With apologies to “The Scarlet Pimpernel“, this blog’s title is a fair summary of the results of Morrow Sodali’s annual institutional investor survey. More than 40 global institutional investors with a combined $26 trillion in assets under management participated in the survey, which was conducted in January. Among its other highlights, the survey found that:
– All respondents state that ESG risks and opportunities played a greater role in their investment decisions during the last 12 months, with climate change being top of investors’ list (86%).
– Climate change (91%) and human capital management (64%) are cited as the top sustainability topics that investors will focus on when engaging with boards in 2020.
– Notably, investors now prioritize presence of ESG risks (32%) before a credible activist business strategy when deciding whether to support ESG activists.
– Overwhelmingly 91% of respondents expect companies to demonstrate a link between financial risks, opportunities and outcomes with climate-related disclosures. A total of 68% respondents believe that greater detail around the process to identify these risks and opportunities would significantly improve companies’ climate related disclosures.
– When it comes to the company’s ESG performance and approach, investors recommend SASB (81%) and TCFD (77%) as best standards to communicate their ESG information.
91% of the institutions surveyed said that that board level engagement is the most effective way for investors to influence board policies – and nearly half said they’d consider voting against a director to influence outcomes.
Conflict Minerals: Time for a Fresh Look at Disclosure & Compliance Programs
Remember when everybody thought the Conflict Minerals disclosure requirement was on the way out? Yeah, good times. . . Anyway, this Ropes & Gray memo says that changes in the global regulatory environment and increasing investor demands for information on conflict minerals mean that it’s time for companies to take a fresh look at the way they approach disclosure and compliance. Here’s the intro:
The seventh year of filings under the U.S. Conflict Minerals Rule will be due in slightly under three months. At most companies, conflict minerals reporting and compliance have been more or less static for the last few years. It is time for many companies to take a fresh look at their conflict minerals disclosure and compliance program. In some cases, disclosures have become outdated and compliance programs have not kept pace with market developments.
In addition, over the last few years, the global regulatory landscape has continued to evolve, both with respect to conflict minerals specifically and human rights more broadly, with more changes on the way. Furthermore, investor expectations concerning supply chains – as part of ESG integration by mainstream investors – continue to increase.
The biggest regulatory event on the horizon is EU Conflict Minerals Regulation, which takes effect on January 1, 2021. The EU Regulation generally will require importers of 3TG (tin, tantalum, tungsten and gold) minerals into the EU to establish management systems to support due diligence, conduct due diligence and make disclosures about the 3TG they import into the European Union.
The memo provides an in-depth overview of the EU Regulation, and notes that while only a small number of U.S. Form SD filers will also be subject to the EU Regulation, the conflict minerals compliance programs of a large number of U.S.-based companies will need to address the EU Regulation.
Board Governance: Should You Keep Your Ex-CEO on the Board?
Cooley’s Cydney Posner recently blogged about this Fortune article addressing whether your former CEO should remain on the board after their departure. This excerpt says that many governance experts think that’s a bad idea – particularly if your CEO will assume some sort of “Executive Chair” role:
Some governance gurus cited in the article consider making the transition to executive chair a “bad idea.” According to one governance expert, the position of executive chair really “means you’re CEO….The person with the CEO title is really the chief operating officer.” Another expert observed that a good CEO will see that it’s “not fair to the new person.” Another academic doesn’t hold back, calling it “a stupid idea.
All kinds of psychological factors get in the way. Maybe the new CEO owes his or her job to the predecessor. Or maybe the new CEO can’t stand the previous one. Maybe the old CEO brought all the other directors onto the board, and they feel loyal to him or her. It obstructs the new CEO from doing his or her job.” Another problem highlighted was the difficulty for the new CEO to change course or raise issues about the former CEO’s decisions when the former CEO is still in the room. Awkward, at a minimum.
On the other hand, Cydney says that the authors contend that retaining the CEO on the board or in a consulting capacity for a brief time may provide benefits in terms of continuity. Interestingly, the article also says that in situations where the former CEO isn’t a founder, keeping the CEO on the board “is negatively associated with the firm’s post-turnover financial performance.”
In what may be a sign of things to come for many of us, The Washington Post reports that last night, the SEC asked employees in its DC headquarters to work from home in response to concerns that an employee may have contracted the coronavirus:
The Securities and Exchange Commission on Monday asked employees at its D.C. headquarters to stay away from the office because of a potential coronavirus case, becoming the first major federal employer to turn to telework to avoid the spreading virus.
The announcement from the agency, which is charged with monitoring the financial markets, came after a day of turmoil on Wall Street, with the Dow Jones industrial average falling more than 2,000 points. The agency‘s notice, which was emailed shortly after 8 p.m., required employees working on the ninth floor of its office to stay home and encouraged all others to do the same.
