John blogged a couple of weeks ago that the SEC pursued enforcement against The Brink’s Company for not including a “whistleblower” exemption in employee confidentiality agreements. We’re posting memos on this topic in our “Whistleblowers” Practice Area – and you’d better read them! Because as this Wiley memo points out, the SEC expects you to know what’s in there and act accordingly. Here’s an excerpt:
Remarkably, the SEC Order relies on Brinks’s receipt of widely distributed law firm client alerts to demonstrate that Brinks had knowledge that its Confidentiality Agreements were improperly restrictive. The SEC Order specifies that between 2015 and 2016, Brinks’s legal department received multiple legal updates from outside counsel highlighting new SEC enforcement actions for violations of Rule 21F-17(a).
As we described in our own client alert in 2016, at this time, the SEC had launched its campaign to enforce the whistleblower rules enacted in 2011. The emerging enforcement actions indicated that the SEC was targeting restrictive clauses – even those in legacy confidentiality agreements and other employment documents which pre-dated the enactment of the SEC’s 2011 whistleblower rules.
Specifically, the SEC order emphasized that company lawyers had received several “general client bulletins, legal alerts, and case summaries” about the Commission’s 21F-17 enforcement activity. In addition, the company’s regular outside employment counsel attached an alert as a “client memo” to an email they sent to the General Counsel and other lawyers involved with the employment agreements, which predicted more enforcement activity and recommended that public companies revise their employment agreements. While Rule 21F-17(a) doesn’t require intent to prove a violation, the SEC cast that as “specific advice” – and used it to add context to other findings that resulted in the settlement.
The SEC isn’t alone in expecting lawyers to read client alerts and apply the steps that the alerts recommend. A few years ago, John blogged about a federal court decision that found a “known trend” could exist for MD&A disclosure purposes because it was described in a client alert. John’s takeaway is doubly important now:
Aside from making a subscription to our sites even more of a necessity, this case shows both the resourcefulness of the plaintiffs’ bar and the potential need for companies to incorporate the “client alert” communications from their professional advisors into their disclosure controls & procedures.
In a record-setting order last week, a FINRA arbitration panel issued a $52 million defamation award to Dan Michalow – the former co-head of global hedge fund D.E. Shaw’s Macro Group who had been fired in 2018. D.E. Shaw said publicly at the time that the termination was prompted by a complaint that alleged “abusive and offensive conduct.” Here’s more info from one of the firms that represented Mr. Michalow in the binding proceedings:
The FINRA panel explicitly found that D.E. Shaw had defamed Michalow and that Michalow did not commit sexual misconduct. D.E. Shaw and four members of its executive committee were found jointly and severally liable.
According to FINRA databases, the damage award is the sixth-largest overall award handed down to an employee by FINRA, the largest ever awarded by FINRA for defamation, and the largest ever to an individual employee.
According to this Investment News write-up, Mr. Michalow issued a statement in connection with the order that says he believes he was a scapegoat to deflect scrutiny of the firm’s broader culture.
This outcome shows that there’s often no cut & dry way to respond to complaints like the one that started this whole mess. It may be appropriate to take swift action and make public statements that stand against alleged wrongdoing – yet it’s also important to avoid making pointed statements against individuals before they’re proven true. Even better, avoid the issue in the first place by monitoring & addressing cultural issues before they lead to a complaint. Last fall, D.E. Shaw appointed Maja Hazell, the former Global Head of Diversity & Inclusion at White & Case, as a Managing Director and first-ever Head of DEI.
Our checklist on “Board Risk Oversight – Sexual Harassment Policies” outlines steps to navigate these issues. On PracticalESG.com, we’re adding resources every day that provide practical guidance on enhancing Diversity, Equity & Inclusion programs. DEI effort & progress is essential in today’s environment where employees are empowered to publicly air grievances and the public is ready to pile on – and DEI officers need to be supported with adequate resources in order to solve the problems they’re hired to address. We have over a dozen subject area pages with curated, practical guidance on navigating diversity topics, on-demand replays of our 3-part event on DEI data and civil rights audits, DEI checklists on 20 key topics (and growing), and more.
If you aren’t a member with access to these resources, sign up online, email sales@ccrcorp.com, or call 1-800-737-1271. Our “100-Day Promise” makes this a “no-risk” situation: during the first 100 days as an activated member, you may cancel for any reason and receive a full refund!
We continue to post new items regularly on our “Proxy Season Blog” for TheCorporateCounsel.net members. “Proxy season” never really ends these days – but as we reach the end of the busiest part of the year for annual meetings, it’s time to reflect on how to prepare for “off-season” engagements and 2023.
