According to this recent WSJ article, the SEC may issue a proposal to regulate ISS, Glass Lewis & the gang as soon as this spring. Here’s an excerpt:
The SEC is expected to propose the first U.S. rules on proxy-advice companies following an organized campaign by public companies that think proxy-advisory firms have too much sway over shareholder proposals. Lobbying and advocacy groups, including the U.S. Chamber of Commerce and the National Association of Manufacturers, and stock exchanges, such as the Nasdaq and the New York Stock Exchange, have mounted a well-funded offensive against the industry, which is dominated by two firms. The groups have purchased advertisements targeting proxy advisers, sponsored a Washington think-tank event and testified at multiple Senate committee hearings on the issue.
Corporations say the advisory firms—which make recommendations to shareholders on how to vote on corporate governance issues—have too much sway over corporate decision-making. Companies argue that they spend too much time and money fighting proposals they think would be detrimental to their overall performance.
Despite the astroturf advocacy on this issue by the “Main Street Investors Coalition,” an organization that seems to have been essentially a sock puppet for NAM & the Chamber, I’m not going to pretend that I’m sorry to see that proxy advisors may finally face some sort of SEC oversight.
There’s certainly a sizeable group of people who view proxy advisors as indispensable tools for promoting shareholder democracy & believe that they should remain free from oversight. Not me. I haven’t embraced the theology of shareholder supremacy & don’t take it as revealed truth that directors should prostrate themselves before the company’s “true owners” [sic]. I also don’t think that “good governance” means reflexively endorsing any proposal that reduces the board’s power and enhances the power of whatever amorphous mass of casino capitalists happens to be holding shares at any given instant.
Once you cut through the pious propaganda from one side about “shareowner democracy” and from the other about “the perils of short-termism,” this is ultimately a cynical struggle between two powerful factions for control over who has the final say at public companies. Proxy advisors have been effectively weaponized by the investor side of that struggle, & their use should be regulated just as management’s use of its own weapons are. After all, what’s sauce for the goose is sauce for the gander.
The SEC isn’t just focusing narrowly on proxy advisors. This recent speech by Commissioner Roisman indicates that it’s also focusing on how those recommendations are used by institutional investors and how those investors ensure they are using them responsibly.
Testing the Waters: Avoiding a General Solicitation Issue
This Locke Lord blog discusses a potential issue around “testing the waters” that not many have focused on – how to maximize a company’s flexibility to pursue private financing after it’s tested the waters & opted not to pursue a public financing. The biggest concern in this scenario is the possibility that testing the waters for the public deal might be regarded as a “general solicitation” for the private financing.
Fortunately, the blog says that this outcome can be avoided if the company takes a careful approach to how it tests the waters for the potential public deal. Here’s an excerpt:
Although the SEC does not appear to have addressed this question directly, our advice and prevailing market practice is that if the test-the-waters activity is properly structured an issuer can avoid its being a general solicitation. The key to avoiding a general solicitation is carefully selecting the investors with which the issuer will test-the-waters. If the test-the-waters activity does not involve a general solicitation, there should be no concern doing a subsequent private offering, either to the investors with which the waters were tested or other investors.
The blog points out that it typically shouldn’t be too difficult to plan a test-the-waters effort to avoid general solicitation – the investors contacted will all have to be institutions, and it’s likely either the company or its banker will have a preexisting substantive relationship with them.
Blockchain: ABA’s “Digital & Digitized Assets” White Paper
The ABA’s Business Law Section just published this 353-page white paper addressing jurisdictional issues relating to blockchain technology, cryptocurrencies & other digital assets. This excerpt from a recent Paul Hastings memo summarizes the contents:
The white paper tackles a number of topic areas relevant to the ever-changing cryptocurrency and digital asset landscape, including:
– Background information regarding digital assets and blockchain technologies, including associated trading platforms, security issues, and characteristics and features of digital assets and virtual currencies;
– Regulation by the Commodity Futures Trading Commission under the Commodity Exchange Act, including the CFTC’s approach to classifying and regulating virtual currencies and related derivatives;
– The SEC’s regulation under the Securities Act, the Securities Exchange Act, the Investment Company Act, and the Investment Advisers Act, including when the SEC classifies a digital asset as a “security;”
– The interplay, and sometimes tension, between SEC and CFTC regulations;
– FinCEN regulation of digital assets, including in relation to anti-money laundering and know-your-customer requirements;
– International regulation of digital assets and blockchain technology throughout Europe, Asia, Australia, and globally; and
– State law considerations, including state law licensing requirements and state-specific regulations.
