In 2016, individuals in more than 67 countries outside the United States accounted for more than 460 tips under the SEC’s whistleblower program – that’s 10% of the total, and the number is growing. This Dechert memo suggests that the number of tips from abroad will continue to increase, and offers some thoughts on best practices for multinational corporations’ compliance programs. This excerpt says that an appropriately designed program should include, at a minimum:
– Convenient and confidential channels for employees to report concerns and complaints;
– Proper recordkeeping and tracking of complaints from initial report to resolution;
– Pre-existing protocols setting forth how to properly engage whistleblowers, investigate allegations of misconduct and when to retain external counsel;
– Well-trained staff empowered to independently identify misconduct and thoroughly investigate complaints, possibly in conjunction with external counsel;
– Proper documentation of the results of investigations, including any remedial measures adopted in response; and
– Well-designed internal controls to reduce the incidence of complaints and reduce the likelihood of retaliation against complaining employees.
Even with a properly implemented program, a company may not be able to completely avoid whistleblower complaints. But companies with established policies and procedures for appropriately handling whistleblower complaints will be in the best position to defend themselves against government investigations, & their efforts will likely be favorably viewed by the authorities.
Cross-Border Investigations: Expect Another Active Year in 2017
This Skadden memo reviews recent developments in cross-border investigations and enforcement, while this DLA Piper memo suggests that companies should brace for another very active year in cross-border investigations. Here’s an excerpt highlighting some of the ongoing cross-border cooperation initiatives between the UK’s Serious Fraud Office (SFO) & US authorities:
The SFO and US regulatory authorities, including the US Department of Justice and the US Securities and Exchange Commission, have also stated that they are committed to cooperating on cross-border investigations. As part of that cooperation, the UK and US agencies announced in early December 2016 that the DOJ will be assigning one of its attorneys to work in London, the first year with the Financial Conduct Authority (FCA) and the second with the SFO. US Assistant Attorney General Leslie Caldwell stated that this position “builds on years of parallel investigations and significant cooperation” and that the FCA and SFO are “highly interested in reciprocating” with a position assigned from the UK to the US.
John Travolta Was Right. . .
Since we’ve got kind of an international focus today, I thought it was a good time to point out that John Travolta’s character in Pulp Fiction was right – they do call it a “Royal with Cheese” in France (or a “Royal Deluxe” if you get yours with lettuce & tomato). Note also the mayo with the fries. I’ll never doubt a character in a Tarantino movie again:
By the way, if you’re concerned about the potential decline & fall of Western Civilization, here’s something you probably don’t want to know — this McDonald’s is at the Louvre.
Okay, I really had a lot of fun thinking about possible titles for this blog – “Harold & Kumar Go to Wall Street”, “Jay & Silent Bob Get on the Big Board”, “Dazed & Confused & Listed”, “Cheech & Chong’sUp in Smoke in Heavy Trading”. . . I could go on, and definitely would if I was back sitting in a college dorm room with my buddies.
Anyway, this Duane Morris blog points out a milestone in the history of the NYSE – the listing of its first cannabis-related stock:
In a major positive step for the cannabis industry, the New York Stock Exchange last month listed a new real estate investment trust called Innovative Industrial Properties (NYSE:IIPR), the first cannabis company to be listed on a US national exchange. The company plans to invest solely in real estate intended to be leased out to cannabis growers. In the IPO they raised $67 million, much less than expected. The price has not moved above the IPO price, but it has moved steadily up recently after an initial drop on its first few days of trading.
Earlier in 2016, Nasdaq rejected the listing application of MassRoots, a Facebook-like social networking platform for . . .uh. . . stoners. Nasdaq apparently was concerned that listing the company could be seen as aiding the distribution of an illegal substance.
Broc recently blogged about the legal uncertainties – for both companies & lawyers – associated with doing a marijuana-related deal. These uncertainties may increase with the new Administration. Attorney General nominee Sen. Jeff Sessions is strongly opposed to marijuana legalization, and as Duane Morris notes, that may make marijuana’s status in the states that have legalized it even more tenuous:
Congress has kept the feds from using money to go after those properly complying with state cannabis laws. But those actions, in appropriation bills, have to be renewed each year, and recent parliamentary changes may make that more difficult. The key question will be whether Trump allows Sessions free rein on the issue. That’s the unknown.