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:
– Two Lobbying-Related Shareholder Proposals Garnered Majority Support
– JUST Capital’s Corporate Racial Equity Tracker
– More on: Advocate’s Proxy Voting Service Could Amplify Its Calls for ESG Action
– Georgeson’s Institutional Investor Survey: Look Out for More E&S Support
– CPA-Zicklin Expands “Political Spending” Index to Russell 1000
– Virtual Annual Meetings: “Shareholder Q&A” Floor Proposal Defeated, For Now
Yesterday, the Senate confirmed the nomination as SEC Commissioners of Jaime Lizárraga, who is currently a Senior Advisor to Speaker of the House Nancy Pelosi and previously served as a presidential appointee at the SEC, and Mark Uyeda, who has been a career attorney with the SEC since 2006. The existing Commissioners published this statement to welcome Jaime & Mark back to the Commission.
Mark replaces former SEC Commissioner Elad Roisman, to serve out the term that expires on June 5, 2023. Jaime replaces SEC Commissioner Allison Herren Lee – whose term expires this month – and his term expires on June 5, 2027.
This confirmation process has moved pretty quickly since President Biden announced the nominations in April. Once the new Commissioners are sworn in, the agency will be back to a full 5-person slate. Commissioner Lee previously announced that she would depart from the SEC once her successor was confirmed.
Does the SEC’s rule proposal on climate disclosure exceed the Commission’s statutory authority? That’s the theory that some have advanced in comment letters and that a recent court decision may portend. But this issue is far from being clear-cut. Here’s the intro from yesterday’s NYT DealBook:
A bipartisan group of 18 former top S.E.C. officials and legal luminaries are standing up for the agency’s power to make rules that require companies to disclose more information about their climate effects and risks. The group includes the former S.E.C. chairs Harvey Pitt, who was appointed by George W. Bush, and Mary Schapiro, who was appointed by Barack Obama, along with top legal experts like Leo Strine Jr., the former chief justice of Delaware’s Supreme Court, and Lucian Bebchuk, a corporate law professor at Harvard.
In a letter to the S.E.C. today, shared exclusively with DealBook, the group urges the agency to ignore claims that climate is a new issue and that it needs explicit permission from Congress to address it now, pointing to a history of S.E.C. rules going back “at least as far as the Nixon administration.”
Regardless of when this rule is adopted and how the eventual legal challenges play out, climate disclosure expectations will continue to march forward. Register today for our free 2-part webcast on July 13th, where we’ll discuss “lessons learned” from drafting model disclosures; practical steps to take right now to prepare for enhanced data collection, validation & communication; and expectations from investors and other stakeholders.
And don’t forget to take advantage of our “Early Bird” rate – which expires today! – and register now for our virtual “Proxy Disclosure & 19th Annual Executive Compensation Conferences.” Former Delaware Chief Justice Leo Strine Jr. is among the experts who will be speaking on ESG disclosures, risks & more. Here are the full agendas – 18 panels over 3 days.
We emerged from our basements and met up this week at the Skytop Strategies “Shareholder Activism ESG Super Summit.” John & Lawrence were part of a fantastic speaker lineup. Here we are, living it up in 3D:
The CCRcorp contingent, L-to-R: Account Exec Kayla Talamantez, John, me, Lawrence, our Event Manager Victoria Newton, our Senior Sales Manager Chris Calaluca.
Pretty wild that many of us had never even met in person before, and it’s been 3 years since John & I have seen each other. It’s his birthday today – and anyone who has read this far should drop him a note to wish him a good one!
Programming note: In observance of Juneteenth, our office will be closed on Monday and we will not be publishing a blog. We will be back on Tuesday!
Yesterday, the SEC announced that it is seeking public comment on the activities of certain “information providers” – such as index providers, model portfolio providers, and pricing services – including whether, under particular facts and circumstances, they are acting as “investment advisers” under the Investment Advisers Act of 1940.
The 32-page request for comment identifies 40 specific questions on which the Commission is seeking feedback, but the SEC welcomes comments on other relevant issues as well. It was accompanied by statements from SEC Chair Gary Gensler and Commissioner Caroline Crenshaw that highlight the growing influence of index providers and model portfolio providers. Chair Gensler noted:
Registered funds that track indexes have grown substantially to over $10 trillion of assets under management. These indexes have grown not only in size but also in available types, ranging from broad-based indexes for general use to specialized, narrowly-focused ones designed for particular users. Having evolved in size and scope, these indexes are increasingly influential. Thus, an index provider’s decision to include a particular security in an index often influences users of the index to purchase or sell securities. This raises questions about whether the index provider is providing investment advice. Model portfolio providers and pricing services have similarly grown and evolved.
