in a general solicitation of public interest in the securities offering through CoinAlpha’s website, which was generally accessible without password protection. Additionally, CoinAlpha engaged in general solicitation through blog postings, and media interviews and digital asset and blockchain conferences, accessible both via live attendance and through the Internet. Despite collecting accredited investor questionnaires and representations from investors certifying to their accredited investor status, Respondent did not take reasonable steps to verify that investors in the Fund were accredited investors.
During the subsequent SEC investigation, CoinAlpha retained a third party who determined that all 22 investors were accredited investors.
The SEC found CoinAlpha engaged in an unregistered public offering. CoinAlpha did not admit or deny the SEC’s findings.
– What led you to write “The Governance Revolution”?
– What are the most important messages in the book?
– When it comes to some of the hazards of the board process, what is “The State Dinner” all about?
– What about “Bullying”?
– What has been the biggest surprise for you in reaction to the book?
Mock me all you want, but before I had kids I was a fanatic for live music of all genres – and watching Snoop Dogg in the pouring rain at an “indie” rap festival stands out as one of the most memorable performances I’ve seen. And since one of my other hobbies is cooking, my worlds collided when I read this Bloomberg article about Snoop’s new 192-page cookbook – “From Crook to Cook.”
Apparently, the compilation has all the (cannabis-free) edibles you need for a solid Thanksgiving…and lots more. Snoop is probably picking up some of Martha Stewart’s cooking game, now that they have an (Emmy-nominated!?) VH1 show together – but no doubt his creations have some special twists. If anyone out there actually buys this book and tries a recipe, please let me know how it is. I’m already intrigued by this concept for sweet potato pie, as described by Bloomberg:
“These days everyone is into pumpkin spice, but I skip the pumpkin—sweet potato pie is a real ’hood staple and Broadus family favorite. [Pop-culture fact: Snoop was born Calvin Cordozar Broadus.] A little orange makes the sweet potato flavor stronger, and that’s what you’re here for, right?”
Nearly 30% of companies highlight quantitative information at the top of their earnings release – and after writing my fair share of headlines, I can understand why! Numbers are succinct, eye-catching, and (presumably) accurate. But a recent study shows that this practice may lead to some pretty big swings in stock price – and might foreshadow lower earnings over the long-term. This article summarizes the findings – here’s an excerpt:
The study of more than 17,000 earnings releases over an 11-year period finds that increasing headline salience (for example, when earnings exceed forecasts, headlining by how much), gives a hefty lift to a firm’s stock price beyond the rise that is normally occasioned by good news. On average, adding one strong performance number to a headline increases a results-inspired boost by an extra one third in the three-day period around the announcement.
Citing psychology research, the professors see this extra boost as due to the effectiveness of headline numbers in attracting investor attention. In addition, “an initial favorable impression can lead investors to underweight contradictory information elsewhere in the report.”
But investors beware: after a quick stock-price lift, salience likely portends a considerable reversal over the 60 days following the earnings announcement, a reversal greater than the initial boost that the salience bestowed. In other words, as the professors write, “investors not only undo their initial reaction due to salient headlines but even revise their beliefs in the opposite direction in the subsequent period.” In sum, “headlining quantitative information incites investor overreaction to the earnings news at the time of the earnings announcement…This suggests that headline salience misleads investors.”
And here are some other interesting takeaways:
– Companies that flaunt strong current results in headlines tend to have lower long-term earnings (beyond the current quarter)
– High salience is strongly correlated with increased insider stock sales in the month following earnings announcements and also with the recent vesting of executives’ stock
– Both 3-day stock returns and 60-day reversals increased with greater headline salience, both being higher as the number of headline statistics increased (for example, from zero to one or from one to two).
– While headline salience is effective when earnings exceed analyst forecasts, that is not the case when they do not. In other words, greater salience does not spur investor interest when earnings barely meet or fall short of predictions.
– Headlined earnings numbers have more effect when expressed as percentages than when stated in dollars.
Farewell to Penny Stocks?
I mentioned in a blog last month that there are an estimated 10k publicly-traded microcaps – but most aren’t listed on an exchange (h/t to Adam Epstein for that stat). But we might see a decline in those numbers if the secondary market evaporates – and there are signs that it’s heading in that direction. Here’s the intro from this Forbes op-ed by Richard Levick:
An event that rather significantly affects the financial markets has just occurred without much if any fanfare in the financial press. Bank of America’s Merrill Lynch announced that, as of September 30, it will not allow clients to sell microcap stocks, known as penny stocks, without a regulatory review and will outright ban sales of the riskiest ones. The bank had already discontinued purchases in July.
