You would figure one of the benefits of living in the DC area is that I would have gotten a chance to see the Supreme Court live during oral argument. But it’s not easy to gain entrance. I’m happy to say that I’m heading down there this morning to watch the Supreme Court deliberate the future of the PCAOB (and possibly reshape other aspects of Sarbanes-Oxley too – see this Bloomberg article) when it considers Free Enterprise Fund v. PCAOB. I’ll be giving a full report on the SCOTUS experience later this week.
Meanwhile, take a gander at the numerous merit and amicus briefs filed in the case so far with SCOTUS. Also check out this amicus brief filed by nine members of the Council of Institutional Investors, CFA Institute and others (it was the first one filed in support of the PCAOB).
Last week, the PCAOB approved its a five-year budget and strategic plan this week, which is now subject to SEC approval. The PCAOB seeks a 16% increase in its 2010 budget, from $157.6 million to $183.3 million (raising the Staffing level to 636).
Tomorrow, as noted in the SCOTUS blog, the US Supreme Court will hear oral arguments regarding the Hollinger case (executive pay and fraud). And Kevin LaCroix notes that SCOTUS has granted certiorari in a “f-cubed” case.
Ask the Experts: Prepping for a Wild Proxy Season
We have posted the transcript for our recent webcast: “Ask the Experts: Prepping for a Wild Proxy Season.”
Ask the Experts: Schedule 13D and Schedule 13G Issues
With investors becoming more active – with many pursuing the same agenda – the issues implicating Schedule 13D and 13G have become more common and more complex. Join DealLawyers.com tomorrow for the webcast – “Ask the Experts: Schedule 13D and Schedule 13G Issues” – and hear from:
– Dennis Garris, Partner, Alston & Bird LLP and former Chief, SEC’s Office of Mergers & Acquisitions
– Jim Moloney, Partner, Gibson Dunn & Crutcher LLP and former Special Counsel, SEC’s Office of Mergers & Acquisitions
– Chuck Nathan, Partner, Latham & Watkins LLP
– David Sirignano, Partner, Morgan Lewis & Bockius LLP and former Chief, SEC’s Office of Mergers & Acquisitions
Act Now: Renew your membership for 2010 as all memberships expire at the end of this month. Or try a no-risk trial for 2010 and catch this webcast for free.
We finally have the various pieces of the reform bills separately passed by the House Financial Services Committee rolled into one document, HR 4173 – “The Wall Street Reform & Consumer Protection Act of 2009” – as the Committee passed the last piece of it on Wednesday. Here is that 1279-page document that the House is expected to vote on next week. It is likely it will pass along party lines – the question is what amendments will occur before it is passed as noted in my blog from Monday…
Nasdaq Mandates 10-Minute Prior Notification of Material Information
Recently, the SEC approved a Nasdaq rule change to Rule 5250(b)(1) and IM-5250-1 so that Nasdaq-listed companies will be required – rather than merely urged – to provide Nasdaq with at least 10 minutes notification when releasing material information; the change to IM-5250-1 also ensures that Nasdaq’s rules are consistent with the SEC’s interpretive guidance on the use of company websites to satisfy public disclosure requirements (ie. softening language that web posting alone “will not” satisfy Regulation FD to “may not” satisfy). The rule changes become operative on December 7th.
More on “The Mentor Blog”
We continue to post new items daily on our new 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:
– Suing Research Firms that Dissent
– The Buck Starts Here: GCs Should Advocate for Good Corporate Governance
– Only Interested in Transactional Law: The New Prospective Summer Associate Taboo?
– Nell Minow on “The New Fundamentals”
– Life Balance Issues for Executive Spouses
Right before Thanksgiving, the SEC approved the NYSE’s amendments to its corporate governance requirements contained in Section 303A of the NYSE Listed Company Manual. The amendments are effective January 1, 2010. We’ll be posting memos analyzing these new requirements in our “NYSE Guidance” Practice Area.