On Wednesday, the SEC approved changes to the price requirements that companies must meet to qualify for exceptions under the NYSE’s shareholder approval rules. Broc blogged about the proposal last fall – noting that it would make NYSE rules more similar to previously-approved Nasdaq updates. Maybe that’s why the SEC received zero comments in five months. Among other things, the amendments:
– Change the definition of “market value,” for purposes of determining whether exceptions to the shareholder approval requirements under NYSE Sections 312.03(b) and (c) are met, by proposing to use the lower of the official closing price or five-day average closing price and, as a result, also remove the prohibition on an average price over a period of time being used as a measure of market value for purposes of Section 312.03
– Eliminate the requirement for shareholder approval under Sections 312.03(b) and (c) at a price that is less than book value but at least as great as market value
Shareholder Engagement: Tips for Director Involvement
In this 10-page memo, DLA Piper suggests ways to use your proxy statement as a shareholder engagement tool – as well as best practices for disclosing your shareholder engagement efforts. It notes that this type of disclosure is becoming a lot more common. That’s not too surprising since according to this “Director-Shareholder Engagement Guidebook” from Kingsdale Advisors, the vast majority of large companies are now involving directors in regular shareholder engagement – and of course they want to get credit for that.
The Guidebook highlights the benefits of involving directors in engagement efforts and responds to some common objections. And whether your directors already have relationships with shareholders or you’re still evaluating the pros & cons of a direct dialogue, it provides some tips to get the most “bang for your buck.” Here’s an excerpt:
Director-level engagement has to be convenient, otherwise boards and shareholders aren’t going to keep up with the expectations that have been set. Engaging shareholders does not necessarily mean traveling and sitting down for an hour or two. Ideally boards engage face-to-face annually, perhaps on the back of board meetings or institutional investor days, but follow-up may occur over the phone or in video-conferencing.
One of the most convenient set ups we have seen (for directors) is to invite shareholders in the day after a board meeting, when the directors are already prepared and gathered for a series of back-to-back meetings. We recommend invitations to shareholders for director-level meetings come from the corporate secretary, not the IRO. This will signal shareholder engagement is a board-level priority and the meeting will not cover the same topics that may have been previously covered with management.
Engagement should take place well before proxy season, not simply because there is time, but because you will have plenty of runway to address any governance issues that come up.
Transcript: “Earnouts – Nuts & Bolts”
We have posted the transcript for the recent DealLawyers.com webcast: “Earnouts – Nuts & Bolts.”
It’s finally happened. Yesterday, the SEC announced that it’s adopted final rules to implement the “Fast Act” disclosure simplifications – which were proposed about a year & a half ago. We’ll be posting memos in our “Fast Act” Practice Area. Here are some highlights from the 251-page adopting release – and except as noted below, the rules become effective 30 days after their publication in the Federal Register:
– Item 303 and Form 20-F will allow companies to exclude discussion of the earliest of three years in the MD&A if they’ve already included the discussion in a prior filing
– Item 601(b)(2) and (10) will allow companies to omit confidential information in exhibits without submitting a CTR, so long as the information is (i) not material and (ii) would likely cause competitive harm to the company if publicly disclosed (this part of the rule is a change in procedure only, and is effective upon the rule’s publication in the Federal Register)
– Item 601(b)(10) will require only newly-reporting companies to file material contracts that were entered into within two years of the registration statement or report
– Item 601(a)(5) will no longer require companies to file attachments to material agreements, if the attachments don’t contain material information and aren’t otherwise disclosed
– Item 102 will require disclosure about physical properties only to the extent they’re material to the company
– Forms 8-K, 10-Q, 10-K, 20-F & 40-F will require companies to disclose on the cover page the national exchange or principal US market for their securities, the trading symbol, and the title of each class of securities
– “Incorporation by Reference” rules will no longer require companies to file as an exhibit any document or part thereof that’s incorporated by reference in a filing – but instead will require them to provide links to documents incorporated by reference
– Forms 10-K, 10-Q, 8-K, 20-F & 40-F will require Inline XBRL tags on the cover page (this part of the rule has a three-year phase-in)
– Form 10-K will no longer have a checkbox to show delinquent Section 16 filers, the Item 405 heading to be used within the proxy is now “Delinquent Section 16(a) Reports,” and the heading should be excluded altogether when there are no delinquencies to report
– Item 503 (risk factors) will become new Item 105 – and the list of example risk factors is being eliminated from the rule in order to emphasize that it’s principles-based
Business Development Companies: SEC Proposes Offering Reforms
Yesterday, the SEC proposed Securities Act amendments to streamline the offering process for business development companies and registered closed-end funds – by expanding the “WKSI” definition, among other things. Here’s the 361-page proposing release – we’ll be posting memos in our “Business Development Companies” Practice Area.