If enough other financial institutions follow suit, the penny stock market could disappear altogether. As of this writing, Morgan Stanley and UBS have not followed Merrill’s lead, according to sources cited by CNBC reports, but investors sense a chill wind has begun to blow. Shares from companies valued under $300 million and traded for under $5 on an over-the-counter market are the ones affected – in other words, virtually the entire microcap market.
Since I was in Washington DC for the Fall Meeting of the ABA Business Law Section, I thought I’d arrive a day early to attend the SEC’s “Proxy Process Roundtable.” Broc encouraged me to share the “look & feel” of the experience for those that have never visited the Mothership. So here’s eight interesting things that I noticed:
1. Lots of Speakers on Panels – There were three panels for the roundtable – each scheduled for 90 minutes. One panel had 10 speakers, another had 11 – and one had 14! That one ended up running over two hours – and one of the panelists didn’t even get to introduce himself till the very end. For comparison, we’re setting the agendas right now for next year’s “Women’s 100” events – and we have 9 speakers for all of our panels for an entire day.
In some cases, it was hard to get a good feel for a speaker’s views & ideas because their speaking time was limited (but some panelists definitely didn’t let that stop them!) – and as a listener it was hard sometimes to stay focused for such a long discussion, with no audience interaction. This is what a 14-speaker panel looks like – a total of 21 people up on the dais with all the SEC officials…
2. Short Opening Remarks – Chair Clayton limited his opening remarks to allow more time for the panelists to share their views. Remarks from Commissioner Stein, as well as Commissioner Roisman and Corp Fin Director Bill Hinman, were also very brief. In fact, the first panel started about 30 minutes early! Bill did take a moment to pay tribute to Evelyn Y. Davis, though.
3. Surprising In-Person Turnout – Broc warned me that the roundtable might be lightly attended. He said that in the old days, the SEC’s open Commission meetings & roundtables were well-attended. But now that they are webcast, people understandably watch online. So it was surprising to see that more than a hundred people were there in person, despite DC having the worst November snowstorm in 29 years. Here’s a picture of what the audience looked like.
4. NAM/Chamber’s Campaign Encouraged Attendance – Recently, the National Association of Manufacturers & the US Chamber have been running ads against proxy advisors – including full-page spreads in the WSJ and Washington Post. They’ve spent six figures on their media campaign! Here’s what the ads looked like. As part of this campaign, the groups operate ProxyReforms.com – a site that had been encouraging folks to attend the last panel of the day (the one about proxy advisors).
5. Minor Infotainment (for a Conference) – Although not as riveting perhaps as “Bodyguard” (new Netflix series that Broc recommends; I haven’t seen it), the panels tended to be more entertaining than a typical conference panel. There were speakers on all sides of the issues & sparks flew on more than one occasion.
Chair Clayton, the Commissioners & Corp Fin Staff emphasized throughout the day that they were hoping to get some specific recommendations. A surprising number of panelists thought the shareholder proposal rules and proxy advisor framework is okay ‘as-is.’
This wasn’t everyone’s view (tended to be people who could be disadvantaged if the rules change, though not in every case) – and there were calls for targeted improvements like giving all companies some time to respond to voting reports before they’re public and some tweaks to the proposal submission thresholds. But when it came to proxy plumbing, there were more calls for change – maybe even a total overhaul. Even speakers that weren’t on that panel said they thought that’s where the SEC should focus its time & resources.
6. A Tweet War? – Recently, John blogged about “Tweet Fight! Nell Minow v. Main Street Investors Coalition.” For this roundtable, there was some live tweeting from the audience under #proxyroundtable – with most of the tweets coming from opposite ends of the spectrum: Main Street Investors Coalition v. ValueEdge Advisors (for whom Nell Minow is a part of) – as well as Minerva Analytics and others.
7. Going Through Security – Broc also shared stories about the old days & how visitors to the SEC used to be able to go upstairs and deliver packages, etc. without even checking in. Now, he warned me to go early, because you need to get a badge & go through a metal detector. They were efficient – but with the large attendance, I’m pretty sure it took me longer than airport security! In the morning line, I happened to befriend a fellow Minnesotan. And it was in the after-lunch line that I learned of the Main Street Investors Coalition’s ad campaign. So it wasn’t time wasted.
