It was high drama over at SEC headquarters yesterday, as the Commissioners staged a lively debate about how best to address the issue of shareholder access to company proxy materials. Much like the situation with pre-release “spoilers” about “Harry Potter and the Deathly Hallows,” the SEC’s approach on this front was widely anticipated – as it appears that the major newspapers may have had more time than perhaps some of the Commissioners to review the draft releases. Here is Corp Fin’s opening statement.
The SEC took the unusual step of approving alternative proposing releases going in opposite directions. The 3-2 votes on both releases were right along party lines, except for Chairman Cox, who, in a remarkable display of dexterity, voted for both proposing releases. While this two-track approach will certainly buy some more time in what has already been a long and drawn out process since last fall’s AFSCME v. AIGdecision, it is not clear at this point how the SEC will ever decide on which approach to adopt or whether it will adopt any approach at all. It is hard to imagine that commenters will sway the Commissioners from their hardened positions, particular since most of the pros and cons of these proposed approaches have already surfaced through the extensive comments on the 2003 access proposal and in the more recent Proxy Roundtable Month.
The actual details of these proposals are of course still a little sketchy – perhaps even for the Commissioners who voted on them. Commissioner Nazareth complained at the open meeting about the fact that she had received a brand new draft proposing release on Tuesday which she termed the “Shareholder Non-Access Proposal.” Given the amount of time that the SEC has been considering these issues, it is certainly notable that the proposals were so fluid in advance of the meeting.
Rep. Barney Frank (D., Mass.) promised back in June that the House Committee on Financial Services will hold hearings on shareholder access once the rules are proposed. Yesterday’s alternative proposals should give the Committee plenty to talk about. We can only hope that the SEC’s indecision on this issue does not result in some sort of rash Congressional action that could ultimately make life more difficult for both companies and shareholders.
Status Quo versus Access by Significant Shareholders
Based on the Staff’s description, one of the proposing releases debated at yesterday’s meeting looks like something that the SEC might have done last fall, when the agency confidently announced that it was calendaring a proposal to address the uncertainty created in the wake of the AIG decision. This proposing release will include a Commission interpretation of Exchange Act Rule 14a-8(i)(8) confirming the long-standing position that companies may exclude from their proxy materials any proposals that would result in an election contest, or that would initiate a process whereby shareholders could conduct a future election contest by requiring that the company’s proxy materials include director candidates nominated by shareholders. The proposing release will also include proposed changes to the text of Rule 14a-8(i)(8) reflecting the Commission’s interpretive position.
The second proposing release will contemplate a fairly straightforward procedure that would enable significant shareholders to include binding access proposals in company proxy materials. Chairman Cox noted at the meeting that lessons were learned from the aborted effort to adopt a new Rule 14a-11 governing shareholder access back in 2003, and the same mistakes were to be avoided with these proposed amendments to Rule 14a-8. Under the proposed amendments, a shareholder would be able to include a shareholder nomination bylaw proposal in the company’s proxy materials only if:
– the proposal relates to a change in the company’s bylaws that is binding on the company if approved;
– the proposal is submitted by a shareholder or shareholder group that has continuously held more than 5% of the company’s securities for at least one year; and
– the shareholder or shareholder group is eligible to, and has, filed a Schedule 13G that would contain expanded disclosure about the shareholder proponent(s) and the proponent(s) and prior interactions with the company (Schedule 14A will also require this comprehensive disclosure).
Not surprisingly, the release is going to include proposed amendments to the proxy rules that would encourage the use of electronic shareholder forums, a much-maligned approach that was floated during the May proxy roundtables. Finally, the proposing release will include questions about the Rule 14a-8 process generally, which could potentially open the door for broader changes to shareholder proposals.
Some further insights on the shareholder access proposals are provided by good ole’ Billy Broc in this week’s Sarbanes-Oxley Report entitled “Shareholder Access: S.E.R.I.O.U.S.” Watch the short vidcast through to the credits (if you can bear it) for a special treat.