While the SEC may be the first federal agency to ask employees to telecommute, a number of U.S. businesses have also implemented work from home policies for some employees in response to the outbreak. Many others are adopting contingency plans that contemplate doing the same. For instance, last night my law firm sent out an email directing everyone to take their laptop computers home each night, in case the decision was made to implement a work from home policy for personnel at one or more of our offices.
Coronavirus: Will Business Interruption Insurance Pick Up Some of the Tab?
Many companies are looking into whether forced closures resulting from the coronavirus outbreak are covered under their business interruption policies. This Stroock memo delves into that question, and it turns out – as usual when it comes to coverage issues – the answer is pretty complicated. But the bottom line is don’t bet on it. Here’s an excerpt from the intro:
With COVID-19 disrupting global supply chains and sales, businesses are losing income and incurring additional expenses as a result of the disruption. There likely will be an increase in insurance claims against insurance policies offering business interruption and/or contingent business interruption coverage. Whether the claims are covered will depend on the terms and conditions of the insurance policy and the circumstances of the loss.
One of the largest independent claim managers has cautioned that “successful claims under business interruption coverage for infection are not common.” Indeed, there are no reported cases in the United States regarding business interruption coverage in connection with human infectious disease epidemics or pandemics. However, commerce has never been as global as it is today.
The memo does a good job summarizing the various types of policies that provide business interruption insurance and the way in which they’ve been interpreted by the courts. After reading it, I think it’s fair to say that any company that seeks to recover under a business interruption policy should be prepared for a long and uncertain fight.
Auditor Refreshment: Every 87 Years Like Clockwork. . .
A recent Audit Analytics blog noted that Brown Forman recently changed its outside auditors for the first time in 87 years, and also pointed out that since 2018, there were only two other S&P 500 companies to change auditors after a longer tenured engagement. GM parted ways with Deloitte after 100 years, and DuPont de Nemours ended its relationship with that same firm after 113 years.
That raises the larger question of just how long have S&P 500 companies used the same auditors? The blog lays that out too, with a chart showing the frequency distribution of auditor tenure in 10-year increments. While only 38 companies have auditors with tenures exceeding 80 years, 94 companies – or nearly 20% of the S&P 500 – have had the same auditor firm for more than 50 years. More than half of the S&P 500 (265 companies) have had the same auditor for more than 20 years.
I guess we can add earnings calls to the ever-growing list of things that the coronavirus outbreak has thrown a giant monkeywrench into. This recent article from “CFO Dive” says that public company CFOs have been scrambling to explain the potential impact of the outbreak on their company’s bottom line during recent earnings calls. This excerpt provides some examples of what BigTech has been saying:
As of last week, references to coronavirus have been made over 8,000 times across over 1,000 companies on earnings call transcripts, natural language processing company Amenity Analytics found,
Apple led the pack as the first corporate giant to state that it wouldn’t meet its Q1 revenue projections due to the virus, which originated late last year in Wuhan, China. iPhones, which are manufactured in China, have experienced limited production and reduced domestic demand, Apple announced on February 17.
Microsoft soon after followed suit. “Although we see strong demand … the supply chain is returning to normal operations at a slower pace than anticipated at the time of our Q2 earnings call,” the company said last week. “As a result, for the third quarter of fiscal year 2020, we do not expect to meet our More Personal Computing segment guidance as Windows OEM and Surface are more negatively impacted than previously anticipated.”
The article also features commentary on the outbreak’s earnings impact from companies across a range of industries, including financial services, hospitality, retail, and consumer products. Spoiler alert: the news is not good.
Upcoming Webcast: “The Coronavirus – What Should Your Company Do Now?”
We’ve blogged so much & posted so many memos on the implications of the coronavirus outbreak that I’m starting to think that we should change our name to “TheCoronavirusCounsel.net.” But there’s no getting around the fact that this is a very big deal. In addition to its tragic & rising human cost, the COVID-19 outbreak has disrupted global supply chains, staggered financial markets, and created huge uncertainties for businesses and investors.
Those disruptions & uncertainties have important implications for public companies and those who advise them. That’s why we’ve just calendared a webcast – “The Coronavirus – What Should Your Company Do Now?” – for Thursday, March 19th. The webcast features Davis Polk’s Ning Chiu, WilmerHale’s Meredith Cross, Uber’s Keir Gumbs and our own Dave Lynn. The panelists will tackle some of the key issues confronting public companies & their lawyers as a result of this ongoing international public health emergency.
Tomorrow’s Webcast: Conduct of the Annual Meeting
Tune in tomorrow for the webcast – “Conduct of the Annual Meeting” – to hear McDonald’s Jennifer Card, Independent Inspector of Elections Carl Hagberg, and GE’s Brandon Smith talk about annual meeting logistics, dealing with the media, preparing officers & directors, rules of conduct, disruptive shareholders, tabulation issues and meeting post-mortems.
