Back in December, Stinson’s Steve Quinlivan spotted the first CAM. Now we owe him another hat tip for finding the first few CAMs in audits issued by the “Big 4” accounting firms – see page 93 of Microsoft’s Form 10-K and page 107 of Open Text’s Form 10-K. Both companies had a CAM relating to revenue recognition. Steve noted in his blog (also see his follow-up entry):
The CAM is straightforward and does not reflect negatively on the company or its audit committee or cast doubt on its financial reporting. If anything, it most likely reflects an attitude by the auditor that “we have to find something to protect us in the case of a PCAOB inspection.” I think revenue recognition CAMs are going to become somewhat boiler plate and not likely to attract a lot of attention absent special circumstances.
Auditor Attestations: No Shortage of Comments on SEC Proposal
The comment letters have been rolling in on the SEC’s proposed amendments to the “accelerated filer” definition – which would make fewer companies subject to the auditor attestation requirement. Predictably, accounting firms aren’t in favor of the change and say that it would weaken the quality of financial reporting (here’s EY’s letter as an example). CII has also joined that camp – its letter argues that the amendment may cause investors to lose confidence in the integrity of financial statements.
CII also takes issue with the SEC’s economic analysis of the proposal – by citing to another recent comment letter from four B-School profs. That letter adds data to the assertion that some companies can’t be trusted to report material weaknesses when left to their own devices (as does this blog about Canada’s experience with a similar rule). Here’s an excerpt from this WSJ article about the letter and its underlying study:
More than 100 companies that could get relief have reported restatements that altered combined net income by $295 million from 2014 through 2018, according to a comment letter from researchers at Stanford University, the University of Pennsylvania, the University of North Carolina and Indiana University. Eleven of the restatements occurred in 2018 and wiped out about $294 million in market value, the researchers wrote.
One company in the group is Insys Therapeutics Inc., said Prof. Taylor, who co-wrote the letter. Insys, an opioid manufacturer whose market value peaked at $3.2 billion in 2015, sought bankruptcy protection in June after pleading guilty to bribing doctors to boost use of its spray version of fentanyl, a synthetic opioid. It agreed to pay $225 million in fines and forfeiture.
Insys effectively failed the internal-controls audits in 2015 and 2016, according to securities filings. The company later restated results for several quarters in 2015 and 2016. The company said at the time that neither fraud nor misconduct caused the errors. Auditors in 2017 and 2018 reported its internal controls were free from material weaknesses.
The comment letter emphasizes that the analysis in the SEC proposal quantifies the cost of internal control audits – but not the potentialbenefits. Of course, there are two sides to this heated debate – and the WSJ article also emphasizes the high cost of compliance for smaller companies, and that investing that money in the core business rather than compliance could improve returns for shareholders…there are letters supporting the proposal from Nasdaq, the Chamber, Proskauer and a score of life science companies, among others.
Sarbanes-Oxley Compliance: Still a Lot of Work, But Automated Controls Might Help
There was a slight decrease in Sarbanes-Oxley compliance costs last year – according to Protiviti’s annual survey on the topic – but spending remains significant ($1.3 million on average among large accelerated filers – and that excludes external audit fees). In addition, hours & control counts continue to increase. Protiviti predicts that new technologies – along with a desire to strengthen controls and (finally) lower costs – will usher in “SOX Compliance 2.0.” Here’s an excerpt:
A growing number of SOX executives recognize that more dramatic improvements, fueled by a new mindset and advanced technologies, are required. To illustrate, our results reveal that the use of analytics has jumped significantly and that a broader range of compliance activities are being subjected to advanced technology — with even more plans to do so in the future. It also appears many organizations are huddling with their external auditors to figure out how the auditor’s use of advanced automation can deliver greater compliance effectiveness.
Protiviti also found that the use of automated controls testing is increasing, more companies are using outside providers for Sarbanes-Oxley compliance, and cybersecurity is substantially increasing compliance hours. Nearly half of companies said they were now required to issue a “cybersecurity disclosure” based on guidance from the SEC & Corp Fin.