8. DC is Magical? – The night before the roundtable, Broc picked me up at the airport and we grabbed dinner at “The Wonderland Ballroom.” We soon met Frank Namin – who saddled up next to us and seemed to be this establishment’s resident magician. We had close-up seats as he fashioned a rose from a cocktail napkin – then levitated it (seriously, it levitated one foot away from us – just stayed floating in the air!) – along with many other illusions. Free entertainment! And nearly as exciting as that “Proxy Advisors” panel…
Broc’s Take: The Proxy Process Roundtable Might Not Mean Much
Broc’s ten cents on this topic is that it’s akin to oral arguments during a Supreme Court case. Broc believes that oral arguments don’t have a major impact how the SCOTUS Justices intend to vote except in rare instances (this study seems to argue otherwise). Broc doesn’t believe the roundtables really mean much – particularly with so many people on each panel. He recalls only one notable instance where a roundtable was truly worth listening too – when Evelyn Y. Davis was on a shareholder proposal roundtable in the early 2000s. Evelyn put on quite a show.
Broc feels there is some value to roundtables. The speakers can connect with each other. And even more importantly, the SEC Commissioners can get a sense of what each speaker is all about – and figure out which ones they might want to contact privately to learn more about a particular idea. But remember, we did this entire “song & dance” over a decade ago with “proxy plumbing” – with a roundtable & everything – and not much came out of that. But maybe this time will be different…
Poll: Will the Proxy Process Roundtable Mean Anything?
Let us know how you feel about the impact of the SEC’s roundtables in this anonymous poll:
Recently, I paid a visit to my old firm (Fredrikson & Byron) to interview my former colleague Zach Olson, a partner in the M&A group – about his side gig as a professional wrestler. You may have seen John’s blog about Zach’s bold adventures on “The Mentor Blog,” but I wanted to get more info about this unique endeavor – and how a deal lawyer has time (and nerve) for it.
In our 19-minute podcast, Zach confirmed my suspicion that he’ll dive into just about anything he thinks is remotely interesting. We also covered:
– How do you think your skills as a lawyer help you in the ring?
– How do you think your skills as a wrestler help you in negotiations/practicing?
– What’s been the most surprising thing about wrestling since you started?
– What’s the most common question people ask you?
MSCI Plans to Launch New “Dual-Class” Indexes
I have to say, MSCI strikes me as the “middle child” of stock indexes. “Dual-class” (or more) share structures have been a hot-button issue, especially since Snap’s IPO. Unlike FTSE Russell & S&P Dow Jones – which both quickly announced last August that they’d exclude companies with unequal voting rights – MSCI took 18 months to gather everyone’s opinions. And as I’ve blogged, it turns out that institutional investors are more interested in a regulatory fix that encourages equal voting structures, versus restrictions by indexes. So recently, MSCI announced a compromise that’s intended to satisfy everyone.
As described in this WSJ article, in early 2019, MSCI will launch a new suite of market indexes that exclude companies with unequal voting structures. They’ll be an addition to MSCI’s existing indexes, which will continue to include broader investment alternatives. Here’s what MSCI says about its solution (also see this Davis Polk blog – and this “Money Stuff” column that questions the impact of choices like this on so-called “passive” investors):
MSCI supports fully the one share one vote principle as we believe that having equal voting rights should be an important consideration in equity investing. The one share one vote principle has also gathered overwhelming support from participants in the consultation. The treatment of unequal voting structures in equity benchmarks, however, has proven to be a polarizing question among international institutional investors.
For instance, while many participants felt strongly that benchmarks should be adjusted to reflect unequal voting structures, other participants highlighted that the question of unequal voting rights should be addressed holistically by the stakeholders that are responsible for operating, regulating and investing in equity markets. These stakeholders include, among others, securities regulators, stock exchanges, asset owners and asset managers.
MSCI continues to believe that global market benchmarks, such as the MSCI Global Investable Market Indexes, should aim to represent the broadest investment opportunity set available to international institutional investors based solely on the investability of the underlying markets. Investable market benchmarks should not be constrained by specific investor opinions, preferences or constraints including governance issues. This point has been articulated by many international investors, including asset owners and managers globally, who clearly highlighted the critical need to find the right balance between investor views and comprehensive representation of the investable equity universe.
We recently wrapped up Lynn, Borges & Romanek’s “2019 Executive Compensation Disclosure Treatise” — and it’s printed. This edition has the latest insights from the first year of pay ratio disclosure – as well as Corp Fin’s recently-updated proxy CDIs. All of the chapters have been posted in our “Treatise Portal” on CompensationStandards.com.
How to Order a Hard-Copy: Remember that a hard copy of the 2019 Treatise is not part of a CompensationStandards.com membership so it must be purchased separately. Act now as this will ensure delivery of this 1620-page comprehensive Treatise soon. Here’s the “Detailed Table of Contents” listing the topics so you can get a sense of the Treatise’s practical nature. Order Now.