I like to think of this as the “Battle of the Jeffs” – Jeff Sessions vs. Jeff Spicoli from Fast Times at Ridgemont High. In the long run, I guess my money’s on Spicoli, but in the short-term, I’m not underrating Sessions.
Director Removal: Delaware Nixes Supermajority Requirement
Yesterday, the Chancery Court invalidated a corporate bylaw requiring a vote of 2/3rds of the outstanding shares of a Delaware corporation to remove a director. In Frechter v. Zier, Vice Chancellor Glasscock held that the provision was inconsistent with the requirements of Section 141(k) of the DGCL – which generally provides that any or all of the directors may be removed without cause by a majority of the outstanding shares.
Vice Chancellor Glasscock rejected the defendant’s contentions that the relevant language of Section 141(k) was permissive, & concluded that the removal provision was inconsistent with the plain language of the statute:
The DGCL is, broadly, an enabling statute. Section 109(b) of the DGCL states, in relevant part, that “[t]he bylaws may contain any provision, not inconsistent with law or with the certificate of incorporation, relating to the business of the corporation, the conduct of its affairs, and its rights or powers or the rights or powers of its stockholders . . . .”
Section 141(k) of the DGCL, however, provides that “[a]ny director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors” subject to two exceptions not pertinent here. The Plaintiff asserts persuasively, that the bylaw in question is “inconsistent with law,” and thus not permitted under Section 109(b).
As Broc blogged last year, the Chancery Court had previously invalidated charter & bylaw provisions that purported to make directors removable only for “cause” – holding that such a limitation was only permissible for companies with classified boards or that allowed for cumulative voting.
The Year in PIPEs
This MoFo blog and infographic reviews the year in “private investment in public equity” or “PIPE” deals. PIPEs have long been a capital-raising alternative when the public markets are inhospitable, and issuers in several out-of-favor sectors – including biotech, mining & energy – turned to them last year. Nearly $52 billion was raised in PIPE offerings during 2016 – a 27% increase over the $41 billion raised in 2015. The number of deals rose more than 12%, from 1,066 in 2015 to 1,199 in 2016.
Here’s a blog that I posted last week on the new “John Tales” Blog on DealLawyers.com:
Yesterday, the SEC announced that Allergan had admitted securities law violations and agreed to pay a $15 million penalty for failing to disclose merger negotiations that were taking place with third parties while the Company was the target of a tender offer from Valeant in 2014. The SEC’s order summarized the applicable disclosure requirement:
Rule 14d-9 and Item 7 of Schedule 14D-9 (incorporating Item 1006(d) of Regulation M-A) provide . . . that the person filing the statement must disclose “subject company negotiations.” Item 1006(d) requires disclosure of any negotiation which is underway or is being undertaken and which relates to, among other things, a tender offer or a transfer of a material amount of assets by the subject company. Item 1006(d)(2) of Regulation M-A requires disclosure of any transaction, board resolution, agreement in principle, or signed contract that is “entered into in response to [a] tender offer.” Item 1006(d)(1) of Regulation M-A requires a subject company to state “whether or not [it] is undertaking or engaged in any negotiations in response to [a] tender offer” that relate to an extraordinary transaction.
Allergan ran afoul of these requirements by failing to disclose discussions with two prospective merger partners – one of which it was looking to buy – that took place while the tender offer was ongoing. The admission is an unusual step, but it may reflect the fact that the Staff raised the possible need for disclosure of these negotiations on several occasions – and Allergan pushed back for some time before ultimately making disclosure.
In other settings, the Staff has taken a flexible approach to disclosure of preliminary merger negotiations. For example, it generally takes the position that MD&A’s known trends requirement does not mandate disclosure of such negotiations. However, if your deal is a tender offer, and you engage in negotiations with another bidder after the tender offer’s been launched, you’ll have an obligation to disclose those negotiations without regard to how preliminary they are.