The SEC announced that it’s holding an open Commission meeting this Thursday – August 8th – to consider whether to propose rule amendments to modernize these Regulation S-K disclosure requirements:
1. Business Description
2. Legal Proceedings
3. Risk Factors
I’ll admit that my first reaction to this news was, “Didn’t they already do this (twice) last year?” But then I remembered that the 341-page Reg S-K concept release from 2016 went well beyond the Fast Act and Disclosure Update & Simplification amendments. We don’t know yet whether a proposal coming out of this meeting – if any – will address any of those ideas (the agenda just says that any proposal would be intended to update these rules to account for developments since their adoption or last amendment, to improve these disclosures for investors, and to simplify compliance efforts for companies). We’ll keep you updated in any event.
By the way, we’ve overhauled about 4000 pages of our “Handbooks” to reflect the latest disclosure requirements, accommodations and best practices – including all of the Fast Act and Disclosure Update & Simplification amendments. They’re a great resource for making sure that your forms & disclosures are up to date.
Board Diversity: S&P 500 No Longer Has Any All-Male Boards
A couple weeks ago, the WSJ reported that all S&P 500 boards now include at least one female director – a pretty significant milestone, given that one in eight boards in that index were all male as recently as 2012. The “Thirty Percent Coalition” – which coincidentally was formed by investors in 2012 with the goal of improving female representation – also announced that 85 companies appointed a woman to their board for the first time during the last year and that more company boards include a woman now than at any other time since the campaign launched.
Of course, there are plenty of companies outside of the S&P 500 that haven’t diversified – and as this Korn Ferry blog points out, business benefits are best realized when 20-30% of the board is “diverse.” The Thirty Percent Coalition’s investors will be asking companies to undertake the following:
1. Disclosure in the Proxy of board composition inclusive of gender, race, and ethnicity
2. Language committing to diversity in Governance charter
3. Disclosure of future plans to make progress on board diversity
4. Adaptation of the “Rooney Rule” for board candidates and senior leadership (investors want each company to commit to include women & people of color in every pool from which Board nominees are chosen and to state this in their Board Refreshment Policies and/or Nominating & Corporate Governance Committee Charter)
5. Consideration of candidates outside of CEOs for board positions.
Tomorrow’s Webcast: “Joint Ventures – Practice Pointers (Part II)”
Tune in tomorrow for the DealLawyers.com webcast – “Joint Ventures: Practice Pointers (Part II)” – to hear Troutman Sanders’ Robert Friedman, Proskauer’s Ben Orlanski, Cooley’s Marya Postner and Aon’s Chuck Yen provide an encore to our popular June webcast with even more practical advice on navigating your next joint venture. The topics include:
1. Joint Ventures vs. Contractual Collaboration
2. IP Issues: JVs Based on An Owner’s Platform Technology
3. Negotiating “Divorce” Up Front
4. Consider Piloting a JV Before Full Commitment
5. Majority/Minority Dynamics
6. Acting By Written Consent
7. Clarifying JV’s Purpose
8. Pay Principles: Benchmarking & Long-Term Incentives
9. How Key Pay Decisions Are Made
Recently, a member asked this in our “Q&A Forum” on CompensationStandards.com (#1287):
Instruction 10 to Item 402(u) provides that, where there is a CEO transition, the registrant may use the “PEO serving in that position on the date it selects to identify the median employee and annualize that PEO’s compensation.” Since the new CEO would, of course, not have been the CEO when the Year 1 median employee was selected, would this mean that, whenever the registrant has a CEO transition and wishes to annualize the new CEO’s compensation for purposes of the pay ratio, it needs to identify a new median employee on a date when the new CEO was serving? Thanks.
In response, I noted:
This was a fairly common point of discussion this past year – and just this week – at the JCEB meeting and the consensus was that the change in CEO is not intended to override the ability to use the prior year’s median employee determination process. This is just one area where language in the rule is imprecise in a number of areas when applied in the ‘Year 2’ context.