Last month I blogged about a shareholder proponent that sued a Montana energy company seeking to force the company to include the proponent’s proposal on the company’s proxy ballot. Well, last week, the court ruled in the company’s favor and said the proposal could be excluded. What implications might this case have for shareholder proposal litigation? A timely Jones Day memo helps walk through that analysis. Here’s an excerpt from the memo:
The Court determined that under the Auer doctrine it should defer to the SEC’s formal releases, but that informal SEC staff interpretations, such as Staff Legal Bulletins and no-action letters, were entitled to “consideration” but not “persuasive weight.” Drawing on the Third Circuit’s analysis in Trinity Wall Street, a decision that the SEC staff had disavowed in a prior Staff Legal Bulletin, the Court held that the proposal could be excluded under the “ordinary business” exclusion of SEC Rule 14a-8.
Looking Ahead: The ruling may impact shareholder proposal litigation in two ways. First, the decision’s approach to Auer deference may breathe renewed life into certain Rule 14a-8 exclusions that were previously interpreted narrowly by informal SEC staff pronouncements. Second, the Court’s reliance on Trinity Wall Street reinforces the Third Circuit’s issuer-friendly analysis of the “ordinary business” exclusion.
Future of the PCAOB
As reported in various news outlets (here’s one from Accounting Today), President Trump’s 2021 budget includes a proposal that would consolidate the PCAOB into the SEC. Consider me a skeptic as to the likelihood of this actually happening, but then again it’s up to Congress so we’ll see. This blog from Baker Botts discusses some of what this might mean for issuers and auditors if it really happens. Here’s some considerations:
– Would the monitoring of public accounting firms be carried out in the same manner as it has been under the PCAOB? Would the SEC replicate the scope, magnitude, and rigor of the PCAOB’s regulatory activities?
– The proposed budget raises the possibility that funding will be reduced, does this mean auditor oversight activities would be reduced under the SEC—or would consolidation truly save millions without a reduction in oversight activities?
– Would the SEC would assume the PCAOB’s standard-setting function?
– Would audit firms and auditors lose confidentiality protections, which were explicitly required when Congress created the PCAOB, that aren’t necessarily available for charges brought by the SEC?
As alluded to in the blog, perhaps even if the consolidation doesn’t happen, there may be other changes in store for the PCAOB.
Managing Data Privacy Compliance
With 2020 bringing the effectiveness of the California Consumer Privacy Act and the New York Stop Hacks and Improve Electronic Data Security Act (otherwise known as the “SHIELD Act”) – and other state legislatures preparing to advance their own data privacy laws – this Jackson Lewis blog provides a list of 10 steps to help manage data privacy compliance. The list is a helpful reminder for managing any program but especially helpful as many compliance departments may be feeling overwhelmed with the proliferation of data privacy laws. Here’s an excerpt:
– Set expectations – remember staying on top of privacy laws will be an on-going effort
– Build interdisciplinary teams – include not only IT, but also HR, legal, operations and other business area representatives
– Evaluate new technologies carefully – not all technologies may have been developed or designed with an eye toward data privacy or security
– Remember to manage data retention – retain data and information strategically and deliberately
As for the CCPA, California’s Attorney General proposed two rounds of amendments to the regulations in February. This Cleary memo provides a summary of the proposed changes and we’re posting additional memos in the “state law” section of our “Cybersecurity/Privacy/Data Governance” Practice Area.
Yesterday, the SEC issued this 341-page proposing release intended to “simplify, harmonize, and improve certain aspects of the exempt offering framework.” The SEC’s press release summarizes the changes. Among other changes, the SEC proposes:
– Revisions to current offering and investment limits for certain exemptions for Reg A, Regulation Crowdfunding and Rule 504 of Reg D
– Amendments relating to offering communications, including:
New rule permitting issuers to use generic solicitation of interest materials to “test-the-waters” for an exempt offer of securities prior to determining which exemption it will use
Rule amendment permitting Regulation Crowdfunding issuers to “test-the-waters” before filing an offering document with the Commission in a manner similar to Reg A
New rule providing that certain “demo day” communications would not be deemed a general solicitation or general advertising
– Amendments to eligibility restrictions in Regulation Crowdfunding and Reg A, which would permit use of certain special purpose vehicles to facilitate investing in Regulation Crowdfunding issuers, and would limit the types of securities that may be offered and sold in reliance on Regulation Crowdfunding
– Changes to the Securities Act integration framework by providing a general principle of integration that looks to the particular facts and circumstances of the offering, and focuses the analysis on whether the issuer can establish that each offering either complies with the registration requirements of the Securities Act, or that an exemption from registration is available for the particular offering
– Four non-exclusive safe harbors from integration
– A change in the financial information that must be provided to non-accredited investors in Rule 506(b) offerings to align with financial information issuers must provide to investors in Reg A offerings
– A new item in the non-exclusive list of verification methods in Rule 506(c)
– Simplification of certain requirements for Reg A offerings
– Harmonization of bad actor disqualification provisions of Reg D, Reg A and Regulation Crowdfunding
The comment period on the proposing release will remain open for 60 days following publication of the release in the Federal Register. It’s hard to say whether these amendments will make everyone happy but with all the confusion caused by the current rules, one would think the amendments will bring some improvement.