As noted by Mayer Brown, the rule changes include:
– Eliminating NYSE requirements that are similar to existing SEC requirements that are contained in Item 407 of Regulation S-K, and incorporating the applicable requirements of Item 407 into Section 303A of the NYSE Listed Company Manual. For example, replacing the reference to disclosure of categorical standards for independence with a reference to the disclosure requirements of Item 407(a) of Regulation S-K (which requires a description by specific category or type of transactions, relationships or arrangements that were considered in making an independence determination);
– Permitting more extensive use of a company’s web site, as opposed to a proxy statement or an annual report, to disclose, among other matters, the director chosen to preside at executive sessions and the method for interested parties to communicate directly with the presiding director or the non-management or independent directors as a group;
– Eliminating the requirement for a listed company to state in its proxy statement or annual report that corporate governance documents posted on its web site are available in print to any shareholder who requests them;
– Eliminating the requirement for a listed company to disclose in its annual report that its chief executive officer filed the certification regarding compliance with the NYSE’s corporate governance listing standards and that the company filed the chief executive officer and chief financial officer certifications required by the SEC;
– Requiring the chief executive officer to notify the NYSE in writing after any executive officer becomes aware of any non-compliance with NYSE corporate governance listing standards, even if not material;
– Allowing a listed company to hold regular executive sessions of independent directors as an alternative to executive sessions of non-management directors;
– Clarifying that a company must disclose a method for all interested parties, not just shareholders, to communicate their concerns to the presiding director or to the non-management or independent directors as a group;
– Requiring disclosure of a board’s determination, if applicable, that an audit committee member’s service on more than three public company audit committees would not impair that director’s ability to serve on the listed company’s audit committee, even if the company does not limit audit committee members to serving on three or fewer public company audit committees;
– Permitting disclosures to be incorporated by reference into a company’s proxy statement or annual report from another document filed with the SEC, if permitted by SEC rules; and
– Modifying transition periods for newly listed companies.
Getting Your Website Ready for XBRL
In this podcast, Diane Mueller of Just Systems explains how to get your investor relations’ website ready for XBRL, including:
– Which companies need to post their filings in XBRL filings on their IR web pages? And when?
– How exactly will companies need to display these XBRL filings on their IR web pages?
– Are there any examples of companies that have done this already?
– What should companies be doing to prepare for these new requirements?
Recently, the “XBRL Business Information Exchange Blog” noted that Citigroup had filed a model XBRL document.
The California Attorney General’s Pursuit of the Credit Rating Agencies
Last Monday, the SEC adopted rules regarding credit rating agencies – and proposed some rules too. Related to my blog on the Ohio Attorney General’s suit against the credit rating agencies, Keith Bishop of Allen Matkins sent me this information:
Back in September, the California Attorney General announced an investigation into the rating agencies “role in fueling the financial crisis.” The California AG asked the rating agencies to supply information to address the following questions:
– Whether the rating agencies failed to conduct adequate due diligence in the rating process;
– Whether the rating agencies gave high ratings to particular securities when they knew or had reason to know that high ratings were not warranted;
– Whether the rating agencies failed to comply with their own codes of conduct in rating certain securities;
– Whether the rating agencies profited from giving inaccurate ratings to particular securities;
– Whether the rating agencies made fraudulent representations concerning the quality or independence of their ratings;
– Whether the rating agencies compromised their standards and safeguards for profits;
– Whether the rating agencies’ statistical models captured the risk inherent in subprime and other risky assets and, if not, what was the rating agencies’ response; and
– Whether the rating agencies conspired with the companies whose products they rated to the detriment of investors.
Also, the California Office of Administrative Law has accepted my petition for a determination that CalPERS failed to comply with the California Administrative Procedure Act when it adopted guidelines for disclosure of placement agent arrangements. This triggers a public comment period that expires on January 11, 2010. If comments are submitted, copies must be sent simultaneously to CalPERS and me (as the petitioner). The commenter must certify to the OAL that it has sent these copies. Of course, I encourage those who have an interest in the subject to submit copies.