NYSE’s “eGovDirect” Decommissioned
According to a notice sent to listed companies, the NYSE is planning to decommission “eGovDirect” at the end of next week. Everything will be migrated to the exchange’s “Listing Manager” system. The “Listing Manager” will also be enhanced to allow submission of press releases and supplemental listing applications. Here’s more detail:
Current users of eGov, who do not have accounts on Listing Manager, will need to work with their Listing Manager administrator to obtain access to the new reporting platform. Alternatively, users can contact the NYSE at ListingManager@nyse.com or 212-656-4651 to request access – or to discuss any questions or concerns. Please note that eGov login credentials will not work on the new Listing Manager website.
HOW WILL THIS IMPACT ME?
– If you have an interim written affirmation record in progress, you will have to complete the submission in eGov no later than a) the affirmation’s due date or b) by 5:00PM EST on March 29th (whichever is earlier)
– If you have an annual written affirmation record in progress, this will be migrated to Listing Manager as an open record. You will have the chance to complete your submission online once you obtain access to the website
– If you recently submitted your shareholder meeting dates in eGov, you do not have to re-enter the information in Listing Manager
– Previously completed written affirmations in eGov will not be available in Listing Manager, but a copy can be provided by an NYSE representative
– CAM Basics – a high-level overview of the required “CAM language” that will be added to auditors’ reports, and the quality review & documentation requirements for CAMs
– Determination of CAMs – FAQs on how to identify CAMs, e.g. how they differ from the company’s critical accounting estimates
– Review of Audit Methodologies – observations based on a review of audit firms’ “dry run” CAM methodologies, training materials & practice aids
The guidance is based on the PCAOB’s discussions with audit firms that collectively audit 85% of large accelerated filers, as well as other outreach efforts. All three documents emphasize the company-specific nature of CAMs and related reporting, the broad scope of information that auditors will look at to identify and address CAMs, and the role of the auditor versus the audit committee & management. Here’s a few nuggets:
– CAMs are drawn from matters required to be communicated to the audit committee — even if not actually communicated — and matters actually communicated — even if not required. The standard does not exclude any required audit committee communications from the source of CAMs.
– When identifying CAMs, AS 3101 requires auditors to consider the six factors in the standard as well as other factors specific to the audit
– Descriptions of CAMs – and how they were addressed – are required to be specific to the circumstances – i.e. auditors can’t just restate that they identified “a matter involving especially challenging, subjective or complex auditor judgment,” or generically say they tested internal controls to address the CAM
– Auditors aren’t expected to provide non-public information in their report unless it’s “necessary to describe the principal considerations that led the auditor to determine that a matter is a CAM or how the matter was addressed in the audit” – and “public information” includes press releases, etc. – not just financials
– Although audit committees are entitled to a draft of the auditor’s report and a dialogue about CAMs (and any sensitive information) is expected, CAMs are the responsibility of the auditor, not the audit committee
Auditor Ratification: Tenure Not a Factor for ISS?