What’s the “Latest Practicable Date” for S-4 Comp Tables?
Some of us have been internally debating what the “latest practicable date” means for purposes of S-4 compensation disclosures. There often are public-public deals with S-4 filings that are updated and amended four or five times before going effective six months after the S-4 is first filed with the SEC. In these S-4s, they start describing all the compensation arrangements as they are back at signing – but six months later, the company is still using some date that is quite a bit earlier (or, in some cases, a future date that is expected to be the closing) to show compensation “as of the latest practicable date.”
Here are various thoughts from folks that I reached out to:
– For a long time, I’ve trying to connect the dots of “latest practicable date” and compensation disclosures and S-4. I can’t find anywhere in S-4 itself that references “latest practicable date” and I only found a few references of it in Item 402 of Regulation S-K – (1) with respect to not being able to calculate salary or bonus and so you would provide it in a Form 8-K, and (2) with respect to golden parachute compensation. I don’t think item (1) would apply for an S-4 as an issuer would theoretically already have get this squared away for its 10-K. As such, I assume we are referring to calculating golden parachute payments where we pick a triggering date as of the latest practicable date and that the payment is based on a price that is not yet determined (such as a stock price).
– My personal approach to “latest practicable date” (a similar term is used in Item 403 for stock ownership tables – “most recent practicable date”) is to update the information so that by the time the registration statement is declared effective, it provides substantively materially accurate information within a reasonable period of time. In other words, as always said by the SEC, “it depends on the facts and circumstances” and don’t make any material misstatement or omissions. My goal would be to set up a calculation so that you can plug in the variable for the answer. This means your comp information could be within 1-3 weeks of going effective (based on filing and amendment and then getting SEC sign-off). If it makes sense, you could also use a variable approach showing payments at different levels based on different assumptions (e.g., high/medium/low).
Generally, executive comp tables must include the last completed fiscal year. Consider CDI Regulation S-K, Ques. 117.05 with regards to updating comp tables in an S-1 or an S-3. Also make sure you are comfortable that there are no material misstatements or omissions. I would also consider providing updates to the extent that there have been changes made in disclosures pursuant the acquisition agreement (e.g., in the disclosure schedules).
– Our view is that (leaving aside how material the volume of comp data really is), we would go with less is more so would leave it until there’s a specific rule or comment to change it. If there’s no SEC comment, we think a lot of S-4 issuers leave well enough alone, so they don’t have to take another cut at comp beyond once for S-4 purposes. Even if perhaps “latest practicable date” means that comp really should be updated to final, that’s easier said than done and sometimes impacts the type of prospectus that can be used and seems more trouble than it’s worth (not to mention the legal costs)).
– If the deal straddles two fiscal years, and forward incorporation by reference is not available, I would probably advise the registrant to roll forward when new annual numbers become available. Otherwise I’ve never thought of the executive compensation tables as ones that had to be updated more frequently than that.
– In most other contexts where “latest practicable date” or “recent practicable date” is used, I’ve had the Corp Fin Staff comment if it wasn’t in the last month or two. I would think the other issue, from a shareholder vote perspective (for deals where there is a vote) is making sure the s/h has all the material information they need to make an informed vote.
– I assume this is talking about the golden parachute comp disclosures, in which case it doesn’t seem like the Staff is too focused on those and my hunch is that companies get away with sticking with the initial date used in the first filing. The few deals I’ve been involved in that have included this disclosure haven’t been updated, but none of those were long registration processes. But I bet if you actually asked the Staff, they’d say it should be updated as time passes.