Dave and I are excited that this blog made the ABA Journal’s Blawg 100 for the second year in a row. Patting ourselves on the back, I think it’s quite an achievement considering there are only 16 blogs that are in the “Practice Specific” category. Most of the other blogs in the Blawg 100 don’t get into the nitty gritty issues of actual practice. Thanks to the many of you that emailed the ABA Journal to get us this far (including Matt Dallett, who had a nice quote about our blog in this list of the 100 blawgs)…
To help you navigate the ABA Journal’s voting framework, here are the three steps you should take:
1. Register to vote – it’s free (if you’re an ABA member, your ABA id/password won’t work for the ABA Journal’s site).
2. Take your User Name and password – you will create these when you register – and log-in. This may happen automatically when you click on the link within the email sent to you after you register.
3. Now vote in this “Practice Specific” category by scrolling down to the description of our blog – 2nd blog from the bottom – and clicking the “plus sign” in the box to the left of it (if you don’t see a “plus sign,” you’re not logged-in). If you can’t find our blog, you’re probably in the default “News” category. Click on over to the “Practice Specific” category to find ours…
If you’re having troubles, please shoot me an email and let me know. Thanks for the support!
The Security at the SEC: A 20-Year Timeline
The madness of the so-called White House crashers got me thinking about how the security to gain entry into the SEC’s HQ has evolved over the years. When I first started at the SEC in ’88, visitors could freely come upstairs and bicycle messengers were routinely on our floor, delivering large packages filled with multiple copies of registration statements. I always wondered how they lugged those heavy boxes on their bikes.
Security essentially was perfunctory until a White House incident that led to huge concrete pylans being placed on the sidewalks along Pennsylvania Avenue, along with the contemporaneous invasion of Kuwait leading to the Gulf War circa ’90. At this time, the SEC began to require visitors to obtain a pass – and Corp Fin Staffers regularly were called from the main lobby to come down and meet bike messengers to receive packages. Given that we didn’t have voicemail at the time, this could be frustrating (as well as a welcome diversion).
The ’95 Oklahoma City bombing was followed by another increase in security effort. Screening became almost as tight as it is now post-9/11, with visitors all herded through a holding pen to the left of the Fifth Street entrance and the Sixth Street entrance closed to anyone other than Staff. In the “Visitor’s Office,” visitors would show identification to obtain a yellow pass (so long as they had an invitation from a Staffer to get upstairs). They then presented this pass to a guard by one of two separate elevator banks. Staffers who forgot their IDs had to go through this process to get upstairs too.
Once the SEC moved from 450 Fifth Street to Union Station a few years ago, the SEC installed even tighter security – the biggest change being the addition of a metal detector that visitors must pass through and only a single point of entry to go upstairs. It’s a bit scary to work in a federal building – so all of this security is certainly necessary.
Marty Dunn reminded me of this story: “Remember during the Breeden years when the security guards all went home and a senior Staffer came in early to find a number of men who appeared to be homeless wandering the halls? Chairman Breeden changed the security company that day and there was a little more scrutiny.
More on our “Proxy Season Blog”
With the proxy season now looming in many of our minds, we are posting new items regularly again 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:
– Disclose Agreements with Shareholders?
– Study: Activism Through the Shareholder Proposal Process
– Broker Nonvotes and Delaware Law
– More on “Impact of Elimination of Broker Nonvotes”
– An Interview with Morgan Stanley’s Ken Bertsch
As I blogged in passing two weeks ago, RiskMetrics has released its policy updates for 2010. I did take in Pat McGurn’s discussion during the ABA Fall meeting and he did predict a record number of shareholder proposals. I just love his colorful commentary. On how to draft CD&As, Pat said:
– Draft with a style that is the “opposite of speed dating. You don’t want investors to linger for hours over your proxy statement (and CD&A). You should strive to convince them within minutes of picking up your proxy statement that there are zero problems – with the board, executive pay or other issues – and that they should move on to the next meeting.