This memo from EY/Tapestry Networks summarizes a meeting among audit committee chairs & ISS to discuss potential changes to the factors considered by the proxy advisor for its voting recommendations on auditor committee matters, including auditor ratification. While ISS isn’t making immediate policy changes, it’s trying to understand whether financial reporting shortcomings share red flags that signal a relationship should be reconsidered. Audit chairs cautioned against a more formulaic approach. On the topic of tenure, this dialogue occurred:
While audit firm tenure is one possible factor in evaluating auditor independence, members were cautious about proxy advisory firms using this metric as well. Several members noted that auditor tenure is an ineffective data point that further limits competition and a company’s ability to select the best firm. Others emphasized the difficulty of changing audit firms: “There’s turmoil when you change auditors; these are massive projects.” On the issue of partner tenure, members generally agreed that the current five-year rotation requirement in the United States should make this a non-issue.
Mr. Goldstein agreed on both auditor and partner tenure: “We don’t expect to use tenure in our guidelines. Partner rotation already exists.” Mr. Goldstein sought to reassure the audit chairs by describing the factors ISS considered in making a recommendation against the ratification of KPMG as GE’s external auditor. “Long tenure as GE’s auditor was not a reason for our recommendation,” said Mr. Goldstein. “KPMG had given GE a clean bill of health for many years, and then there was a surprising large write-off related to their legacy long-term care insurance business, followed by an SEC investigation. There were other concerns and enough questions for us to take what, for us, was a radical position.” Mr. Goldstein elaborated that part of ISS’s concerns in the GE case stemmed from the criticism of KPMG’s work as the auditor of Carillion. Members again cautioned that ISS be careful before connecting a firm’s performance on one audit in a particular country with its work on another audit in another country.
Transcript: “How to Use Cryptocurrency as Compensation”
We’ve posted the transcript for the recent CompensationStandards.com webcast: “How to Use Cryptocurrency as Compensation.” The agenda included:
1. Defining “Cryptocurrency”
2. Securities Implications
3. Tax Implications
4. Accounting Implications
5. Other Applicable Regulations
6. Why Digital Assets Are Attractive To Entrepreneurs
7. Types of Crypto Compensation Structures
8. Drafting Issues For Plans & Awards
9. Token Plan Administration
10. When Using Crypto Doesn’t Make Sense
It’s no surprise that the uncertainty surrounding Brexit continues to impact business – I blogged last month that it might be one of this year’s “top risks.” And in December, I wrote that the SEC is monitoring disclosure.
In remarks late last week, Corp Fin Director Bill Hinman reiterated that the UK’s withdrawal from the European Union may be material not just to UK- and EU-headquartered companies – but to any company with extensive international operations – and explained how companies should be applying the SEC’s “principles-based” disclosure rules to Brexit’s evolving business risks (he also touched on sustainability disclosure, as noted in this blog from Stinson Leonard Street).
Bill shared six topics for companies to consider as a starting point when assessing & drafting tailored Brexit disclosures. This Cooley blog highlights that these are the types of questions Corp Fin will be asking during their disclosure reviews. And this “D&O Diary” blog provides further analysis, along with an abbreviated “cheat sheet”:
1. Is the business exposed to new regulatory risk given the uncertainty of which set of laws and regulations will apply and whether transition agreements will be in place?
2. Are there significant supply chain risks due to the potential disruption to the U.K.’s access to free trade agreements with other nations and any resulting changes in tariffs to exports or imports?
3. Does the company face a material risk of losing customers, a decrease in sales or revenues or an increase in costs due to tariffs or other factors? Is the demand for the company’s product especially sensitive to exchange rates or changes in tariffs?
4. Does the company have exposure to currency devaluation, foreign currency exchange rate risk or other market risk?
5. What is the company’s exposure to contractual risk in the face of Brexit? Has the company undertaken a review of its existing contracts with counterparties in the U.K. or the EU to determine whether renegotiation or termination is necessary in light of contractual obligations?
6. Do Brexit-related issues affect financial statement recognition, measurement or disclosure items, such as inventory write-downs, impairments, collectability of receivables, assumptions underlying valuations, foreign currency matters, hedge accounting, or income taxes?
Glass Lewis announced that it will pilot a new Report Feedback Statement (RFS) service to a limited number of U.S. public companies and shareholder proponents during the 2019 proxy season. According to Glass Lewis, the purpose of the RFS service is to allow companies and shareholder proponents to “more fully and directly express their views on any differences of opinion they may have with Glass Lewis’ research.”
