The Committee of Sponsoring Organizations of the Treadway Commission (COSO), in collaboration with the National Association of Corporate Directors (NACD), has selected PwC US to assist with developing a Corporate Governance Framework. COSO’s recent announcement indicates that PwC was selected for the project pursuant to a competitive RFP process.
Originally announced back in February, COSO and NACD are collaborating to create “a principles-based governance framework that considers the interests of major stakeholders while maintaining an objective view of leading and desired practice.” This Corporate Governance Framework would be used by:
– public companies seeking to self-assess and enhance governance practices, and by start-up businesses desiring to build up their governance practices and processes;
– private organizations seeking best practices or as part of readiness activities related to initial public offering efforts; and
– external auditors, internal auditors, rating agencies, investors, listing agencies and/or regulators finding such a framework useful in assessing governance practices at related entities.
The announcement of the selection of PwC further explains:
“Good governance is a competitive advantage to every organization. Yet, boards and management may often struggle to effectively integrate good governance in how their organizations operate. For example, the design of incentives or the pursuit of major innovation might possibly create damaging blind spots,” said Peter Gleason, NACD President and CEO. “The CGF will help companies ensure that governance is cohesive in guiding behaviors from the boardroom to the frontlines. We look forward to working with COSO and the PwC team to help build trust in business and society on this important initiative.”
The project is expected to be completed in the fall of 2025.
How did Taylor Swift break all-time records with the Eras Tour?
Well, beyond her remarkable talent, there’s also a lot of value in sharing one’s story.
And here at the SEC there’s also lots of talent and history. So, as we celebrate the SEC’s 90th anniversary, let’s take an “eras tour” of our own.
Throughout the rest of the speech, Chair Gensler dropped in numerous Taylor Swift “Easter Eggs” for all of us Swifties, including “[t]he SEC’s mission is meant to last for evermore.” I would also note that, in his brief history of the SEC, Chair Gensler noted “[t]he 1980s brought us Wall Street the movie, and greedy villains like Gordon Gekko.” As I discussed in my reflections on the SEC’s 90th Anniversary yesterday, I became interested in working at the SEC after watching the movie Wall Street, so I feel like that Easter Egg was placed there just for me.
As John noted last week, the SEC turns 90 today, marking the anniversary of the enactment of the Securities Exchange Act of 1934. Prior to enactment of the Exchange Act, the Federal Trade Commission was tasked with implementing the Securities Act of 1933, so the creation of the SEC on June 6, 1934 no doubt came as welcome relief to the poor FTC staffers who were reportedly sleeping on cots in their office as they tried to deal with Securities Act registration statements that went effective within 20 days of filing per Securities Act Section 8(a). Over the years, the SEC came to be a much-admired agency, the protector of investors that also facilitated capital formation. On a personal note, the SEC became the center of my professional life for almost 30 years now.
The funny thing is that if Future Me went back in time to meet with Teenage Me as I was about to embark on my pursuit of higher education, and Future Me told Teenage Me that I would spend almost of all of my professional career working at the SEC, interacting with the SEC and writing and speaking about the SEC’s every move as it relates to the regulation of public disclosure, my reaction would have likely been: “What is the SEC?” In my blue collar upbringing, Wall Street, investing in public companies and the details of the administrative state were very distant concepts. Having grown up in Maryland and not being much of a college football fan at the time, Teenage Me would not have even assumed that Future Me was talking about the Southeastern Conference.
I believe that I first became interested in the SEC when I was in college, when the movie Wall Street came out in 1987. By the time of its premiere, I had been exposed to the broader world, and I had a cursory understanding of financial markets, accounting and financial reports. But the power of the SEC really caught my imagination when the SEC staffers were on hand to arrest Bud Fox for insider trading and to handle the wire when he had his fateful last meeting with Gordon Gekko. I thought then and there that, whatever it was that the SEC did, it seemed pretty exciting, and the seed was thus planted for me to ultimately go to law school for the express purpose of getting a job at the SEC.