– Don’t bury the lead under a pile of legalese. You must grab the readers’ attention. Use executive summaries like Movie Trailers (aka Coming Attractions). Highlight the best scenes, the most memorable lines and the score. If you don’t grab their attention, they’re likely to give more weight to the movie reviews (aka the proxy analyses).
Perhaps because of a smaller market – and thus a smaller number of market participants to come together and agree on something – the United Kingdom seems to regularly beat the US to the punch when it comes to new governance ideas. The latest is the UK’s Institutional Shareholders’ Committee releasing a code of responsibilities of institutional investors. The code offers best practices, including dealing with the important topics of how to monitor companies, engage with boards and vote at shareholder meetings.
The ISC consists of the four leading UK investor bodies. The code is voluntary and will operate on a comply-or-explain basis. As noted in this press release, the code also calls on institutions to “state publicly how they apply its principles and disclose what steps they have taken, or intend to take, to verify their compliance.”
Our December Eminders is Posted!
We have posted the December issue of our complimentary monthly email newsletter. Sign up today to receive it by simply inputting your email address!
Always an interesting conference for hard-core securities practitioners, I attended the ABA’s Fall Meeting for the “Federal Regulation of Securities Committee” in DC a week ago Friday. This year’s meeting drove me to despair as it became evident that the finest minds in the securities bar didn’t have a complete grasp on what was happening in Congress. If those of us “inside the Beltway” and normally plugged in didn’t have all the answers, who does? No one, probably not even those working on the Hill.
The sheer pace of changes to proposed legislation – not to mention the large number of bills being floated – makes this a time unlike no other during my career. Truly anything can happen and at any time (eg. see this blog and this follow-up blog). Lobbyists are making their marks felt and who knows what type of regulatory framework we will end up with.
Even as senior Corp Fin Staffers laid out a blitzkrieg of upcoming proposals and adoptions during a panel, it was hard not to think about the real background and cause for concern these days. The great unknown of Congress. In terms of keeping up with the latest developments, the next few months may be our greatest challenge yet…
SIGTARP’s Latest Audit Bashes New York Fed’s Handling of AIG
Just as Congress readies legislation to enhance the oversight powers of the Federal Reserve (although this action taken by the House Financial Services Committee would move “too big to fail” power from the Fed to a new “Financial Services Oversight Council”), the TARP’s Special Inspector General released its audit of how the Federal Reserve Bank of New York handled the AIG crisis. As noted in this NY Times article, the report is not good news for the Fed, including now-Treasury Secretary Geithner.
Dissecting the Dodd Bill’s Broker-Dealer Provisions
In this podcast, Bob Colby of Davis Polk (and former Deputy Director of the SEC’s Division of Trading & Markets) provides insight into the broker-dealer provisions of the Dodd bill and what we can expect to see, including:
– What is the background of the broker-dealer provisions of the Dodd bill and how did they come to be?
– How would the Dodd bill affect broker-dealers if it is passed in its draft form?
– How does the Dodd bill differ from the House’s bill on broker-dealers?
– What are the odds of passage of the broker-dealer provisions of the Dodd bill?
Yesterday, a very special person in the DC community passed away. Although long-timer owner of the Washington Wizards (formerly the “Bullets”) was considered by many to be “old-school” in the way he approached his team – really running it like a family business, often hiring old players for management positions – he truly was a visionary in the way he gave to the community.
For over forty years, Abe spent lots of time and money in the poorest parts of town – always on the sly, never seeking recognition. If you heard some of the stories last night on talk radio here in DC (like this one), you couldn’t help but tear up. He gave opportunity to countless youths back in the ’60s, ’70s and ’80s – and you could hear how those people were then inspired to do the same. Abe created generations of people willing to help others.
Abe completely changed the nature of the city itself. He spent his own money – spending most of his fortune – to build the Verizon Center a decade ago. This in an era where most sport owners threaten to move a team if the locals don’t pony up and pay for a new stadium. That alone sets him apart. But Abe took the next step and insisted the stadium be built in a part of town that was essentially dead, just down the street from where the SEC’s old HQ sat (rather than build it in a suburb).