The RFS service is to be used to report on differences of opinion — not factual errors, which companies should continue to communicate to Glass Lewis. Companies and shareholder proponents may submit statements noting their differences of opinion with Glass Lewis’ analysis of their proposals to Glass Lewis’ research and engagement team. That team will then distribute the statements, without editing or modifying the content, directly to Glass Lewis’ 3,000+ investor clients along with Glass Lewis’ response to the RFS.
Participants may submit a request to subscribe to the RFS service; Glass Lewis will accept requests on a first-come-first-served basis. The maximum number of pilot participants will be 12 companies and/or shareholder proponents per week between March and May 2019 (subject to decrease if the statements received in any week are particularly long or complex).
Free CLE for In-House Lawyers
I recently noticed on LinkedIn that some of my in-house connections have been panelists for a new CLE provider -“In-House Focus.” IHF is focusing on including case studies from current in-house lawyers, and has committed to using diverse faculty. And according to this announcement, they’re offering nine free video programs as part of their launch. Topics include legal operations, privacy, IPOs and government investigations.
After Broc blogged last week about GE’s “Letter to Shareholders,” a few loyal readers reached out to gush about the proxy statement that was recently filed by Regions Financial. One person said it was “unreal – totally changes expectations around proxy disclosures.” And this comment explains why:
It’s like a proxy statement, proxy advisory data report on governance practices, consolidated sustainability report and review of every shareholder hot topic rolled into one. It’s worth checking out if you’re looking for sample proxy disclosure on virtually any topic – it was even cited by CII in its recent report on best practices for board evaluation disclosure.
This is not to comment on the merits of any of their programs or practices, which I haven’t reviewed, just the scope of disclosure. I do note they have enjoyed strong voting support, but clearly they aren’t resting on their laurels in that respect. And that’s a good lesson for every company, even if you don’t have the resources to prepare a proxy like Regions’.
Sustainability: How to Talk So Investors Will Listen
This PwC memo says the “safe zone” of ESG reports & communications is quickly disappearing as investors get more aligned in the type of info they’re looking for – and continue to integrate ESG criteria into decision-making by investment officers & PMs, rather than just the stewardship team.
You’re likely familiar with the “safe zone” – it’s sustainability reporting that calls out a ton of company accomplishments…but it doesn’t quantify their impact on the bottom line, and there’s no convincing link to business strategy. From an investor’s view, it’s a start – but it’s not going to ensure the company avoids the biggest global risks that are coming down the pike, or that it’s positioned to capture a competitive advantage. A recent 40-page report from Ceres offers some strategies to improve your positioning – and engagement – on this topic. Here’s one takeaway, as summarized in this Cooley blog:
Use language that investors understand and value. One goal of the IR team should be to “communicate the company’s values and strategies using language that investors understand” — including, where appropriate, financial terms such as margin and EPS, as well as business concepts such as risk mitigation, cost avoidance, revenue growth and competitive differentiation — thus positioning sustainability in the context of business performance.
To permit investors to incorporate sustainability into their valuations, companies should discuss sustainability investments, risks and benefits “through the prism of [practical business concerns such as] supply chain resilience, stranded asset avoidance, cost savings and efficiency, improved product performance, consumer acquisition and increased employee retention.” Notably, some asset managers do not position their questions as “sustainability” questions per se, but may instead frame them strictly as financial issues, such as supply chain stability.
According to Ceres, one “constant refrain” heard from investors is that “if a company is not talking about its sustainability strategy and performance, they may conclude the company does not have a story to tell or, even worse, it’s hiding something.”