SEC Adopts the PCAOB’s Auditing Standard No. 5
One highlight of yesterday’s meeting is that the SEC hopefully closed the book on the most contentious aspect of the Sarbanes-Oxley Act’s implementation, by approving the PCAOB’s Auditing Standard No. 5 governing the audit of internal controls. Everyone is counting on this shorter, more principles-based and less prescriptive auditing standard as providing the basis for more reasonable and appropriately scaled audits of internal controls. The PCAOB has pledged to focus on ensuring that implementation of this standard by auditors is consistent with everyone’s noble vision, and the SEC has said it will keep up the heat on the PCAOB through the SEC’s oversight of the PCAOB inspection process. Here is Corp Fin Director John White’s opening statement.
The SEC also adopted a definition of “significant deficiency” for the purposes of SEC rules. Surprisingly, no 3-2 vote there.
Concept Release on Use of IFRS by US Companies
The SEC also voted to publish a concept release that will solict comments on the topic of permitting US issuers to prepare their financial statements using International Financial Reporting Standards as published by the International Accounting Standards Board. This concept release is going to be out for an unusually long 90-day comment period.
Earlier this month, I blogged about the potential Section 404 delay for non-accelerated filers that could result from the so-called Garrett-Feeney amendment to the Financial Services and General Government Appropriations Act (H.R. 2829). While the appropriations bill (including the Garrett-Feeney amendment) quickly passed in the House and was referred to the Senate, nothing further has apparently happened with the piece of the legislation regarding Section 404.
The Garrett-Feeney amendment specifically provides that “[n]one of the funds made available under this Act may be used by the Securities and Exchange Commission to enforce the requirements of section 404 of the Sarbanes-Oxley Act with respect to non-accelerated filers, who, pursuant to section 210.2-02T of title 17, Code of Federal Regulations, are not required to comply with such section 404 prior to December 15, 2007.” I thought that the language of this legislation was curious, because to date there really has been little evidence of SEC efforts to actually enforce the requirements of Section 404. In fact, I think that the SEC has generally sought to make implementation of Section 404 go as smoothly as it possibly could by not resorting to more drastic measures – such as delistings and Enforcement actions – as the means for compelling companies to finish their internal control assessments on time.
This “honeymoon” period with Section 404 may be coming to an end, as it looks like there is at least one ongoing Enforcement investigation involving a company that may not have completed its Section 404 work when required. In a Form 8-K filed last December, Hawk Corporation announced that the SEC Staff had made an informal inquiry requesting information about: Hawk’s preparations for complying with Section 404; transactions in the company’s common stock on June 30, 2006 by a stockholder not affiliated with the company and the impact of those transactions on when Hawk needed to comply with Section 404 (Hawk notes on its Form 10-K that it is a non-accelerated filer – therefore, it would have to complete its first Section 404 internal control assessment for next year’s 10-K absent any further extension); and communications between Hawk and a third parties regarding Section 404 compliance. Hawk also noted in the Form 8-K that it had been contacted by the Justice Department regarding that agency’s related investigation of the company. At the end of May, Hawk filed another Form 8-K announcing that Enforcement had obtained a formal order to investigate this matter, which was expanded to look at the company’s maintenance and evaluation of effectiveness of disclosure controls and procedures and internal controls over financial reporting, as well as Hawk’s periodic disclosure requirements related to these matters.
There is no telling if the SEC or DOJ will ultimately bring any charges as a result of their investigations, but Hawk’s situation certainly signals that, nearly five years following enactment of Sarbanes-Oxley, any forbearance in actually enforcing the requirements of Section 404 has probably run its course.