As it turned out, I never got to tape a wire to anybody or to be present when an individual took a Bud Fox-style perp walk while I was working at the SEC. I got to sit at a gray metal desk and review Form 10 filings on an OS/2-powered computer. But that experience actually seemed very exciting to me, because I really wanted to be there to help carry out the SEC’s mission. And even though I am far removed from my SEC service today, I still believe in that mission, and I admire all of those who work at the agency to carry out that mission every day.
The SEC’s enduring esprit de corps and collegiality also gave me something for which I am forever grateful – a family. My kids were commenting just the other day about how so many of my friends and professional contacts are people that I know from the SEC community. I often refer to this group as my “SEC family,” and their friendship and kindness has been incredibly important to me on a professional and personal level. I think that says a lot about the SEC’s success, in that it is able to create such enduring bonds in a high pressure, professional environment that remains mission-focused.
So, on this 90th anniversary, I raise a toast to the SEC, its Commissioners and dedicated staff, past and present. Happy Birthday!
As John noted last week, the SEC will host a staff event this afternoon commemorating the 90-year anniversary of the Securities Exchange Act. The event will also be publicly webcast and include panel discussions featuring former SEC chairs and experts on the history of the SEC. The agenda is as follows:
1:00 – 1:15 p.m. | Opening Remarks by Chair Gary Gensler and Commissioners
1:15 – 2:15 p.m. | Panel 1: A Lookback from the Chair’s Seat
Moderator: Chair Gary Gensler
Panelists:
– The Hon. Richard C. Breeden (1989 –1993)
– The Hon. Mary Schapiro (2009 – 2012)
– The Hon. Mary Jo White (2013 – 2017)
2:15 – 3:15 p.m. | Panel 2: The Legacy of the SEC
Moderator: Chair Gary Gensler
Panelists:
– Michael Beschloss, American historian and bestselling author
– Joel Seligman, American legal scholar, author and leading expert of securities law
– Kathleen Kennedy Townsend, Advisor for Pensions and Retirement, U.S. Department of Labor, and former first female lieutenant governor of Maryland
These events are free to all – you don’t have to be a member of PracticalESG.com to attend. But if you are attending events like these, you need the resources that PracticalESG.com provides. Become a member today by clicking here, emailing sales@ccrcorp.com or by calling (800) 737-1271.
It is not that often that we see a government agency downsizing, so it was interesting to learn yesterday that the SEC has decided to close its Salt Lake City Regional Office. The SEC’s press release states:
The SLRO has long been the SEC’s smallest regional office and recently has experienced significant attrition. The agency considered its budget and organizational efficiency in deciding to close the office, and it has no plans to close any other regional offices. All current staff will be aligned to existing SEC organizational components based on their current functions and agency mission needs.
The SLRO’s enforcement jurisdiction over the state of Utah will be shifted to the SEC’s Denver Regional Office. The SEC’s National Exam Program previously shifted SLRO’s local jurisdiction to Denver many years ago; thus, regional examinations authority will be unaffected by the closure of the office.
The SEC’s regional offices perform important functions for the Commission and are principally comprised of enforcement and exam staff. Back when I started at the SEC in the mid-1990s, the regional offices also included staff who reviewed Regulation A filings, a practice which ended in 1996.
Regional offices were planned for shortly after the SEC opened for business, and Joseph Kennedy opened the first regional office in New York City in December 1934. There have been changes to the regional office network over the years. For example, the first major reorganization of the SEC’s regional offices took place back in 1993, when Arthur Levitt created several regional offices and designated smaller offices as district offices, while shuttering the Seattle regional office. The district offices subsequently regained their regional office status and each of the regional offices was named for the city in which it was located back in 2007.
Meredith recently noted Chair Gensler’s statement in opposition to legislation in the House of Representatives known as the Financial Innovation and Technology for the 21st Century Act, which would amend securities and commodities laws to address the regulation of digital assets. The House passed the legislation, by a vote of 279 to 136. As this Mayer Brown alert notes, the legislation would clarify the responsibilities of the SEC and CFTC with respect to digital assets:
The bill would create three categories of digital assets, which would determine whether a digital asset falls under SEC or CFTC jurisdiction; i.e., as a:
– “restricted digital asset” subject to SEC jurisdiction;
– “digital commodity” subject to CFTC jurisdiction; or
– ”permitted payment stablecoin” subject to either SEC or CFTC jurisdiction, depending on the nature of the intermediary involved in a transaction.