SEC Issues COVID-19 Coronavirus Exemptive Order
Yesterday, the SEC took steps to address COVID-19 concerns and issued an unprecedented COVID-19 exemptive order. The SEC’s order provides publicly traded companies, subject to certain conditions, an additional 45 days to file certain disclosure reports that would’ve otherwise been due between March 1 and April 30, 2020. Companies seeking to rely on the order, need to furnish a Form 8-K – or 6-K – by the later of March 16th or the original reporting deadline.
The SEC filing relief isn’t available for all companies though as companies seeking to avail themselves to the SEC’s filing relief need to satisfy certain conditions, which are listed in the order and include among other things, a company’s inability to meet its filing deadline due to circumstances relating to COVID-19. The order also lists the information requirements for the Form 8-K or 6-K.
The order also provides relief for furnishing of proxy and information statements to shareholders “when mail delivery isn’t possible” and the order lists conditions for that relief.
In addition to providing filing relief to certain companies, the SEC’s press release reminds companies of their disclosure obligations:
For example, where a company has become aware of a risk related to the coronavirus that would be material to its investors, it should refrain from engaging in securities transactions with the public and to take steps to prevent directors and officers (and other corporate insiders who are aware of these matters) from initiating such transactions until investors have been appropriately informed about the risk.
When companies do disclose material information related to the impacts of the coronavirus, they are reminded to take the necessary steps to avoid selective disclosures and to disseminate such information broadly. Depending on a company’s particular circumstances, it should consider whether it may need to revisit, refresh, or update previous disclosure to the extent that the information becomes materially inaccurate.
Companies providing forward-looking information in an effort to keep investors informed about material developments, including known trends or uncertainties regarding the coronavirus, can take steps to avail themselves of the safe harbor in Section 21E of the Exchange Act for this information.
As stated in its press release: the “Commission may extend the time period for the relief, with any additional conditions it deems appropriate, or provide additional relief as circumstances warrant. Companies and their representatives are encouraged to contact SEC staff with questions or matters of particular concern.”
The development of COVID-19 has certainly made this year’s annual meeting season more complicated and has everyone watching for the latest guidance addressing a host of issues. To help – we’re posting memos about COVID-19 implications in our “Risk Management” Practice Area.
More on “Annual Meetings: Planning for COVID-19 Developments”
Yesterday, I blogged about possible COVID-19 implications for annual shareholders’ meetings and said maybe interest in virtual annual meetings would pick up. Thanks to Brooke Goodlett of DLA Piper for pointing us to Starbucks. Just yesterday, Starbucks filed an amendment to its proxy statement changing its annual shareholders’ meeting to a virtual-only meeting. Last year, Starbucks held an in-person meeting along with a webcast and according to this year’s original proxy statement, the company had been planning for the same format again this year.
Starbucks annual meeting is coming up in just a couple of weeks, so this is a pretty late-breaking development. It’s worth noting that Starbucks is a Washington company, not Delaware. DLA Piper’s memo on coronavirus considerations suggests companies consider, to the extent permissible by the company’s charter documents and state law, virtual board and shareholder meetings.
Last month we included a guest blog from Rhonda Brauer, and we’re excited to bring another post from Rhonda to you:
Since my last guest blog on the sustainability reporting frameworks, UK-based Aviva Investors published a thoughtful inhouse article on “Climate data: Seeing through the fog”, as part of a larger climate-related series. Many of us interviewed for this article agreed that required, not voluntary, reporting would be the best solution to the problem of not having comparable, relevant and transparent corporate ESG disclosures. The article goes on to explore how “big data” — which is too complex to be analyzed using traditional processing applications — and artificial intelligence (AI) could help solve this problem in the interim, particularly when applied to climate change and similar issues.
Highlights include:
Although the use of satellites, sensors and big data analytics to measure emissions and inform investment decisions is just beginning, much of the data and computer programmes that make it possible exist and are constantly improving.
Whether to measure direct emissions from factories, across a company’s supply chain, or at a country level, an increasing number of options are emerging including mobile data, big data analytics from online sources, satellite measures and data available from a plethora of sensors scattered around the world.