Why? Because – as the SEC’s order points out – there is a specific line item in Schedule 14D-9 that will prompt this disclosure. Item 7 of Schedule 14D-9 – and Item 1006 of Reg M-A, which is incorporated into it – requires the target of a tender offer to disclose if any negotiations are going on. In some circumstances, you may be able to avoid disclosing the identity of the other party or the terms of the transaction, but you’ll still have to disclose the existence of those negotiations. (This is also true for “Going Private” deals – even if they don’t involve a tender – Item 1006 of Reg M-A applies there too.)
If the negotiations are ongoing when you make your first 14D-9 filing, you need to disclose them there. If they happen after you file the 14D-9, you’ll have to immediately (as in one day) amend it to disclose them. The SEC is dead serious about this and has been for a long time – when I started practice, a very prominent Wall Street lawyer got in the enforcement staff’s cross hairs because he told his client that it didn’t have to disclose merger negotiations during the pendency of a tender offer until they were material.
Unfortunately for him, he was a director of the company, and the SEC went after him for causing their violation of law. The ABA and the securities bar went ballistic – and the full SEC ultimately backed off – but nobody who was practicing in this area at the time will ever forget that situation. In fact, it even got a mention in the poor guy’s obituary when he passed away a few years ago.
Every 33 Years Like Clockwork: ABA’s Newly Revised “Model Business Corporation Act”
The ABA recently announced that it has issued the first comprehensive revision to the “Model Business Corporation Act” since 1984:
Beginning in 2010, the Corporate Laws Committee has undertaken a thorough review and revision of the Model Act and its Official Comment. This effort has resulted in the adoption and publication of the Model Business Corporation Act (2016 Revision). The 2016 Revision is based on the 1984 version and incorporates the amendments to the Model Act published in supplements regularly thereafter, with changes to both the Act and its Official Comment. Also included are notes on adoption and revised transitional provisions that are intended to facilitate legislative consideration in adopting the new version of the Model Act.
The MBCA is the model for more than 30 state corporate statutes, so it’s an extremely influential publication. On a personal note, the foreward to the new edition gives special recognition to the MBCA’s Reporter Emeritus – the late Prof. Michael Dooley. I was fortunate enough to have Prof. Dooley for Securities Regulation when I was in law school – he was an excellent teacher, a distinguished scholar & a real gentleman.
Board Committees: How the S&P 500’s Approach is Evolving
This EY study addresses how practices regarding the use of board committees are evolving among large-cap companies. The study reviewed board structure at S&P 500 companies between 2013 and 2016 made five observations about changes in committee practices during that period:
– Over 75% of S&P 500 companies have at least one board committee in addition to the required audit, nominating/governance and compensation committees, up from 61% in 2013.
– Executive committees are the most common type of additional committee. Finance, compliance and risk committees are also becoming more common, reflecting the benefits to some boards of having specialist committees on these oversight areas.
– Cyber & IT matters are not only for the Audit Committee. While over half of the companies that address these matters ,a growing number assigned responsibility to an additional committee. In the past year alone, the number of such committees grew by one-third.
– Compliance, risk & technology committees have seen the most growth over the past three years.
What about small caps? EY reviewed the S&P SmallCap 600 board committee structure and noted that 46% of smaller companies have at least one additional board committee, with the five most common being the executive, risk, finance, strategy & compliance committees.
This blog from Steve Quinlivan shares the details on the Trump Administration’s decision to order an immediate freeze on the adoption of new regulations. Media reports have noted that the incoming Obama and Bush Administrations both instituted a similar freeze – but as this Davis Polk blog points out, those reports have overlooked the fact that Trump’s freeze doesn’t apply to independent agencies, like the SEC:
Like past memoranda, the Priebus Memo does not attempt to freeze rulemaking by independent agencies, nor does it request that independent agencies voluntarily comply with a regulatory moratorium, as did a similar memorandum issued shortly after the inauguration of President George W. Bush. Accordingly, the Priebus Memo means little for the financial sector, because most financial regulatory agencies—including the CFTC, FDIC, Federal Reserve, OCC, SEC and, at least for the meantime, the CFPB—are treated as independent agencies.
Although there wasn’t a request for voluntary compliance with the freeze, with an interim GOP Chair now in place, it’s unlikely that the SEC would “go rogue” and issue new regulations in any event.