Under the bill, a digital asset would generally be considered a “restricted digital asset” unless it meets the definition of a “permitted payment stablecoin,” or is self-certified as a “digital commodity.” The bill would establish criteria for determining whether a digital asset can be considered a “digital commodity” or a “restricted digital asset” based on:
(1) the level of decentralization and functionality of the digital asset’s underlying blockchain system;
(2) the method of acquisition of the digital asset by an end user; and
(3) the party holding the digital asset (e.g., issuer or unaffiliated third party).
For illustration, it would be likely that a digital asset would meet the criteria for being a “digital commodity” if it (1) is issued through a distribution that is not used for fundraising (i.e., involves only an exchange of nominal value for the digital asset) and is open to all participants equally (i.e., a rewards program) or acquired through a digital commodity exchange; and (2) relates to a blockchain protocol that is functionally decentralized. On the other hand and in contrast, a digital asset would likely to be considered a “restricted digital asset” if it is not related to a functionally decentralized network and is obtained through an issuer distribution in exchange for meaningful value.
The bill would create a self-certification process for “digital commodities,” under which any person could file a certification with the SEC (not the CFTC) that the blockchain system to which a digital asset relates is a decentralized system (while the SEC oversees self-certification, both the SEC and CFTC are directed to engage in joint rulemaking on the self-certification criteria).
The SEC would have 60 days to reject the certification before the assets on such a system would be considered “digital commodities” subject to CFTC jurisdiction. Under this determination by the SEC, a “restricted digital asset” could initially be issued as a security—subject to SEC disclosure and offering requirements similar to those that apply to traditional securities, but specific to digital assets—and later become a “digital commodity” through self-certification. Importantly, a digital asset certified as a “digital commodity” may still be considered a “restricted digital asset” at the same time and is determined based on the holder (e.g., the units held by the issuer, an affiliate of the issuer, or who beneficially owns 5% or more of the outstanding units).
The bill would also address stablecoins and provide for the registration of digital asset intermediaries with the SEC and CFTC, while also establishing a CFTC-SEC Joint Advisory Committee on Digital Assets, which would be comprised of “a group of 20 nongovernmental stakeholders (10 appointed by each of the CFTC and SEC), which would provide advice on digital asset rules, regulations, and policies to the CFTC and SEC, including on how to the agencies should measure and quantify decentralization, functionality, information asymmetries, and transaction and network security of digital assets.” The legislation would direct the SEC and CFTC to engage in numerous rulemakings to implement the new regulatory framework.
As for where this legislation goes from here, the Mayer Brown alert notes:
Even with the strong support for FIT21 in the House, however, its future in the Senate is very uncertain. Most importantly, President Joe Biden does not support the legislation in its current form. Prior to the House vote, the White House released a Statement of Administrative Policy (SAP) stating that the Administration opposed passage of FIT21. The SAP stated that the “Administration is eager to work with Congress to ensure a comprehensive and balanced regulatory framework for digital assets, building on existing authorities,” but that FIT21 “lacks sufficient protections for consumers and investors.” As a result, it is highly unlikely that the Democratic-controlled Senate would bring up FIT21 for a vote unless the bill was amended to secure President Biden’s support. However, if FIT21 is considered by the Senate, the Senate’s recent 60 – 38 vote to pass the joint resolution of disapproval of the SEC’s Staff Accounting Bulletin No. 121 (which imposes high regulatory requirements on public companies, including publicly traded banks, to custody digital assets) under the Congressional Review Act suggests that the 60-vote majority needed to overcome a Senate filibuster may exist in the Senate.
In the meantime, the status quo at the SEC and CFTC will prevail when it comes to digital assets regulation.
I am very excited about our return to in-person conferences in October. Our “2024 Proxy Disclosure & 21st Annual Executive Compensation Conferences” will be taking place in San Francisco on October 14th & 15th. I am particularly looking forward to participating in a number of the panels that make up the two days of conferences, which will include:
– “Erik Gerding: The Latest From Corp Fin” on October 14th
– “The SEC All-Stars: Proxy Season Insights” on October 14th
– “Game Show Lightning Round: All-Star Feud” on October 14th
– “Climate Disclosures: Your New Action Items” on October 14th
– “The SEC All-Stars: Executive Pay Nuggets” on October 15th
There are many other topics on our agenda, and I will be joined by an outstanding group of speakers for the two days of programming. This will be a great opportunity to catch up on the latest developments as we ramp up for the next proxy and annual reporting season.