Preparing for “CEO Activism”
There’s a perception that CEOs have become more willing in recent years to speak out on controversial social & political issues. It’s still pretty rare, but that doesn’t mean you shouldn’t prepare for the day when your company’s leader wants to take a stand. We’ve blogged about the public and investor reactions to this double-edged sword – and we’ve been posting even more resources in our “Crisis Management” Practice Area. In this WSJ article, two B-School profs offer tips on when CEOs should take a stand – and how to speak out effectively. Here’s the takeaways:
CEOs should take a stand when:
1. The nudge comes from their employees
2. Their corporate or personal values – and corporate practices – align with the issue at hand
3. The issue is “live”
CEOs who speak out should:
1. Set up a rapid response team
2. Anticipate backlash
3. Work with the communications team
I dig it, man! I don’t think of myself as someone that likes trivia games – nor do I commute since I work at home. But after playing “Drivetime” just once, I was hooked. Same with my wife. It’s a mobile app that you play while you drive (and you can also play when not driving if you’re so inclined).
Here’s five things to know:
1. Feels like a traditional “morning commute” radio show. Drivetime uses professional voice actors (with personality & humor) as their hosts, akin to radio show hosts. The Drivetime hosts – always two at a time as they verbally jab back & forth – provide interesting facts & color commentary as they deliver the trivia questions.
2. So here’s the twist on the traditional show format: you’re a participant (ie. interacting) in the show because you’re answering trivia questions that the hosts throw out.
3. You answer questions by talking to your phone (which can be resting on the seat next to you, etc.). Most questions are multiple-choice. But occasionally there are open-ended ones. You earn points along the way depending on how well you answer the questions (values increase as the questions become harder).
4. Each time you play Drivetime, you compete against someone else (actually, three other commuters because there are three segments on the show; you compete against a new person during each segment). Either the app chooses another commuter for you (“good luck next time, Jared”) – or you can adjust your settings to go head-to-head against your friends that also have downloaded the app. You’re told how you’re progressing in the competition as you go.
Love the British dude who indicates whether you’re winning, losing or in a tie. He’s a synthetic voice known as “Miles.”
5. The bottom line – the experience is a combination of entertainment & a game. Next level stuff.
Studies show that if you’re engaged mentally while driving, there’s less risk of being in an accident (if you’re doing so in a “hands-free” manner). So Drivetime arguably makes your drive safer. Learn more in this Voicebot podcast with Drivetime’s CEO Niko Vuori…
Transcript: “Audit Committees in Action – The Latest Developments”
We’ve posted the transcript for our recent webcast: “Audit Committees in Action – The Latest Developments.”
What If the SEC’s Adopting Releases Were in Video Format?
In this ‘Bass Berry’ blog, Jay Knight notes how the FASB recently released a video explaining a new accounting standard. He wonders if the SEC would consider doing something similar. Since the FASB video is only 90-seconds long, perhaps the SEC could – but would it be worth it?
Here’s an anonymous poll so you can provide your thoughts:
Last summer, Liz blogged that Broadridge was redesigning its “Vote Instruction Form” in response to Corp Fin feedback and to provide a better user experience. The new design is now in effect – and available along with other resources on Broadridge’s website. Here’s the enhancements:
– Company name more prominent
– Larger, more identifiable control number
– Voting instructions specific to agenda
– Voting section separated for clarity
– No abbreviations of shareholder proposals
Second Circuit Holds “General Statements of Regulatory Compliance” Not Actionable
As noted in this ‘Cleary Gottlieb’ memo, the Second Circuit – in Singh v. Cigna – issued yet another strong decision rejecting the tactic of a company being sued after it announced bad news or corporate mismanagement based on general statements made by the company about its compliance with regulatory requirements or its own ethics policies and procedures.
Transcript: “Conflict Minerals – Tackling Your Next Form SD”
We have posted the transcript for our recent webcast: “Conflict Minerals – Tackling Your Next Form SD.”
Here’s something that Liz blogged about on CompensationStandards.com: One of the most frequent questions we get about this year’s pay ratio disclosure is, “How much detail is necessary if you’re not rerunning the ‘median employee’ calculation?” In other words, you’re either using the same median employee – or one of the alternates – that you identified last year. A timely blog from Stinson Leonard Street’s Steve Quinlivan provides examples from four recent filers.
You’ll see that the companies didn’t get too elaborate. All of them basically parrot Instruction 2 to Item 402(u) – i.e. they say they used the same median employee (or an alternate) since there was no change in the employee population or employee compensation arrangements that they believed would significantly change the pay ratio disclosure. And since Steve notes in this blog that he’s found zero Corp Fin comments so far on pay ratio disclosures, that’s probably just fine.