Unlike the actions taken by the last two incoming Administrations, the Priebus Memo freezes not only executive-agency rulemaking, but also the issuance of any “guidance document[s]” by an executive agency. Again, because the SEC is an independent agency, this directive does not apply to it – but for those agencies subject to it, issuance of formal agency guidance on existing rules & statutory provisions is off the table for the duration of the freeze.
Tomorrow’s Webcast: “Audit Committees in Action – The Latest Developments”
Tune in tomorrow for the webcast – “Audit Committees in Action: The Latest Developments” – to hear Morgan Lewis’ Rani Doyle, Deloitte’s Consuelo Hitchcock and Gibson Dunn’s Mike Scanlon catch us up on a host of new SEC & PCAOB developments that impact how audit committees operate – and more.
Cybersecurity: The Russians Are Coming! The Russians Are Coming!
This Womble Carlyle memo reviews the DHS/FBI report on Russia’s hacking of the DNC in connection with the 2016 election, & says it’s time for US companies to start building cyber-fallout shelters:
The report is best understood as a call to arms for U.S. private sector and government entities to strengthen their vigilance and defenses against Russian Intelligence Services and join DHS and FBI in their effort to counter them. Many organizations believe that because they hold no state secrets, defense related intellectual property, or sensitive information on government employees, they have no stake in geopolitical cyber security. DHS and the FBI are saying that this is not true.
The national interest in cyber security is materially weakened whenever organizations with credibility and standing allow their domains to be breached and used conduits for cyber attacks on others – as happened in the DNC breach. Furthermore, data collected from breaches of non-traditional targets is often used to create the highly targeted and highly credible email packages for use in spear phishing campaigns against more traditional targets.
Aside from the recent unpleasantness, the Center for Strategic & International Studies’ cybersecurity recommendations for the incoming President include actions to “incentivize companies to make cybersecurity and data protection a priority for Boards and C-Suites.”
As we watch the peaceful transition of power & wonder if we will come together as a nation after a deeply divisive election, there’s one question on everyone’s mind this Inauguration Day – “So, is Edgar open?” According to this press release from the SEC, the answer is “yes.”
The SEC’s press release notes that due to Inauguration activities, there will only be limited filer support – as DC is shut down & government employees there aren’t heading into the office. The press release doesn’t address the issue of whether today is a “business day” for purposes of determining filing due dates. However, as Broc pointed out in this blog from 2009, Inauguration Day is not a national holiday – so in the absence of any guidance from the SEC to the contrary, companies should assume that it is a “business day.”
The “Make-Whole” Investor Revolt
This Bloomberg News story tells the tale of a revolt among bond investors over efforts by issuers to change indenture language relating to make-whole payments. Apparently, a number of high-profile issuers were sent back to the drawing board earlier this month after investors refused to come on board for new language intended to prohibit make-whole payments in connection with defaults.
Make-wholes entitle investors who have their notes redeemed to receive the discounted present value of the future payments they would have received absent the redemption. They have historically been payable only in connection with optional redemptions. Last fall, two judicial decisions imposed make-whole obligations on issuers in non-traditional settings. The first, Wilmington Savings v. Cash America (SDNY 9/16) applied a make-whole as a remedy for a “voluntary” non-bankruptcy default. The second, In Re Energy Future Holdings (3d Cir. 11/16) held that a make-whole was payable in a bankruptcy redemption.
In response, issuers added language to indentures “undoing” the result in these cases – by clarifying that no make-whole is due upon default or bankruptcy.
The investor revolt was prompted by comments from a covenant review service to the effect that this new language was “the end of covenants” and the “single worst change” ever to emerge in the bond market. This Davis Polk memo responds to these contentions by trying to provide some historical perspective:
Not all capital markets notes include an optional right of redemption. We believe that market participants and practitioners have generally understood that an issuer’s right of redemption, including at a stated premium or make-whole, exists to provide flexibility for the benefit of the issuer. It would be odd, to say the least, if when an issuer defaults on notes without this feature, the issuer only has to pay principal and interest, but if that additional feature is included–for the issuer’s benefit– the issuer must pay a premium.