PCAOB Proposes Independence Rule Changes
Yesterday, the PCAOB proposed a new ethics and independence rule entitled “Communications with Audit Committees Concerning Independence.” This rule would replace the PCAOB’s interim independence requirement, Independence Standards Board Standard No. 1 (and two related interpretations), and would require independence communications with the audit committee prior to commencement of an engagement and then annually for continuing engagements. The Board also proposed amendments to current PCAOB Rule 3523, “Tax Services for Persons in Financial Reporting Oversight Roles,” as a follow-up to a favorably-received concept release issued earlier this year.
As Edith Orenstein notes in FEI’s “Financial Reporting” Blog, the proposed amendments to the tax services rule “would exclude the portion of the audit period that precedes the beginning of the professional engagement period, from being deemed a ‘prohibited service’ under Rule 3523. As explained by PCAOB Assistant Chief Auditor Bella Rivshin, this will be accomplished by striking the words “audit and’ from the current text of Rule 3523. A number of PCAOB board members said they support this proposal, as it would not unduly limit choice among potential audit firms based on tax services provided to individuals at the company prior to commencing the audit engagement. PCAOB staff noted that registered audit firms would be still need to look at facts and circumstances and determine if independence is impaired under the SEC’s audit independence rules.”
The FEI Blog goes on to note that the proposed new rule on independence communications with the audit committee would “change the threshold of what needs to be communicated from matters which – in the auditors’ professional judgment – could impair independence, to matters that a reasonable investor (i.e. third party) may perceive as impairing the auditors’ independence.” The PCAOB will seek comment on whether there should be a specific look-back period for providing information about services that could impair independence, as well as the extent to which information about the independence of non-affiliated secondary auditors must be included in the communications with the audit committee.
These PCAOB proposals will be out for a 45-day public comment period.
Chuck Nathan on Appraisal Rights
In this DealLawyers.com podcast, Chuck Nathan of Latham & Watkins provides some insight into a recent Delaware case – In re: Appraisal of Transkaryotic Therapies(Del. Ch. Ct., 5/2/07) – dealing with appraisal rights, including:
– What happened in the recent Transkaryotic Therapies case?
– How might the case impact appraisal rights going forward?
– What might it mean in terms of the strategies that hedge funds pursue?
While yesterday’s blog provided an example of one professional’s good fortune to dodge serious sanctions for securities law violations in two separate cases, I don’t think that means the SEC is likely to be going soft on “gatekeepers” any time soon, particularly when the gatekeepers have a direct hand in the violations. This is probably no better demonstrated than in an action the SEC filed earlier this year against Enron’s former in-house attorneys. The defendants in this ongoing civil case are Jordan Mintz, who was an in-house Enron tax lawyer and ultimately General Counsel to Andy Fastow’s Enron Global Finance department, and Rex Rogers, who was Enron’s principal in-house securities lawyer and a former SEC Staffer. In the complaint, the SEC charged both lawyers with primary violations of anti-fraud and reporting provisions. Mintz was also charged with books and records violations and lying to auditors, while Rogers was charged with aiding and abetting Ken Lay’s violations of Exchange Act Section 16(a).
This case focuses on violations arising from Enron’s failure to disclose, or to otherwise adequately disclose, related party transactions pursuant to Item 404 of Regulation S-K, as well as under the financial statement requirements. The allegations focus on efforts by the lawyers to hide the nature and scope of the related party transactions occurring between the company and the LJM partnerships, as well as the role of Enron executive officers in the transactions. As Enron’s stock price declined in 2001, pressure to avoid disclosure about the details of the related party transactions increased, and the lawyers are alleged to have come up with ways to delay or avoid the required disclosures, or ways to have omit or misrepresent material facts when disclosures were made. The SEC is going all out in seeking disgorgement, civil money penalties and officer and director bars in this proceeding.
Even though the outcome of this case is yet to be decided, the complaint in this matter is notable for its descriptions of the ways in which the in-house lawyers allegedly participated in the scheme to avoid disclosures – including their efforts, as Mintz wrote in an email to Rogers “to be ‘creative’ on this point [disclosure of Fastow’s compensation from the LJM partnership] within the contours of Item 404 so as to avoid any type of stark disclosure, if at all possible.” [Are people still writing emails like this?]