Tomorrow’s Webcast: “The Top Compensation Consultants Speak”
Tune in tomorrow for the CompensationStandards.com webcast — “The Top Compensation Consultants Speak” — to hear Mike Kesner of Deloitte Consulting, Blair Jones of Semler Brossy and Ira Kay of Pay Governance discuss these topics:
– Second year of pay ratio
– Evolution of clawbacks
– Adjustments to incentive plan actual performance or goals & goal-setting plans
– Incorporating E&S metrics into plans
– How to handle pay equity & gender/ethnicity pay gaps
– The changing role of the compensation committee
“Valley of the Boom”: Loved It
Have you seen the 6-part miniseries from National Geographic called “The Valley of the Boom“? Very well done (I don’t know why the ratings on Metacritic aren’t higher). Brought back lots of memories from the mid-90s when I earned my stripes as the “Internet guy” in Corp Fin.
It’s the most entertaining thing I’ve seen on the Internet boom. A mix of a documentary and a reenactment of how things played out at Netscape, TheGlobe.com (which was Facebook before Facebook) and a scam artist who actually had high quality video streaming before anyone else. The documentary part has remarks from those who were at Netscape & Microsoft (remember the “browser wars”?), as well as commentary from celebrities like Mark Cuban and Arianna Huffington…
We’ve been blogging about the bills in Congress seeking to change stock buybacks practices (here’s the latest). Expounding on prior research he conducted last summer, SEC Commissioner Robert Jackson sent this letter to the Senate last week providing further evidence to show that corporate insiders are using buybacks to cash out.
Here’s a MarketWatch article noting that, at a Senate Banking Committee hearing, SEC Chair Jay Clayton said that he thought Jackson’s results may be coincidental, since that timeframe may coincide with when companies open their trading window for insiders. To investigate Clayton’s comment about it being potentially coincidental, Jackson extracted data on all buybacks for a two-year period – estimating the length of pre-announcement trading blackouts, since companies have different policies.
But even after taking pre-announcement differences into account, Jackson found that, on average, executives sell more stock after they announce a buyback than on an ordinary day. 38% of the companies conducting buybacks had no trading in the 30 days prior to their buyback announcement date – but a majority had insiders making their own transactions during the eight days after a buyback was announced.
More on “SEC Seeks Contempt Order for Tesla’s Musk Over New Tweet”
Recently, Liz blogged about Tesla’s Elon Musk tweeting some production stats without getting internal pre-approval and the SEC subsequently filing a motion for contempt. This CNBC article contains some analysis of how the court may rule. Yesterday, Musk’s responded that the SEC is infringing on his 1st Amendment “freedom of speech” rights and that his tweets didn’t violate his settlement agreement with the SEC (here’s his court filing). I imagine we will get a court ruling soon.
Meanwhile, institutional investors have filed a lawsuit in the Delaware Court of Chancery seeking a declaratory judgment against Elon and Tesla’s board for violation of their fiduciary duty, injunctive relief relating to the Twitter use and monetary damages…
– Two Recent Delaware Decisions Provide Practical Transaction Guidance
– Antitrust Merger Review: The Worst Case is Worse Than You Think
– Cross-Border Carve-Out Transactions: Due Diligence and Purchase & Sale
– Shareholder Activism: Nine Lessons Learned
– The Couple in the Conference Room
Remember that – as a “thank you” to those that subscribe to both DealLawyers.com & our Deal Lawyers print newsletter – we are making all issues of the Deal Lawyers print newsletter available online. There is a big blue tab called “Back Issues” near the top of DealLawyers.com – 3rd from the end of the row of tabs. This tab leads to all of our issues, including the most recent one.
And a bonus is that even if only one person in your firm is a subscriber to the Deal Lawyers print newsletter, anyone who has access to DealLawyers.com will be able to gain access to the Deal Lawyers print newsletter. For example, if your firm has a firmwide license to DealLawyers.com – and only one person subscribes to the print newsletter – everybody in your firm will be able to access the online issues of the print newsletter. That is real value. Here are FAQs about the Deal Lawyers print newsletter including how to access the issues online.