That part of town now is the apple of DC’s eye and its revitalization is continuing to spread outward. The transformation is amazing to behold – and it’s all due to one man. As we give “thanks” tomorrow, remember that one person can – and will – make a difference. Don’t give up in your struggle to reap the rewards of your own efforts to help others. Abe felt our love every day, as he has been the hero of this city for years. There are many tributes on the Web today like this WaPo article.
I was trying real hard to not blog at all this week (which would be a first in years) – but I just can’t help myself. That is one downside to becoming a blogger – you look for story ideas in everything you do (or at least, you should be). For every blog I post, there are three that lay in draft form for months and months until I finally delete them as unworthy or untimely. And my blogging style isn’t even that involved – I favor fairly short pieces that link to more information from other sources.
But as Francine McKenna of “re:theauditors.com” fame describes in this blog, there is another downside to blogging. By blogging, you become a journalist whether you realize it or not – and with that, you open yourself to the world. It comes with the territory.
The good news is that the upsides of blogging far outweigh the negatives in my opinion. You only live once and blogging gives you a great opportunity to connect with like-minded souls. And that’s just a personal benefit. There are numerous professional benefits. Read more about the pros/cons of blogging and whether you have what it takes to blog in my article from the “Summer 2008” issue of InvestorRelationships.com (which is still a free publication).
Microsoft’s Shareholders Vote on Say-on-Pay
Last week, Microsoft held its annual meeting, including its first triennal vote on pay (which received 99% support). In this blog, Microsoft’s Deputy General Counsel John Seethoff describes the results of the meeting – and links to this Roll Call op-ed by Carpenters Ed Durkin and Microsoft’s GC Brad Smith on why a three-year cycle for say-on-pay makes sense.
So What About the Ohio AG’s Lawsuit Against the Rating Agencies?
In his “D&O Diary” Blog, Kevin LaCroix examines the latest efforts to bring the credit rating agencies to bear for their role in the financial crisis. Good stuff.
Since every company should now consider addressing walkaway numbers in this year’s proxy statements, we have devoted the “Fall ’09 issue of Proxy Disclosure Updates” to analyzing how to draft this type of disclosure. We even provide a model walkaway disclosure in this critical issue.
You will receive this issue, which is posted on CompensationDisclosure.com, by taking advantage of a no-risk trial to Lynn, Borges & Romanek’s “Executive Compensation Service” for 2010 (which includes the 2010 version of Lynn, Borges & Romanek’s “Executive Compensation Disclosure Treatise and Reporting Guide” that we mailed last week to those that ordered the Service).
Act Now: As part of the Lynn, Borges & Romanek’s “Executive Compensation Service,” if you try a no-risk trial now, not only will you receive the walkaway issue described above and the 1000-page plus Executive Compensation Disclosure Treatise, you will also receive the Winter issue of Proxy Disclosure Updates – with important new proxy disclosure guidance – soon after the SEC adopts its new executive compensation rules.
Corp Fin’s Chief Accountant Speaks: What’s Doing
In FEI’s “Financial Reporting Blog,” Edith Orenstein provides a rundown of remarks from Corp Fin Chief Accountant Wayne Carnall at an FEI conference recently. Here are related notes from WebCPA. [I’ll be down at the ABA meeting in DC today and will blog next week about any gloss Pat McGurn provides on these 2010 updates to RiskMetrics’ policies that came out last night.]
It is good to hear that Corp Fin’s “Financial Reporting Manual” will be updated soon to include 25-years worth of content based on meeting with the “CAQ Regs” Committee. Although as Edith tweeted, there could be a downside to adding 780 pieces of guidance (or subset thereof) to the Manual. That’s gonna be hard to memorize. [I’ll blog on Monday about the nature of the accounting proposals that passed the House Financial Service Committee yesterday, as reported by Edith. Too much going on.]