This type of approach allows analysts and researchers to find and assess relevant data that does not feature in companies’… disclosure reports… through scraping (compiling information from online and offline sources) and crawling (using programmes to search across online sources)… Using AI to sort and analyse the mass of information gathered could make sense of it without deploying armies of researchers.
One cited example of how big data and AI can help reduce carbon emissions: Deforestation can now be predicted and detected through digital solutions, which form the basis for proactive action through monitoring and improving agriculture, reforestation and peatland restoration.
The article also includes examples of data gleaned from government satellites that make their data public versus commercial satellites and drones, how such data can be used and influenced by both equity and debt investors to inform financial decisions and to better detect “greenwashing” or manipulation of data, gaps that remain when using such data, how investors can play a critical role, and how companies should be using similar analyses for their business models.
Annual Meetings: Planning for COVID-19 Developments
In case you missed it, here’s something I blogged yesterday on our Proxy Season blog: This memo from Davis Polk walks through some of the things you might want to think about if you’re worried about the COVID-19 coronavirus and how it might affect where or when you hold your annual shareholders’ meeting. The memo looks at these considerations in context of SEC proxy rules and Delaware law. With COVID-19 developments moving quickly, the memo is timely and helpful because someone is bound to ask what your plan is in case you need to move the meeting location, etc.
For those that have already mailed the proxy statement:
In the event you have a last minute change in your meeting location or date, the memo discusses whether you would need to re-mail the proxy statement – the answer is “no” except for special circumstances described in the memo. Even though you likely wouldn’t need to re-mail the proxy statement, the memo says you should disclose the change as soon as possible by issuing a press release and filing the press release with the SEC as supplemental proxy materials.
For those that are still working on your proxy statement:
If you’re still working on your proxy statement and haven’t mailed it yet and you’re considering the possibility of a last minute change in venue or date, the memo suggests disclosing the possibility of a change in your proxy statement but says a change to the proxy card itself is likely unnecessary.
I often worried about what we would do if our meeting venue was suddenly unavailable, not to mention worries about technical snafus and our team had back-up plans “just in case”. To help you prepare and hopefully avoid any annual meeting surprises, here’s a reminder to visit our “Checklists” Portal – especially this one on “Annual Meeting Surprises.”
Virtual Meetings
A few weeks ago, I blogged about things to consider if you’re thinking of holding a virtual annual meeting. Maybe interest will pick up but again, it’s not for everyone. If you want to look into this further, here’s another comprehensive resource about virtual meeting considerations sent to us from the folks at Veaco Group.
Also, it has been reported that in advance of Apple’s shareholder meeting last week, Apple warned those planning to attend to take extra health and safety precautions due to the ongoing development of COVID-19.
Really? SEC Cancels Another Open Meeting
It happened again, the SEC has cancelled an open meeting scheduled for today about proposed changes to rules on private offerings. Broc blogged last fall about how the SEC was cancelling open meetings on what was turning out to be a regular basis. Unclear what led to the cancellation this time, maybe a Commissioner is unavailable at the last minute or perhaps the Commissioners will take action in seriatim and still get something done, we’ll see and stay tuned!
Yesterday, the SEC voted to adopt amendments that significantly change the financial disclosure requirements for guaranteed debt offerings under Regulation S-X Rule 3-10 and Rule 3-16. The changes are intended to improve the quality of disclosure and increase the likelihood that issuers register debt offerings and provide investors with protections they wouldn’t receive in unregistered offerings.
Here’s the 265-page release. The SEC’s press release summarizes amendments to Rule 3-10, which will be amended and partly relocated to new Rule 13-01, high-lights include:
– 100% ownership replaced by consolidation
– Condensed consolidating financial information reduced
– Disclosure may be made outside the financial statement footnotes
– Disclosure ends when Exchange Act reporting ends
Here’s the SEC’s press release summary of the new Rule 13-01 high-lights:
– Replace the condition that a subsidiary issuer or guarantor be 100%-owned by the parent company with a condition that it be consolidated in the parent company’s consolidated financial statements
– Replace condensed consolidating financial information, as specified in existing Rule 3-10, with certain new financial and non-financial disclosures. The amended financial disclosures will consist of summarized financial information, as defined in Rule 1-02(bb)(1) of Regulation S-X, of the issuers and guarantors, which may be presented on a combined basis, and reduce the number of periods presented. The amended non-financial disclosures, among other matters, will expand the qualitative disclosures about the guarantees and the issuers and guarantors. Consistent with the existing rule, disclosure of additional information about each guarantor will be required if it would be material for investors to evaluate the sufficiency of the guarantee
– Permit the amended disclosures to be provided outside the footnotes to the parent company’s audited annual and unaudited interim consolidated financial statements in all filings
– Require the amended financial and non-financial disclosures for as long as an issuer or guarantor has an Exchange Act reporting obligation with respect to the guaranteed securities rather than for as long as the guaranteed securities are outstanding
The SEC’s press release also summarizes amendments to Rule 3-16, which will be replaced with requirements in new Rule 13-02, high-lights for these amendments include:
– Separate financial statements for each affiliate whose securities are pledged replaced by financial & non-financial disclosures
– Disclosure required unless immaterial
Here’s the SEC’s press release summary of the new Rule 13-02 high-lights:
– Replace the existing requirement to provide separate financial statements for each affiliate whose securities are pledged as collateral with amended financial and non-financial disclosures about the affiliate(s) and the collateral arrangement as a supplement to the consolidated financial statements of the registrant that issues the collateralized security. The registrant will be permitted to provide the amended financial and non-financial disclosures outside the footnotes to its audited annual and unaudited interim consolidated financial statements in all filings
– Replace the requirement to provide disclosure only when the pledged securities meet or exceed a numerical threshold relative to the securities registered or being registered with a requirement to provide the proposed financial and non-financial disclosures in all cases, unless they are immaterial
If it seems like these amendments were a long time coming, they kind of were – John blogged about the proposed amendments back in July 2018. The amendments will be effective January 4, 2021 but voluntary compliance is permitted starting now.