Accordingly, the memo contends that this new language “is not really much of a change at all from what has been, in our view, established practice.”
Yesterday, the SEC sanctioned MDC Partners for violating Reg G & Item 10(e) of Reg S-K in connection with its use of non-GAAP financial measures. Some people are calling this the first non-GAAP enforcement case – but that’s not quite right. There aren’t many, but this isn’t the first non-GAAP case. In fact, this isn’t even the first non-GAAP case since the new CDIs!
Despite agreeing to comply with non-GAAP financial measure disclosure rules in December 2012 correspondence with the Commission’s Division of Corporation Finance, MDCA continued to violate those rules for six quarters by failing to afford equal or greater prominence to GAAP measures in earnings release presentations containing non-GAAP financial measures. Furthermore, for seven quarters between mid-2012 and early-2014, MDCA did not reconcile “organic revenue growth,” which as calculated by MDCA was a non-GAAP financial measure, to GAAP revenue.
In addition, the SEC announced that the company agreed to pay a $1.5 million penalty to settle charges that it failed to disclose certain perks enjoyed by its then-CEO. In April 2015, the company disclosed that the SEC was investigating its CEO’s expenses & the company’s accounting practices.
The SEC’s order says that the company disclosed a $500k annual perk allowance for its CEO – but didn’t disclose millions of dollars in additional perks. These included private aircraft usage, club memberships, cosmetic surgery, yacht and sports car expenses, jewelry, charitable donations, pet care, & personal travel expenses. The CEO resigned in July 2015 and returned $11.3 million worth of perks, personal expense reimbursements, and other items of value improperly received over a 5-year period. We’ll be posting memos regarding this case in our “Non-GAAP Disclosures” Practice Area.
Update: Francine McKenna tipped us off to this MarketWatch article, which notes that the earlier post-CDI non-GAAP enforcement case also resulted in a criminal indictment.
Internal Controls: GM Sanctioned for Deficiencies Related to Ignition Switch Recall
Yesterday was a busy day for the SEC’s Division of Enforcement. The SEC announced that General Motors agreed to pay a $1 million penalty to settle charges that deficient internal accounting controls prevented it from properly assessing the potential financial statement impact of a defective ignition switch found in some vehicles.
According to the SEC’s order, ASC 450 requires companies dealing with potential loss contingencies – such as GM’s potential recall – to assess the likelihood of whether the potential recall will occur & provide an estimate of the loss or range of loss, or provide a statement that such an estimate cannot be made. In GM’s case, shortcomings in its controls prevented that from happening:
The SEC’s order finds that the company’s internal investigation involving the defective ignition switch wasn’t brought to the attention of its accountants until November 2013 even though other General Motors personnel understood in the spring of 2012 that there was a safety issue at hand. Therefore, during at least an 18-month period, accountants at General Motors did not properly evaluate the likelihood of a recall occurring or the potential losses resulting from a recall of cars with the defective ignition switch
The GM proceeding is the second involving internal controls this month. Last week, the SEC announced that L3 Communications agreed to pay a $1.6 million penalty to settle charges that it failed to maintain accurate books and records and had inadequate internal accounting controls.
More on our “Proxy Season Blog”
We continue to post new items regularly on our “Proxy Season 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:
– Proxy Access: Is NYC Comptroller Graduating to Submitting Candidates?
– Shareholder Proposals: GHG Emissions Excludable
– Shareholder Proposals: “Bringing in the Vote” Disclosure
– Climate Change Chart: How Mutual Funds Vote
– SEC Comment Letters: Top Issues in 2016
We have posted the transcript for our popular webcast: “Non-GAAP Disclosures: Analyzing the Comment Letters.”
Whistleblowers: BlackRock Nailed in Separation Agreement Enforcement Action
As Yogi Berra might put it, “it’s like deja vu all over again.” Yesterday, the SEC tagged BlackRock for language in separation agreements that it believed created disincentives for whistleblowing. According to the SEC’s order, more than 1,000 departing BlackRock employees signed separation agreements containing violative language stating that they “waive any right to recovery of incentives for reporting of misconduct” in order to receive severance payments. This action is notable because BlackRock is one of the biggest institutional investors out there!