My blog earlier this week about Inline XBRL caused a stir. It appears that a majority of large accelerated filers forgot to make changes caused by Inline XBRL to the exhibit index for the 2nd quarter 10-Qs they recently filed. We’ve fielded a number of follow-up questions in our “Q&A Forum” (see #9960). If you’re wondering what you should do, check that out. If you already filed a 10-Q without expressly referencing exhibit 104, it’s not something to be too concerned about as I highly doubt this is a high priority for the SEC Staff…
SEC Chair Clayton on Short-Termism & ESG Disclosure
In this blog, Cooley’s Cydney Posner summarizes SEC Chair Clayton’s “E&S disclosure” thoughts captured recently in this “Directors & Boards” article. Cydney notes his commentary is nuanced – and it dovetails with a number of prior remarks on this topic by Chair Clayton and Corp Fin Director Hinman…
Our August Eminders is Posted!
We’ve posted the August issue of our complimentary monthly email newsletter. Sign up today to receive it by simply inputting your email address!
Last week, Moody’s Investors Service published a scoring framework for assessing the governance characteristics of public companies not in the financial service area. Moody’s has scored governance for quite some time, but that was for their credit ratings business – this is a new “governance ratings” framework that stands alone. In other words, Moody’s has long incorporated governance issues into their credit ratings, but this is a new “Governance Assessment” which is separate from their credit ratings. But of course, the analysis for the two types of ratings will be somewhat related – you can think of it as a more comprehensive evaluation of the relevant governance factors that already contribute to a rating.
The new “GAs” provide stand-alone assessments of certain aspects of governance risk relative to defined benchmarks considered from the perspective of the potential impact on creditors. Five key components underpin Moody’s GA scores – ownership and control, compensation design and disclosure, board of director oversight and effectiveness, financial oversight and capital allocation, and compliance, controls and reporting. Each of the five components are scored by assessing several subcomponents.
GAs are expressed using a four-point scale between GA-1 and GA-4. Companies assessed at GA-1 have overall governance practices that generally score at the highest level based on our framework. Companies assessed at GA-4 have overall governance practices that generally score at a lower level.
Data used to conduct GA are sourced only from public disclosures like regulatory filings and investor presentations. Where disclosure is lacking, Moody’s GA will penalize the company and result in a less favorable score relative to the benchmark.
5 Takeways From the Proxy Season
In our “Proxy Season Developments” Practice Area,” we are posting the many reports recapping the recent proxy season as usual – including this note from EY’s Center for Board Matters that lists the top five takeaways…
Also see this blog by BlackRock’s Barbara Novick that has a host of stats for the proxy season…
More on “The Mentor Blog”
We continue to post new items daily on our blog – “The Mentor Blog” – for TheCorporateCounsel.net members. Members can sign up to get that blog pushed out to them via email whenever there is a new entry by simply inputting their email address on the left side of that blog. Here are some of the latest entries:
– What’s the “Long Term Stock Exchange”?
– Director Overboarding: The Latest Stats
– Board Recruitment: More Companies Looking for IR Expertise
– Attorney-Client: Preserving Privilege in a Crisis
– Expert Witnesses Aren’t Always Experts at Being Expert Witnesses
These Principles have also been updated to address SRD II with ‘avoidance’ added to ‘management’ of conflicts-of-interest with regard to the policy which should be disclosed. It also responds to feedback from the 2019 BPP Stakeholder Advisory Panel, acknowledging that conflicts of interest will always exist; therefore it is incumbent upon the BPP Signatories to have proper policies in place to try to avoid such conflicts wherever possible and when they do arise, to be transparent and manage them properly. The 2019 BPP Review Stakeholder Advisory Panel also reiterated the importance of the more stringent updated “Apply and Explain” approach for BPP Signatories to follow in light of SRD II Article 3j in relation to the Principles.
Another further area the updated Principles focused on was delineating the scope of proxy advisors’ responsibilities versus those of investors, in light of continued market misperceptions regarding the alleged overinfluence of proxy advisors and/or alleged “robo-voting” on the part of investors.
CEO Removals: Reputation Beats Financial Performance? Does Your Clawback Match?