SEC Calendars ‘Open Meeting’: Private Offerings on Agenda
Last week, the SEC issued a Sunshine Act notice for an open meeting scheduled for tomorrow – March 4th. Here’s the agenda saying:
The Commission will consider whether to propose rule amendments that would facilitate capital formation and increase opportunities for investors by expanding access to capital for entrepreneurs across the United States. Specifically, the proposed amendments would simplify, harmonize, and improve certain aspects of the framework for exemptions from registration under the Securities Act of 1933 to promote capital formation while preserving or enhancing important investor protections. The proposed amendments seek to address gaps and complexities in the exempt offering framework that may impede access to investment opportunities for investors and access to capital for issuers.
In December, I blogged about the proposed amendments to expand the definition of accredited investors and last summer Liz blogged about the SEC’s concept release that included discussion of a lot of topics, including among other things, whether there should be any changes to streamline capital raising exemptions, especially Rule 506 of Reg D, Reg A, Rule 504 of Reg D, the intrastate offering exemption, and Regulation Crowdfunding and the accredited investor definition. Since then, the concept release generated a lot of comment letters.
So, we’ll see what’s all included with the proposed amendments tomorrow and whether they can truly satisfy everyone. We’ll be blogging about the meeting’s outcome and will post memos as they come in.
Regular Compliance Reporting Boosts Director Confidence
A recent study from FTI Consulting and Corporate Board Member found that director confidence in internal ethics and compliance programs is declining. The study – based on interviews with over 300 public company directors – found that only 35% of survey respondents said they were “very confident” in their company’s internal compliance programs compared to 46% a year earlier. The study lists several reasons that may have contributed to declining confidence such as increased complexity of rules and regulations, pace of change and disruption and uncertainty introduced by advanced technologies.
All is not lost though, the study also found that of directors who say they receive regular ethics or whistleblower reports, only 5% of those directors reported low confidence in the company’s internal ethics and compliance programs. The study lists steps an organization can take to help bolster confidence among their directors, here’s an excerpt:
Take a hard look at the organization’s internal ethics and compliance programs and ensure they meet high standards in the following areas:
– Establish direct and autonomous reporting by the head of compliance to the board, or the audit committee
– Set formal metrics for the board to measure the effectiveness of the compliance program
– Ensure effective hotline and whistleblower processes and report activity to the board regularly
– Enhance compliance functions by using advanced technology
According to this report, Chief Audit Executives (CAEs) don’t think that companies are doing a very good job evaluating corporate governance. The report was issued by the Institute of Internal Auditors and the Neel Center for Corporate Governance at the University of Tennessee. The report says that IIA and the Neel Center partnered to develop what they call the “American Corporate Governance Index” (ACGI) that’s based on eight guiding principles of corporate governance.
The report is based on survey responses from 128 Chief Audit Executives of publicly traded U.S. companies. Survey respondents answered questions anonymously, so scores aren’t assigned to individual companies, by indicating their level of agreement or disagreement with specific statements and scenarios.
Emphasizing the difficulty in overseeing corporate governance across all levels of an organization, the report’s survey questions were designed to capture the effectiveness of corporate governance enterprise wide. Key findings include:
– 10% of Index companies scored an F
– Many companies are willing to sacrifice long-term strategy in favor of short-term interests
– More than one-third of board members are not willing to offer contrary opinions or push back against the CEO
– Boards fail to verify the accuracy of information they receive
– Independent boards drive stronger governance
– Companies are vulnerable to corporate governance weaknesses or failures – the report says that the majority of respondents reported no formal mechanism for monitoring or evaluating the full system of corporate governance
– Regulation does not correlate with stronger governance
Aside from the report’s key findings, it also said that CAE’s reported when corporate governance is formally evaluated, internal audit completes the evaluation 75% of the time, and when not, it’s often done by the GC’s office or under the direction of the board governance committee, at which point “it is more likely to be a compliance ‘check-the-box’ exercise”. Reading that CAE’s say regulation doesn’t correlate with stronger governance, regulations aside, I suspect many wouldn’t support dropping ‘check-the-box’ governance evaluations.