With the clock ticking, this case may be among the last that we will see filed against Enron defendants. Given that the SEC has pursued relatively few notable related-party transaction cases in the past, this one is certainly a must-win for the SEC.
The New Related Person Transaction Disclosure Rules: Life After Enron
The efforts to be “creative” at Enron likely had a big hand in shaping the changes that the SEC made to Item 404 of Regulation S-K last summer. In this way, the Enron complaint is a good guidance for what not to do when preparing your related person transaction disclosures under the new rules.
While Item 404 had really been a principles-based rule before “principle-based” was cool, the SEC attempted to make the rule more principles-based by stripping off some of the instructions and provisions that it thought could lead to outcome-oriented, tortured readings of the rule. The SEC also very purposely revised the wording to broaden the requirement, changing the old “related party” to “related person” and calling for disclosure if a company is a “participant” in (rather than a “party” to) a transaction. As the Staff has noted, these changes were designed to elicit disclosure about more than just contractual parties, and should reach arrangements – such as the side deals highlighted in the Enron complaint – that are not necessarily memorialized in deal documents or signed up on a dotted line.
The SEC also tried to clarify the broad scope of the term “transaction” as used in Item 404 – a transaction is defined to include, but not be limited to, any financial transaction, arrangement or relationship (including any indebtedness or a guarantee of indebtedness) or any series of similar transactions, arrangements or relationships. The new rules also make it much clearer that you have to disclose the dollar value of the amount of the related person’s interest in the transaction, which is to be computed without regard to the amount of profit or loss, removing the “where practicable” exception from the rule that could be used to creatively avoid disclosure.
The SEC also expanded the related persons covered by the rule to include stepchildren, stepparents and any person (other than a tenant or employee) sharing the household of a related person. The rule now requires disclosure of transactions involving the company and a person (other than a significant shareholders or immediate family member of a significant shareholder) that occurred during the last fiscal year, if the person was a “related person” during any part of that year, in an apparent effort to prevent folks from avoiding the disclosure requirements by artificially timing transactions or appointments. Finally, the SEC seemed to adopt the Item 404(b) disclosure requirement regarding review and approval of related person transactions as a means of encouraging companies to adopt some management or director oversight of related person transactions, which was starkly lacking at Enron based on the allegations in the complaint.
Compliance with Item 404 has always been tough, because the rule requires significant materiality judgments about very sensitive transactions, without a lot of helpful guidance or parameters. Following the SEC’s efforts to “streamline and modernize” the rule, compliance was certainly made even more difficult, now that some of the guidelines disappeared. Nonetheless, the principles-based nature of the rule is not going to prevent folks from figuring out creative ways to avoid sensitive disclosures, nor will it prevent the SEC from continuing to bring cases questioning judgments about related person transaction disclosures. Be sure to check out our “Related Party Disclosures” Practice Area and our “Related Party Transactions” Practice Area for the latest developments in this area.
Early Bird Expires Tomorrow: 3rd Edition of Romeo & Dye Section 16 Treatise
Peter Romeo and Alan Dye are hard at work updating their two-volume Section 16 Treatise. The Treatise is the definitive work in this area with thousands of pages of reference material.
Order your set by tomorrow, July 25th to receive a pre-publication discount now – you can order online or by fax/mail with this order form. The Treatise will be completed and delivered to you in the Fall.
For most senior executives, in particular top legal officers, an SEC action can often be considered the ultimate CLM – a Career Limiting Maneuver. Apparently that is not the case for David Drummond, who serves as Senior Vice President, Corporate Development and Chief Legal Officer of Google. With two SEC actions now behind him, Drummond seems to be going strong.