During our upcoming “Proxy Disclosure Conference,” we have a panel devoted to the #MeToo era and how it might impact how your clawbacks (should) work. This PwC study shows how more CEOs were dismissed in the last calendar year for ethical lapses than for financial performance or conflicts with the board. So updating your clawback policies might be appropriate…
Reduced Rates Expire at End of This Friday: Our “Proxy Disclosure Conference”
– The SEC All-Stars: A Frank Conversation
– Hedging Disclosures & More
– Section 162(m) Deductibility (Is There Really Any Grandfathering?)
– Comp Issues: How to Handle PR & Employee Fallout
– The Top Compensation Consultants Speak
– Navigating ISS & Glass Lewis
– Clawbacks: #MeToo & More
– Director Pay Disclosures
– Proxy Disclosures: 20 Things You’ve Overlooked
– How to Handle Negative Proxy Advisor Recommendations
– Dealing with the Complexities of Perks
– The SEC All-Stars: The Bleeding Edge
– The Big Kahuna: Your Burning Questions Answered
– Hot Topics: 50 Practical Nuggets in 60 Minutes
Reduced Rates – Act by August 2nd: Proxy disclosures are in the cross-hairs like never before. With Congress, the SEC Staff, investors and the media scrutinizing disclosures, it is critical to have the best possible guidance. This pair of full-day Conferences will provide the latest essential—and practical—implementation guidance that you need. So register by August 2nd to take advantage of the discount.
Don’t forget that Inline XBRL (known as “iXBRL”) tagging will be required for Form 10-Q filings by large accelerated filers this quarter, following the June 15th phase-in period set by the SEC. This means that for many large calendar year-end companies, second quarter 10-Qs should be tagged with iXBRL, as well as the cover page of any “subsequently filed” Form 8-K. Skadden’s Ryan Adams reminds us of a few items that may have gone under the radar as companies begin to implement these changes, including a few potentially surprising new requirements in the exhibit index:
The Instructions to 601(b)(101) of Regulation S-K were recently amended to require that for Interactive Data Files, the exhibit index must include the word “Inline” within the title description for any XBRL-related exhibits. This comes along with an amendment to require a new Exhibit 104 containing cover page iXBRL data. As a result, all 10-Qs filed by companies that are required to comply with iXBRL should include both an Exhibit 101 and an Exhibit 104 – although the EDGAR Filer Manual provides that Exhibit 104 can be included in the Interactive Data File covered by Exhibit 101.
In addition, all 8-Ks that are required to comply with iXBRL should include an Exhibit 104. Not only are these changes somewhat unheralded, but eCFR currently has an incorrect version of the Item 601(a) table – showing that Exhibit 104 isn’t required for 10-Qs or 10-Ks. This is causing a lot of confusion as second quarter 10-Qs get filed.
“Gaming” Tokens Not Securities: Corp Fin’s No-Action Response
Any no-action letter signing off on a token is probably worth noting. Corp Fin issued this no-action response to “Pocketful of Quarters” last week indicating that – based on the facts presented – it wouldn’t recommend enforcement action if the company didn’t register its “gaming” tokens as securities. So this is a “definition of securities” no-action letter. See this blog by Stinson’s Steve Quinlivan…
Brexit Disclosure: New Developments to Consider
Here’s the intro from this blog by Cooley’s Cydney Posner:
With Boris Johnson as the UK’s new PM—and given his enthusiasm for Brexit and threat to leave the EU by October 31 even with a “hard” Brexit—it might make sense for companies to revisit the observations of SEC officials regarding the critical need for thoughtful and specific disclosures about Brexit. Note that the designated new head of the EU commission has said that “another extension [beyond the deadline of October 31] could be granted ‘if good reasons are provided’—such as holding a general election or second referendum.”
Reports from yesterday, however, indicated that Johnson’s election “has been greeted in Brussels with a rejection of the incoming British prime minister’s Brexit demands and an ominous warning by the newly appointed European commission president about the ‘challenging times ahead.’” To be sure, in terms of potential disruption, some practitioners have likened the havoc that Brexit could create to the chaos anticipated from the Y2K bug! But even if that analogy turns out to be a bit too apocalyptic, there’s no question that Brexit, especially a hard Brexit, could have a significant impact on many companies—and not just those based in the UK and EU. With that in mind, companies may want to reexamine and update their disclosures about the potential impact of Brexit on their businesses.