Last month, Broc blogged about the latest separation agreement case – the day after he blogged about another separation agreement case – and noted that more were on the way.
The SEC’s ongoing emphasis on separation agreements hammers home the need to modify agreements that may create impediments to whistleblowing. It’s also another excellent reason to tune into our upcoming webcast – “Whistleblowers: What Companies Should Be Doing Now”…
Tomorrow’s Webcast: “Privilege Issues in M&A”
Tune in tomorrow for the DealLawyers.com webcast – “Privilege Issues in M&A” – to hear Alston & Bird’s Lisa Bugni, Bass Berry’s Joe Crace & Akin Gump’s Trey Muldrow discuss how to deal with the attorney-client privilege in M&A transactions.
This Davis Polk blog discusses an abundance of legislative initiatives designed to enhance Congressional control over the agency rulemaking process. In early January, the House passed two separate statutes that would make it easier for Congress to intervene in the regulatory process. Naturally, the proposed statutes have the kind of colorful & politically charged names that we’ve come to expect from our lawmakers.
First, there’s the “Midnight Rules Relief Act of 2017,” which would enable Congress to pass omnibus disapproval resolutions that cover multiple regulations submitted during the final year of a President’s term. Next comes the “Regulations from the Executive in Need of Scrutiny (REINS) Act of 2017,” which provides that “major rules” – those identified as likely to cause annual economic effects of at least $100 million — could only take effect if Congress adopted a joint resolution approving of the rule.
A third bill, the “Require Evaluation Before Implementing Executive Wishlists (REVIEW) Act of 2017,” has also been introduced. Under this statute, agencies would have to postpone the effective date of “high-impact” rules—those determined to impose annual economic costs of $1 billion or more—until after the final disposition of all actions seeking judicial review of the rule.
The blog’s skeptical that any of this legislation will pass absent a decision by the Senate to eliminate the filibuster, but this excerpt suggests that these statutes reflect the mood of Congressional Republicans:
Congressional Republicans are both eager to unwind the Obama Administration’s regulatory agenda and cognizant of the difficulties of doing so through notice-and-comment rulemaking. Moreover, these bills signal the desire of many in Congress to play a greater role in the regulatory process and a view that, according to the Purpose section of the REINS Act, “Congress has excessively delegated its constitutional charge while failing to conduct appropriate oversight and retain accountability for the content of the laws it passes.”
While reforms as sweeping as those proposed in some of these statutes are not expected, we should expect further efforts by Congress to increase its control over agency rulemaking.
But Wait! There’s More!
Remember when I said we should expect further Congressional action on rulemaking? This blog from Cydney Posner says that they’re already back at it. After passing the REINS Act & the Midnight Rules Relief Act, the House of Representatives came back the following week with another round of legislation:
On Wednesday, the House Republicans (with five Democratic votes) passed H.R. 5, the “Regulatory Accountability Act,” a bill that would change the way federal agencies issue regulations and guidance. This bill would require agencies to, as part of their rulemaking processes, expand the factual determinations required, provide advance notice with regard to certain important rule proposals and follow specified procedures for issuing important guidance, among other processes. Included as part of the same bill is the “Separation of Powers Restoration Act,” which provides for de novo judicial review of agency actions.
Another bill has been introduced in the House that has the SEC’s rulemaking process squarely in the cross-hairs. The “SEC Regulatory Accountability Act” would enhance the requirements for cost-benefit analyses of proposed SEC rules & provide for post-adoption impact assessment and periodic review of existing regulations.
In what is likely to be her final speech as SEC Chair, Mary Jo White today pushed back against legislative initiatives to remake the rulemaking process. In particular, she said that the SEC Regulatory Accountability Act would provide “no benefit to investors beyond the exhaustive economic analysis we already undertake” and that the Act’s requirements would prevent the SEC from “responding timely to market developments or risks that could lead to a market crisis.”