Last week, the SEC announced a settlement of its actions against four former executives of SmartForce PLC, its former outside auditor, and the company’s former audit engagement partner. In what boiled down to a revenue recognition case, the SEC alleged that SmartForce’s senior financial personnel had prepared financial statements that recognized revenue improperly from various types of transactions, including multiple-element arrangements, reciprocal transactions and reseller agreements. The SEC noted that Drummond, who served as Chief Financial Officer of SmartForce, was ultimately responsible for the financial statements and violated the Exchange Act reporting provisions by failing to determine whether SmartForce was improperly recognizing revenue on reseller agreements, failing to communicate information about a reciprocal transaction to accounting staff, and failing to determine whether the reciprocal transaction complied with GAAP. As noted in an article from Friday’s WSJ, David Drummond’s attorney stated: “In retrospect, Mr. Drummond acknowledges that he would have been better served in his role at SmartForce had he possessed an accounting background.” In the settlement, Drummond agreed to disgorgement and a civil penalty totaling over $600,000 plus a cease & desist order, but he faces neither an officer and director bar nor any improper professional conduct penalty.
David Drummond also got caught up in a 2005 SEC action involving Google’s failure to register employee option transactions under the Securities Act and to provide required information to option recipients. That proceeding focused on Drummond’s role, this time as General Counsel of Google, in determining whether Rule 701 or another Securities Act exemption applied to the company’s employee stock options transactions prior to its IPO. The company filed a rescission offer for those options transactions after it determined that the claimed exemptions were not available. In settlement of that Enforcement proceeding, Drummond agreed to a cease and desist order for Securities Act registration violations.
With those serving in the roles of General Counsel and Chief Financial Officer seemingly in the SEC cross-hairs with the recent spate of options backdating cases, these two cases demonstrate that settling an SEC action is not always the end of the world. You really need to examine the circumstances of each case, and the penalties imposed, in judging the overall impact of the case on the individuals involved.
Disclosing the SEC’s Enforcement Interest in an Executive Officer
The then-pending SEC investigation of David Drummond’s role at SmartForce surfaced shortly before Google’s high profile IPO back in 2004. The company’s prospectus included somewhat ugly disclosure about the Staff’s intention to recommend that the SEC bring a case against Drummond, and noted that the Staff had offered him the chance to make a Wells submission and that he intended to make such a submission.
This situation highlights the often difficult question: “When is the right time to disclose an SEC investigation against the company and/or one of its executive officers?” While Item 103 of Regulation S-K provides that governmental proceedings “known to be contemplated by governmental authorities” against the company need to be disclosed, Item 401(f) of Regulation S-K – which covers legal proceedings involving officers and directors – includes no such language about “contemplated” proceedings. Practices continue to vary as to when companies will choose to disclose pending SEC investigations involving a company, its officers and directors, although certainly a “Wells” call from SEC Staff is more likely today than ever to result in public disclosure about the investigation. In the absence of a bright-line test for determining when to disclose a pending investigation, some have criticized how long it takes for ongoing investigations to come to light. In fact, last summer an individual sent a rulemaking petition to the SEC asking that it adopt a rule requiring a Form 8-K filing shortly after the company receives a Wells notice. I suspect that, given all of the other things on Corp Fin’s plate and the general sense of “8-K fatigue,” this petition won’t be acted on anytime soon.
As demonstrated by the situation with David Drummond, disclosing the SEC’s interest in an executive at the Wells stage can result in disclosure that the company may have to live with for some time. Three years have gone by since the initial disclosure in Google’s IPO prospectus about the investigation, and Google has included the same disclosure in each 10-K for the last three years about the existence of the Wells request and Drummond’s Wells submission – with no update as to the status of the investigation. Had the case not been settled, this disclosure could have certainly gone on indefinitely.
For more information about disclosure of SEC investigations, check out our “FAQs re: Disclosure of Enforcement Proceedings” and our “Sample Disclosures of SEC Actions” in our “SEC Enforcement” Practice Area.