It’s not news to anyone reading this that the legal profession has big problems with depression, substance abuse, and other mental health issues. If you haven’t personally experienced any of these, you know friends or colleagues who have. But the question is, why are these problems so prevalent among lawyers?
This Law.com article is stirring up some controversy over its claims that when it comes to outside counsel, the problem is the client. Specifically, the article singles out law department attorneys as playing a big role in mental health issues among outside counsel. Here’s the gist of the argument:
Client demands for fast turnaround times, even on non-urgent matters, can leave outside counsel in constant crisis mode. That stress can lead to frayed relationships and mental health issues such as depression, addiction and anxiety, which firm lawyers are more likely to experience than corporate in-house counsel.
“We’re on this crisis level all the time because of the expectations coming from the clients,” said Dan Lukasik, the founder of Lawyers With Depression. He said “a change in the relationship” between firms and in-house clients is needed to improve law’s mental health culture.
Client demands are part of the stress equation, but so is the law firm environment, and I don’t think it’s at all fair to point the finger at in-house lawyers. If in-house attorneys set unreasonable expectations, it’s usually because their business people have set unreasonable expectations for them. In my experience, many in-house lawyers go out of their way to let you know if something they’re asking for isn’t urgent, and it’s exceedingly rare to find one who puts you through the ringer just for giggles.
I agree that most corporate lawyers operate “on a crisis level” all the time, but I think that has more to do with how we’re wired than it does with client demands or whether we’re in a law firm or a corporate setting. For instance, even if I know something’s not a crisis, I’ll often just assume the client needs me to attend to it immediately. That’s nuts, but I don’t think I’m alone. A lot of us are introverted, competitive, perfectionist, obsessive about our reputations & terrified of failure. Add in our professional bias toward catastrophic thinking, and you’ve got a bunch of gasoline-soaked rags just waiting for somebody to light a match when it comes to mental health problems.
Quick Poll: Why Do Lawyers Experience Mental Health Issues?
I just gave you my 2 cents about why I think so many of us struggle with mental health issues – check out this ABA Journal article for what other lawyers have to say about this topic. Here’s an anonymous poll so you can provide your thoughts:
survey tool
Transcript: “Joint Ventures – Practice Pointers”
We have posted the transcript for the recent DealLawyers.com webcast: “Joint Ventures – Practice Pointers.” We’ll have our second installment for this topic in an August 6th webcast: “Joint Ventures – Practice Pointers (Part II).”
There’s a great quote from the 5th Circuit’s 1981 decision in Huddleston v. Herman & MacLean that says that “to warn that the untoward may occur when the event is contingent is prudent; to caution that it is only possible for the unfavorable events to happen when they have already occurred is deceit.” That quote pretty much sums up the basis for the SEC’s enforcement proceeding against Facebook that was announced yesterday. Here’s an excerpt from the SEC’s press release:
The Securities and Exchange Commission today announced charges against Facebook Inc. for making misleading disclosures regarding the risk of misuse of Facebook user data. For more than two years, Facebook’s public disclosures presented the risk of misuse of user data as merely hypothetical when Facebook knew that a third-party developer had actually misused Facebook user data. Public companies must identify and consider the material risks to their business and have procedures designed to make disclosures that are accurate in all material respects, including not continuing to describe a risk as hypothetical when it has in fact happened.
The misleading disclosures arose out of Cambridge Analytica’s unauthorized use of Facebook user data. Facebook allegedly found out about Cambridge Analytica’s antics in 2015, but didn’t revise its disclosure until two years later. Facebook consented to a “neither admit nor deny” settlement that, among other things, enjoins it from future violations of Section 17(a)(2) and (3) of the Securities Act and Section 13(a) of the Exchange Act & various rules thereunder.