Insider Trading: Ex-Legal Department Employee Gets Caught
Last year, John blogged about how lawyers seemed to be getting caught in the cross-hairs of insider trading cases. It can be a little unnerving to read of these cases, especially when lawyers know better and company legal departments have policies and safeguards in place to mitigate insider trading risks.
But, here we are again. I recently saw this story about a SEC settlement involving a now ex- in-house legal department employee. According to the story, the employee, who was a legal assistant, got his hands on an update to the company’s board about a pending acquisition – the update was marked “strictly confidential”. The ex-employee then purchased shares in the target company and tipped his 86-year old father who also purchased the target’s shares. The story says the ex-employee got cold feet and sold his shares in the target but his father hung on for the acquisition announcement and resulting gain. Both the son and father agreed to pay civil penalties of about $20,000 with the father also giving up the illicit profit.
Bottom line – just don’t do it! For anyone wanting to brush-up on insider trading considerations, check out the “Insider Trading” Handbook available on our website that includes a sample insider trading policy as well as discussion of the scope and content for insider trading policies.
Our March Eminders is Posted!
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Yesterday, the SEC announced that it had instituted a settled enforcement action against actor, musician, environmentalist, martial arts master & Russian special envoy Steven Seagal for allegedly violating the anti-touting provisions of the Securities Act in connection with a digital asset offering. Here’s an excerpt from the SEC’s press release:
The SEC’s order finds that Seagal failed to disclose he was promised $250,000 in cash and $750,000 worth of B2G tokens in exchange for his promotions, which included posts on his public social media accounts encouraging the public not to “miss out” on Bitcoiin2Gen’s ICO and a press release titled “Zen Master Steven Seagal Has Become the Brand Ambassador of Bitcoiin2Gen.” A Bitcoiin2Gen press release also included a quotation from Seagal stating that he endorsed the ICO “wholeheartedly.”
These promotions came six months after the SEC’s 2017 DAO Report warning that coins sold in ICOs may be securities. The SEC has also advised that, in accordance with the anti-touting provisions of the federal securities laws, any celebrity or other individual who promotes a virtual token or coin that is a security must disclose the nature, scope, and amount of compensation received in exchange for the promotion.
According to the SEC’s order, in addition to consenting to a C&D on a neither admit nor deny basis, Vladimir Putin’s BFF agreed to disgorge all of the $157,000 in promotional payments that he received (plus interest) and to pay a $157,000 penalty. He also agreed not to promote any securities for three years.
If it’s any consolation to Louisiana’s most Googled d-lister, he’s not the first celebrity to run afoul of Section 17(b) of the Securities Act for touting a digital deal. Back in 2018, boxer Floyd Mayweather & music impresario DJ Khaled were tagged by the SEC for the same conduct.
D&O Insurance: Dealing with a Tough Market
Lynn recently blogged about the tightening market for D&O insurance. This Goodwin memo reviews some of the things that companies can do to put themselves in the best position to deal with current market conditions. In addition to careful advance planning with the company’s insurance brokers & coverage counsel, this excerpt highlights some alternatives for managing increased premiums:
Given daunting premium increases, insureds are also increasingly considering alternative ways to structure their insurance programs. For example, insureds may consider increasing the amount of their deductibles in order to reduce insurer risk, and thereby reduce the amount of premium charged (or reduce the size of a premium increase). In certain situations, insureds have also considered “captive insurance” programs to replace or supplement traditional insurance programs. (Captive insurance programs are in essence self-insurance programs owned and controlled by insureds rather than insurance companies).
Insureds may also consider reallocating more of their insurance program to so-called “Side A Difference-in Conditions (DIC)” coverage, which is less expensive coverage that is for the dedicated benefit of directors and officers only, excess of all other insurance and indemnification available to those individuals. Care should be taken with respect to any of these changes, however, in order to avoid unduly reducing important insurance protections in the event of claims.
Note the reference to “daunting” premium increases – the memo says that some companies are seeing premiums double without any change in risk profile. Deductibles for securities claims are also doubling in some cases, with IPO companies facing as much as a $10 million deductible. Yikes!