This request for comment directly follows a big hubbub over Tesla dropping out of the S&P 500 ESG Index due to a routine rebalancing – which Lawrence blogged about on PracticalESG.com. But this issue has been brewing for years. In 2017, there was a ton of hand-wringing over whether broad-based indexes would exclude companies that had dual-class capital structures. Eventually, BlackRock came out and said that it didn’t think index providers should be wielding such influence. Everyone seemed to fall in line with that position…but the rise of ESG & specialized indexing is bringing the issue back to the fore.
Sure, we’re now in a bear market – but hope springs eternal. IPOs will return – eventually – and Latham’s 148-page guide is a “must read” for anyone getting up to speed on the process. I have always loved how this guide is formatted like an actual prospectus and shares the “secret sauce.” Here’s what it covers:
– Summary (Preliminary Checklist, Pros & Cons, Timeline)
– The IPO Business (Basics, EGCs, Gun-Jumping)
– Financials
– Upsizing & Downsizing
– Specific Issues & Industries (FPIs, MLPs, REITs, Life Sciences)
– FINRA Review Process
– Beginning Life as a Public Company
– Liability Under the US Federal Securities Laws
– IPO Checklist
– NYSE & Nasdaq Listing Criteria & Governance Requirements
– Exchange Act Reporting Requirements
See our “IPOs” Practice Area for more resources – including surveys & memos that delve into specific topics.
We continue to post new items regularly on our “Proxy Season Blog” for TheCorporateCounsel.net members. With shareholder activism, amped-up engagement, and larger numbers of debt holders, “proxy season” now feels like a year-round affair – and this blog covers trends in proposals & engagements, no-action requests, shareholder meeting issues, and more.
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:
– Icahn’s Animal Welfare Activism Comes to a Close
– Record Support to Eliminate Dual-Class Structures
– Early Returns From ’22 Proxy Season
– Engine No. 1 Makes a U-Turn?
– Shareholders Approve Proposal for Third-Party Human Rights Assessment at Firearms Manufacturer
– Plan for Continued Focus on Diverse Board Composition
America’s labor shortage is getting lots of attention – here’s a recent analysis from the US Chamber that points out some industry differences, while Forbes blames retiring Boomers. One thing is pretty clear – the strategic importance of “human capital” isn’t going to fade anytime soon.
That may be why more companies are now disclosing board involvement in things like “talent management” and “employee engagement” – even though hearing & responding to “worker voice” has not traditionally been viewed as part of the oversight role of the board. Boards that are able to keep their finger on the pulse of worker sentiment are better positioned to chart corporate HR strategies and monitor when things might be getting off-course.
Yet, just how boards can do that is pretty murky. Most information gets filtered through management. I blogged last fall about several ideas for incorporating “worker voice” into the boardroom. Now, “friend of the sites” and PracticalESG.com Advisory Board member Doug Chia has republished his full analysis & recommendations on the topic – “Reimagining Board Committees to Accommodate Worker Voice.” Here are Doug’s concluding recommendations:
If worker voice is to be made a board priority, that initiative should start with a dedicated board committee with worker engagement specifically in mind. A board typically creates committees, either standing or ad hoc, for a subset of the board to dive deep into particular board responsibilities or subject matters and report back to the full board, sometimes with recommendations for board action. Many public company boards maintain standing committees (in addition to the obligatory audit, compensation, and nominating committees) that focus on finance, risk, science and technology, and environmental health and safety.
Board committees are of particular interest because, unlike so many other areas of corporate governance, boards have unencumbered power to form their own committees for specific purposes. Boards are in control their own committee structures, charters, members, and agendas. Boards also have authority to retain independent experts to serve as resources to its committees, thereby reducing its otherwise exclusive reliance on senior management for information and engagement with employees.
Board committees dedicated to hearing and understanding worker voice can be creative in how they approach their task. This could be done through a combination of employee advisory committees, focus groups, site visits, town hall meetings, and other forms of engagement, both formal and informal. While many experts and policymakers are calling for worker representation on boards in the form of directors who are selected by the employees, creating and effectively using board committees dedicated to worker voice is a more practical and achievable means of hearing worker sentiment to inform board oversight, decision-making, and CEO evaluation.