Posted: July-August issue of Deal Lawyers print newsletter
We have just sent our July-August issue of our new newsletter – Deal Lawyers – to the printer. Join the many others that have discovered how Deal Lawyers provides the same rewarding experience as reading The Corporate Counsel. To illustrate this point, we have posted the July-August issue of the Deal Lawyers print newsletter for you to check out. This issue includes pieces on:
– The Leveraged Buy-Out with a Public Stub: Deals So Far and Factors to Consider
– “I’ll Swap Two Derek Jeters and a Pack of Cherry Bazooka for Five Barry Bonds”
– Taming the Tiger: Difficult Standstill Agreement Issues for Targets
– Drafting Forum Selection Provisions
– The “Sample Language” Corner: Joint Governance Provisions in Merger of Equals Transactions
Act Now: Try a no-risk trial today; we have special “Rest of 2007” rates, which includes a 50% discount – and a further discount for those of you that already subscribe to The Corporate Counsel. If you have any questions, please contact us at info@deallawyers.com or 925.685.5111.
We have posted a new nifty chart that analyzes what the SEC and NYSE rules, disclosure, lenders and D&O insurer issues are implicated under six different scenarios involving auditing crisises, including:
– Auditor gives SAS 71 letter with exceptions
– Auditor unable to perform SAS 71 review
– Failure to file Section 906 certification
– Failure fo file a Form 10-Q
– Unable to file clean 906 CEO/CFO certification in a timely manner
– Auditor pulls opinion
– Decision made to reaudit
CEO Turnover and Succession
In this podcast, Steve Wheeler of Booz Allen Hamilton analyzes the latest trends regarding CEO turnover and succession planning (as reflected in Booz Allen’s recent study), including:
– What are the most notable trends you found in your study?
– What do you see happen to most CEOs at targets in the wake of a merger?
– What do you see happen to CEOs at companies that are not performing well?
– What are the timeframes that companies are looking at for CEO performance?
– Are the trends different on a global scale?
– Your study talks about the end of the imperial CEO and the beginning the era of the inclusive leader – what does that mean for companies and CEOs?
It’s Just Human Nature: Playing “Fast and Loose” in the Credit Market
This WSJ article is one of those that you read and it gives you pause. This excerpt says it all:
“In a new report that assesses the status of the market, the Moody’s Corp. unit said it was passed over and not hired for 75% of the commercial mortgage-backed securities rating assignments issued in the past few months as a result of its requirement that issuers add an extra layer of credit enhancement. Moody’s said issuers are “rating shopping” — meaning they were hiring competitors that would hand out higher ratings on securities. Because Moody’s makes money rating the creditworthiness of bond issuances, blacklisting could potentially eat away at the firm’s bottom line if the trend continues.”
Brings back memories of why Congress forced the SEC to conduct a study back in 2003 regarding the role and function of rating agencies in the markets – which then led to the Credit Rating Agency Reform Act of 2006 (which gave the SEC more power over rating agencies). Learn more in our “Rating Agencies” Practice Area.
As the rumors predicted, the SEC will hold an open Commission meeting next Wednesday – July 25th – to propose some version of shareholder access; adopt a definition of “significant deficiency”; approve the PCAOB’s AS #5; and issue a concept release on IFRS.
Is the SEC Allowed to Float Drafts of Proposals?
As Dave blogged last week, the WSJ reports that a draft of the SECs’ shareholder access proposal has been making the rounds – but until we see what is announced at the open meeting, it is hard to know what version of it will actually be proposed.
Some members have asked whether the SEC is permitted to circulate a draft outside of the SEC before the Commission meets to formally propose a rule. I guess that depends on one’s interpretation of the Administrative Procedures Act (which is the Act that governs rulemaking by the federal government). I am far from an APA expert, but I think that the biggest issue is not so much that someone at the SEC gave a copy of a draft proposal rule to someone – the issue may be that the SEC did not process any comments received on a draft in accordance with the APA (ie. make them publicly available). Every so often, you will see a memo briefly summarizing a meeting between SEC Staffers and outside parties that is posted on the public comments section of the SEC’s website; this is done to comply with the APA.