D&O Insurance: The Importance of Indemnification Agreements
With deductibles rising significantly, the importance of supplemental arrangements like “Side A” policies are well understood. But this recent blog from Woodruff Sawyer’s Priya Cherian Huskins says that the importance of individual indemnification agreements shouldn’t be overlooked – particularly given the risk that companies may opt for coverage that proves to be inadequate as premiums escalate. Here’s an excerpt:
An indemnification agreement in this context is a contract between individual director or officer and the company the director or officer serves. These agreements promise to (1) advance legal fees, and (2) pay loss (indemnification) on behalf of an individual should he or she be named in a lawsuit in his or her capacity as a director or officer of the company.
When properly structured, these agreements provide broad protection so that individuals have the right to hire a lawyer at the company’s expense from the moment they need protection, be it because they’re being investigated (including informally) by a regulator, accused of wrongdoing in a suit, or called as a witness in a case.
Directors & officers may think that they’re appropriately protected by corporate bylaws, but those often provide the company with discretion when it comes to advancement of expenses – and people can’t always rely on that discretion being exercised in their favor after they’ve departed. Indemnification agreements provide the individual with contractual rights obligating the company to defend an indemnitee, and will ensure that there’s a source of funding for those expenses so long as the company remains solvent.
Warren Buffett’s annual letter to Berkshire Hathaway shareholders came out last Saturday. It attracted the usual avalanche of media attention, but I recommend that you check out Kevin LaCroix’s particularly good write-up about it over on the “D&O Diary.” The letter contained its customary mix of insight & folksy charm, but it also once again featured a lot of griping about the Oracle of Omaha’s favorite hobby-horse, generally accepted accounting principles – specifically ASC Topic 321.
The fact that ASC 321 requires Berkshire Hathaway to mark many of its minority investments to market really frosts Buffett. He’s spilled a lot of ink on the topic – and its impact on the company’s bottom line – in each of his last 3 annual letters. Here’s an excerpt from the latest:
The adoption of the rule by the accounting profession, in fact, was a monumental shift in its own thinking. Before 2018, GAAP insisted – with an exception for companies whose business was to trade securities – that unrealized gains within a portfolio of stocks were never to be included in earnings and unrealized losses were to be included only if they were deemed “other than temporary.” Now, Berkshire must enshrine in each quarter’s bottom line – a key item of news for many investors, analysts and commentators – every up and down movement of the stocks it owns, however capricious those fluctuations may be.
Berkshire’s 2018 and 2019 years glaringly illustrate the argument we have with the new rule. In 2018, a down year for the stock market, our net unrealized gains decreased by $20.6 billion, and we therefore reported GAAP earnings of only $4 billion. In 2019, rising stock prices increased net unrealized gains by the aforementioned $53.7 billion, pushing GAAP earnings to the $81.4 billion reported at the beginning of this letter. Those market gyrations led to a crazy 1,900% increase in GAAP earnings!
Buffett’s position is that Berkshire’s a buy & hold investor, and he doesn’t think fluctuations in the value of its enormous stakes in Apple, Coca-Cola and other companies should run through its income statement. He says that just doesn’t reflect business reality for a company like his.
If GAAP Doesn’t Reflect Reality, Then Why You Mad, Bro?
It’s easy to understand Buffett’s beef with GAAP, because mark-to-market fluctuations in Berkshire’s investments add a huge amount of volatility to its bottom line. But here’s the thing – Berkshire made a business decision to take multi-billion dollar minority stakes in enormous companies. What if it had to sell one or more of those positions? That’s what ASC 321 is getting at – it shows users of the financial statements what that would look like.
That fire-sale mentality reflects GAAP’s conservative bias, and yes, it doesn’t necessarily reflect current business reality for a company sitting on a pile of cash that could fund the federal deficit, but Buffett’s allowed to tell people that – and he does, constantly. The fact that Buffett points this out doesn’t bother me, but the fact that he trashes GAAP to do it kind of does.
Of course, GAAP has its limitations, but GAAP disclosures usually provide insights into a business that shouldn’t be ignored. I’ve been practicing law long enough to know that when people constantly harp on the dirty deeds that GAAP’s doing to their company’s financial statements, it’s usually a sign that those financials are highlighting something that makes them uncomfortable.
In Buffett’s case, that “something” is likely the magnitude of the investments that Berkshire’s size compels it to make in order to move the needle – as well as the magnitude of the market risks to which those investments expose it. ASC 321 gives Berkshire no place to hide on this issue & highlights an even more fundamental question: does the Berkshire Hathaway conglomerate make sense anymore?
Restatements: A Quick Reference
When you’re as old as I am, you really develop a fondness for anything that you can quickly grab to remind you of all the things you’ve forgotten about stuff that any corporate lawyer should know. That’s why I really like this 12-page BDO guide on the fundamentals of restatements. There’s definitely enough in there on accounting changes, error corrections & reclassifications to let you fake your way through a conference call or two. Check it out!