The company also agreed to pay $100 million to settle the charges, which sounds like a lot, but is chump change to Facebook. After all, the company also agreed yesterday to pay a $5 billion fine to settle FTC charges arising out of customer data privacy lapses. Still, it seems to me that the real elephant in the room may not be the size of the settlement, but the fact that no individuals were named.
The SEC almost always names individuals in corporate disclosure cases, although it didn’t do so in last year’s high-profile data privacy case against Altaba (Yahoo!). In any event, there’s nothing in the press release to suggest that actions against any individuals are contemplated – despite language in the complaint to the effect that “more than 30 Facebook employees in different corporate groups including senior managers in Facebook’s communications, legal, operations, policy, and privacy groups” were aware that Cambridge Analytica had improperly been provided with user data.
The FTC Gives Facebook a New Board Committee!
Speaking of that FTC settlement, Bloomberg’s Matt Levine points out in his column that it has imposed some interesting governance obligations on Facebook that may curb some of Mark Zuckerberg’s power. One of the conditions imposed under the terms of the settlement is a new board privacy committee that is intended to be difficult for Zuckerberg to mess with. Here’s an excerpt from the FTC’s statement on the settlement:
The order creates greater accountability at the board of directors level. It establishes an independent privacy committee of Facebook’s board of directors, removing unfettered control by Facebook’s CEO Mark Zuckerberg over decisions affecting user privacy. Members of the privacy committee must be independent and will be appointed by an independent nominating committee. Members can only be fired by a supermajority of the Facebook board of directors.
Here’s Matt’s take on the independent privacy committee requirement:
The upshot is … look, it is not entirely clear to me what the upshot is; we’ll see what happens. But my rough analysis is that if Zuckerberg wanted to do a bad privacy thing, and the independent privacy directors told him not to, he’d have a tough time of doing it. He couldn’t remove the independent privacy directors from their posts.
Perhaps he could remove them from the board, but he’d have a hard time replacing them, because the independent nominating committee has “the sole authority” to pick new directors. I suppose he could replace the nominating committee too. These provisions aren’t ironclad. But surely their purpose really is to take the final authority over one aspect of Facebook out of the hands of Zuckerberg.
BlackRock: “Move Along – Nothing to See Here. . .”
According to this recent Harvard Governance Blog from its Vice Chair, BlackRock would like you to know that it & the rest of the Big 3 are really small players in the grand scheme of things:
As index funds are currently growing more quickly than actively managed funds, some critics have expressed concern about increasing concentration of public company ownership in the hands of index fund managers. While it is true that assets under management (or “AUM”) in index portfolios have grown, index funds and ETFs represent less than 10% of global equity assets. Further, equity investors, and hence public company shareholders, are dispersed across a diverse range of asset owners and asset managers.
As of year-end 2017, Vanguard, BlackRock, and State Street manage $3.5 trillion, $3.3 trillion, and $1.8 trillion in global equity assets, respectively. These investors represent a minority position in the $83 trillion global equity market. As shown in Exhibit 1, the combined AUM of these three managers represents just over 10% of global equity assets.
Umm, gee – isn’t 10% of all the equity assets in the world kind of a lot? I don’t know why we’re supposed to take a lot of comfort from that number – particularly since the Big 3 reportedly control 25% of the stock in the S&P 500 and are on course to increase that stake to more than 40% over the next two decades. These numbers aren’t small.
The blog also says that those AUM numbers are misleading, because they represent “a variety of investment strategies, each with different investment objectives, constraints, and time horizons. For example, BlackRock has more than 50 equity portfolio management teams managing nearly 2,000 equity portfolios.” That’s great – but when Larry Fink comes out with annual letters telling boards of portfolio companies “how things are gonna be,” those 2,000 equity portfolios look pretty monolithic.
By the way, if this “50 portfolio managers/2,000 portfolios” pitch sounds familiar to you, it may be because at some point you heard the same pitch from one of the Big 3 when it was lobbying your client to allow it to go over a poison pill threshold. At least that’s where I first heard it.