I laughed pretty hard reading Edith’s notes about the “secret societies” that meet with the SEC. Trust me, those meetings are not as exciting as they may sound – at least the ones I’ve been to.
Shocker! Rich Ferlauto Heading to the SEC
I almost fell off my chair when I read this press release yesterday that Rich Ferlauto is leaving AFSCME and joining the SEC as Deputy Director of Policy of the agency’s Office of Investor Education and Advocacy. It will be interesting to see if AFSCME will continue to be so active regarding shareholder issues without Rich – and it will also be interesting to see Rich wearing short-sleeve shirts and smoking from a corn cob pipe…
Here are some thoughts about Twitter that I posted a while back on “The Mentor Blog“:
Recently, I blogged about how you need to learn about Twitter since more and more executives are using it and you need to be able to recognize the corporate & securities law issues that arise, just like any other medium. I also noted that I’ve been regularly Tweeting since the beginning of the year.
With 10-months-plus experience under my belt, I can honestly say that – at this point – there probably isn’t much marketing value for lawyers to be on Twitter. If you blog, tweeting about your blog entries can help promote your blog and I think is a “must.” But most lawyers aren’t blogging – and until they do, I wouldn’t bother being a “regular” on Twitter right now. Following the blogs that cover your industry and interests is more educational and worth your time.
For me, one of my job descriptions is “journalist” so following others with like-minded interests helps me identify story ideas for the numerous blogs on our sites – so there is some value in Twitter for me. But so far, there are few folks with like-minded corporate law & corporate governance interests on Twitter (eg. think there are only two of us with M&A law background) so the marketing value of Twitter is pretty limited for you. And too many of the folks that I “follow” on Twitter continue to tweet about their personal lives and thus clog up my Tweetdeck with all sorts of useless drivel. Sorry, I really don’t care that your cat is sick.
If critical mass is reached and the marketing value proposition of Twitter for those of us in corporate compliance becomes real, I’ll let you know. Until then, Twitter’s value is limited to informational and not much in the way of marketing…
By the way, you may want to read Bruce Carton’s recent blog about whether the number of followers you have on Twitter may impact a client’s hiring decision. I gave my ten cents on the topic in a comment to the blog.
Obtaining followers is pretty easy now since folks have learned some tricks of the trade to quickly score hordes by using scantily clad women. According to the Avvo Blog, this is exactly what some have done recently (although there may have been “hijacking” involved per this article)…and another thing about Twitter, it can get snarky, as noted in this blog.
What About Twitter for Investor Relations?
In comparison to my thoughts about Twitter for marketing purposes, we have these somewhat different thoughts about Twitter for IROs from the Q4 Blog. Here is an excerpt from that blog:
Social networks are having a dramatic impact in helping marketers and public relations professionals increase brand awareness and build new relationships with consumers. But how have these tools been adopted in the highly regulated world of investor relations?
To answer this question Q4 analyzed 80 public companies and their use of Twitter during the Q2 2009 earnings season (a new report analyzing the 3rd quarter was just released – 270 more companies are now using Twitter). Some of the findings of the report which were issued in a press release revealed that:
– 55% are using Twitter for investor relations.
– 48% are using Twitter to engage with their audience.
– 34% of the companies were from the technology sector, including Cisco, Dell, Oracle and Sun to name a few.
– 68% provided a link to their Q2 quarterly earnings release.
Bear in mind that the stats above are culled from those companies using Twitter – based on the list of companies in Q4’s report, it looks like that number is relatively small right now, about 80. The list of companies is useful for those that want to monitor what others are doing now, since Twitter may well be here to stay. Personally, I worry about companies using Twitter to get their message out because the 140 character limit can impede placing words in context. More about this later…
Full-Time IR Website Manager: No Longer a Luxury
One of the more innovative – and capable – IR departments experienced a snafu last quarter when its earnings results was accidentally posted prematurely. Dominic Jones does a great job in his IR Web Report providing three lessons that this episode delivers.