You can register now by visiting our online store or by calling us at 800-737-1271. Our early bird in-person Single Attendee Price is $1,750, which is discounted from the regular $2,195 rate! If you can’t make it in person, we also offer a virtual option so you won’t miss out on the practical takeaways our speaker lineup will share, and we offer discounted rate options for groups of virtual attendees.
As John noted last week, the new T+1 settlement cycle commenced last Tuesday and we did not end up in any sort of post-Y2K dystopian world. In fact, the move to T+1 settlement appeared to go smoothly. On Thursday, DTCC issued a statement noting:
Our analysis shows that as of yesterday, May 29, 94.55% of transactions were affirmed by the Depository Trust Company (DTC) cutoff time of 9:00PM ET on trade date. This represents a significant change from the affirmation rate observed at the end of January (73%).
When considering specific market segments as of end of day on May 29:
– Prime Broker Affirmation Rate: 98.6% (up from 81% in January)
– Investment Manager Auto Affirmation (central match) Rate: 97.5% (up from 92% in January)
– Custodian or Investment Manager (self) Affirmation Rate: 84.29% (up from 51% in January)
Statement from Brian Steele, Managing Director, President, Clearing & Securities Services: “After working closely with the industry for over three years, we are pleased these efforts are driving a smooth transition, including very high same day affirmation rates, which increased to 94.55% yesterday. While we are proud of this progress, we will continue to collaborate with SIFMA, ICI and the industry to ensure a successful T+1 implementation in the coming days and weeks.”
On Friday, the Investment Company Institute, SIFMA and DTCC issued a joint statement noting:
“With the U.S. T+1 settlement cycle for corporate bonds, municipal bonds, and equities transactions now in place, ICI, SIFMA, and DTCC thank all the stakeholders for their collaboration and support in successfully implementing this historic change to U.S. markets. There was a tremendous amount of partnership and hard work to make T+1 a reality.
“Early indications following T+1 implementation are positive, and we look forward to working closely with firms and key stakeholders in the coming weeks to monitor and address any issues that may arise.
“Shortening the settlement cycle to T+1 promises to deliver greater operational efficiencies and substantially lower margin requirements while reducing risk in the financial system. With T+1 now live, we’ve collectively begun to achieve those benefits together.”
For practitioners, the new T+1 settlement cycle will require some getting used to, as timelines for preparing closing documents and filing final prospectuses and prospectus supplements is accelerated.
We find ourselves in an uncertain time for the IPO market, and it has certainly been a rough ride for SPAC IPOs over the past couple years. It remains to be seen how the SEC’s new rules will impact the willingness of sponsors to bring SPACs to market through IPOs. For those brave souls who decide to dip their toes into the IPO waters, Woodruff Sawyer has provided a helpful publication with its 2024 edition of the Guide to D&O Insurance for SPAC IPOs. In the publication, the firm notes:
As it goes through the IPO process, the main assets of a SPAC are its cash in trust, its management team and directors, and the management team’s investment strategy.
SPAC management teams and directors are vulnerable to lawsuits from their public company shareholders as well as regulators like the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ). D&O insurance is designed to mitigate the risk of litigation costs falling on individual directors and officers and the companies they serve.
The vulnerabilities associated with being a public company create a need for D&O insurance coverage for the SPAC’s management team and its board. Remember too that national stock exchange rules mandate that most of a SPAC’s board must consist of independent board members. Businesspeople who serve as independent board members typically do not accept a board appointment without the promise of good D&O insurance to protect them against lawsuits and regulatory enforcement.
The Guide to D&O Insurance for SPAC IPOs provides an overview of the most common litigation that SPACs have faced, a description of the regulatory enforcement environment, an explanation of the process for securing D&O insurance and questions to ask when engaging a broker, among other topics.