It looks like a token issuer finally crossed the public offering goal line – at least when it comes to clearing Corp Fin’s review process. This Morrison & Foerster memo has the details. Here’s an excerpt:
On July 10, 2019, Blockstack Token LLC (“Blockstack”), a wholly-owned subsidiary of Blockstack PBC, a Delaware public benefit corporation, became the first company to have an offering of digital assets qualified by the U.S. Securities and Exchange Commission (“SEC”) under Regulation A.
Blockstack is a technology company that offers an open-source blockchain-enabled network for developers to build and publish their own decentralized applications. According to Blockstack’s website, over 165 applications have been built on the Blockstack platform. Purchasers of Blockstack’s tokens (“Stacks Tokens”) will be able to use the tokens on its platform.
Token offerings have been under increasing scrutiny, especially with respect to whether or not tokens are securities. In its offering circular disclosure, Blockstack acknowledges that the Stacks Tokens are characterized as investment contracts under the Howey test, while noting that the Stacks Tokens “will not have the rights traditionally associated with holders of debt instruments, nor…equity.” The disclosure, in its discussion about the nature of Blockstack’s decentralized network, also references the SEC’s recent guidance on evaluating whether digital assets constitute securities for purposes of the Securities Act of 1933.
Although there have been a boatload of Reg D token offerings, this is the first one that’s cleared SEC review. Here’s a copy of the company’s preliminary offering circular. As to how long the process took, the answer is about 3 months.
It appears that the initial Form 1-A filing was made on April 11, 2019. At least one substantive amendment to the filing was made in May, but the filing history is a little convoluted, because the deal originally involved a subsidiary entity & was converted to an offering by the parent company shortly before the SEC issued its qualification order. The subsidiary ultimately withdrew its filing, but the back & forth between two filers makes it difficult to determine how much of the time between filing and qualification was attributable to the Staff’s review process.
Registered ICOs: And Then There Were Two!
Blockstack may have been the first ICO to clear SEC review, but this Proskauer blog says that it had company just a day later:
The SEC also qualified the Regulation A offering circular of YouNow, Inc. (“YouNow”), for up to $50 million worth of Props Tokens (“Props”). Rather than solicit cash (or cryptocurrency) consideration for the sale of Props, YouNow and its affiliate, The Props Foundation Public Benefit Corporation, will use YouNow’s Regulation A program solely to distribute Props as rewards and grants to users, developers and other contributors within YouNow’s network of consumer-facing digital media applications.
Meanwhile, back in unregistered token deal land. . .
Blue Sky: New Jersey Sues Issuer of Unregistered Tokens
The SEC’s high-profile enforcement actions involving digital assets get most of the limelight, but as we’ve previously blogged, state securities regulators have been extremely active on the enforcement front when it comes to token deals. Last week, it was New Jersey’s turn to bring the hammer down. Here’s an excerpt from this “Modern Consensus” article describing the Garden State’s recent action:
New Jersey got in on the cryptocurrency offering enforcement action on July 18, suing blockchain-based online rental marketplace Pocketinns for an unregistered sale of securities last year. The state’s attorney general, Gurbir Grewal, was joined by the New Jersey Bureau of Securities today in announcing a three-count enforcement action against Princeton-based Pocketinns and its president, Sarvajnya Mada, over the January 15-31, 2018, sale of $410,000 in PINNS Tokens in an initial token offering.
The U.S. Securities and Exchange Commission (SEC) has brought several similar suits, initiating a high-profile action against blockchain instant messaging service Kik in June for its $100 million ICO in 2017. The agency released a long-awaited “plain English” guide defining when an ICO is a security in April.
Aside from violating the Garden State’s Uniform Securities Law by failing to register the offering, Grewal alleged that Mada acted as an unregistered agent and Pocketinns employed an unregistered agent during the sale.
The article says that the Pocketinns deal wasn’t very successful – it raised less than 1% of the $46 million it sought. But on the other hand, the company appears to have been extremely successful in buying itself all sorts of trouble.