Tomorrow’s Webcast: “Pat McGurn’s Forecast for 2017 Proxy Season”
Tune in tomorrow for the webcast – “Pat McGurn’s Forecast for 2017 Proxy Season” – when Davis Polk’s Ning Chiu and Gunster’s Bob Lamm join Pat McGurn of ISS to recap what transpired during the 2016 proxy season and what to expect for 2017. Please print these “Course Materials” in advance…
ESG – particularly sustainability & climate change – continues to grow in importance. There continues to be a multitude of standards to be aware of. The latest is a group of new standards from GRI (“Global Reporting Initiative”). The new GRI standards are modules that replace the former 4th generation of GRI standards, as fully explained on their site. We continue to post all the latest standards in our “ESG” Practice Area – as well as all sorts of memos on the latest (such as this 118-page guide on ESG integration for investors)…
Delaware Supreme Court Finds Relationships Taint Director Independence, Promotes Internet Searches
Here’s the intro from this blog by Davis Polk’s Ning Chiu:
Recently, the Delaware Supreme Court reversed the Court of Chancery in Sandys v. Pincus on findings of director independence at Zynga. The Court of Chancery had dismissed the suit for failure to make pre-suit demand on the board or alleging that demand would have been futile, but the Delaware Supreme Court found that the plaintiff had created a reasonable doubt that the board could have properly exercised independent, disinterested business judgment in responding to a demand. If director independence is compromised, then demand is excused.
Attorney-Client Privilege: In-House Counsel Can’t Talk to Former Employees!
In a blow to in-house lawyers, the Washington Supreme Court has ruled that communications between corporate counsel and former employees are not privileged and are freely discoverable. The 5-4 decision states that attorney-client privilege doesn’t exist because the former employee no longer has an ongoing principal-agent relationship with the corporation. The case involves a parents’ suit against a school district, claiming that their football-playing son allegedly was sent back into a game after suffering a concussion.
General counsel are clearly bothered by the ruling, according to Amar Sarwal, vice president and chief legal strategist for the Association of Corporate Counsel in Washington, D.C. Sarwal says that they have been emailing him since it came down on Oct. 20, including “four or five within the first 24 hours.” The main problem, according to Sarwal, is that the ruling is going to interfere with in-house investigations that seek to determine the facts surrounding misconduct. “Former employees tend to have a stockpile of information,” Sarwal says. “They are a treasure trove of information about what happened, and in-house counsel need to speak with them to find out. But this decision will assure that never happens.”
I try to innovate with something new every year. In 2016, it was the “Big Legal Minds” podcast series. The year before was a facelift for the home pages of our sites (with new features like our “Job Board“). In 2014, I launched the “Women’s 100” events & started posting the popular videos on CorporateAffairs.tv.
For 2017, it’s this new “Broc Tales” blog – as well as a counterpart on DealLawyers.com, “John Tales” – which attempts to educate through storytelling. The stories on “Broc Tales” will relate to the topic at hand – Reg FD for the bulk of ’17. Within the stories, I’ll be throwing in personal anecdotes occasionally. Inspired by the writings of Sarah Vowell. Hoping to spice it up. Here’s the first two entries:
But maybe my life ain’t your cup of tea. Not much I can do about that. Go ahead & subscribe to this blog now (using this “Subscribe” link) so that you can receive my new entries pushed by email during the coming year! And if you do check it out, let me what you think! It’s a new style of writing for me, so I imagine I will be improving over time…
To assist audit committees in their oversight efforts, the Center for Audit Quality has just released a new publication, “Preparing for the New Revenue Recognition Standard,” a tool for audit committees. The publication is organized in four parts and provides important and sometimes quite specific and detailed questions for audit committees to ask management. The first section, Understanding the New Revenue Recognition Standard — What Is It?, is designed to help audit committees understand the new standard by providing a brief overview of its core principles. Generally, the new standard provides a five-step model for recognition of revenue “when the customer can use or benefit from the good(s) or service(s) provided.” The CAQ suggests that audit committee members ask management to explain the standard and how it affects (or does not affect) the company and encourages members to oversee the company’s decision regarding the appropriate transition method and consider the market impact.
Audit Engagement Partners: CAQ’s Take on Form AP
The CAQ recently published this white paper on the new Form AP. For more on this new reporting requirement for audit engagement partners, see the memos posted in our “Auditor Engagement” Practice Area.