On the other hand, some members have distinguished between talking about the general concepts with outside parties (as being generally okay) – from releasing specifics about a proposal even before the Commission has voted on it. One member points out that “leaks” are nothing new and occurred way back in the day when the tender offer rules were revised in the early ’80s – and that this resulted in some quasi-whistleblowing activity. I suspect that floating drafts goes on more than we know – but I would bet the final product probably is the better for it…
McGuire Woods put out this interesting client memo earlier this week:
“IRS officials continue to explain how the IRS will use FIN 48 Disclosures and SEC correspondence in examining taxpayers. As previously reported (see “IRS Releases Internal Memoranda on FIN 48“), the IRS is studying whether its policy of restraint on tax accrual workpapers remains sufficient in the new world of uncertain tax position disclosures. For now, the policy of restraint remains in effect with respect to FIN 48 workpapers. Nevertheless, the IRS is forging ahead with training examiners to more effectively audit taxpayers using FIN 48 Disclosures, as well as publicly available Securities and Exchange Commission (SEC) correspondence on those disclosures. In fact, FIN 48 Disclosures are the “centerpiece” of this year’s training for IRS agents, according to Robert D. Adams, Senior Industry Advisor to LMSB Division Commissioner Deborah Nolan.
In addition to the FIN 48 Disclosures, IRS agents are being trained on reading SEC comment letters issued to taxpayers and the accompanying taxpayer responses. Some disclosure filings made to the SEC are selected for review. SEC staff may provide filers with comments on these filings in situations in which the SEC believes the filings could be improved or enhanced. Once the SEC reviews are completed, the comment letters and responses are made available online in 45 days. Although the purpose of SEC filings is to give investors the information they need to make informed decisions about the financial position of companies, including risks associated with tax positions, comment letters and responses with respect to these filings may provide ‘helpful’ tax information to IRS agents.”
Last Chance: Early Bird Discount Expires Tomorrow
For those watching via webcast, don’t forget that the Early Bird deadline expires tomorrow – Friday, July 20th. So this is your last chance to take advantage of a nice discount on the Member Appreciation Package to catch these October Conferences by video webcast:
We know that next proxy season will be as challenging as this past one, as the SEC continues to tweak its rules or interpretations of them – and as companies tweak what they disclosed after they see what emerging best practices are. So take advantage of this discount while you can.
We promise that these Conferences will be as practical as they were last year. These Conferences focus on developing practical skills with proven effectiveness. If you have questions, please contact me – or our HQ at info@thecorporatecounsel.net or 925.685.5111.
In this podcast, Peggy Foran of Pfizer explains the company’s new policy regarding board engagement, including:
– What does Pfizer’s new policy entail?
– How will the board’s activities under the new policy differ from what the Pfizer board has done in the past?
– Some commentators have urged that the Pfizer board’s “engagement” be webcast so that more shareholders can participate. Why won’t it be?
Management-Shareholder Engagement: The Results Are “In”
Speaking of “engagement,” did you catch this WSJ article on Monday that summarizes how the proxy season unfolded? This quote from ISS’ Pat McGurn encapsulates the piece: “We’ve never had a season that had so much activity going on in the wings and much less taking place center stage.”
What really struck me was that “24% of shareholder proposals for annual meetings were withdrawn this year, as of July 6.” Wow! That’s truly amazing, particularly given that there are many proponents with whom it’s a waste of time to even attempt to negotiate a proposal “out.” But clearly, more and more companies are realizing it’s worth the time to “engage” with those proponents who are willing to meet somewhere in the middle on the issues raised (and remember, those issues are not always those presented in a shareholder proposal – many proponents have ulterior motives, which they cannot include in a proposal because it might be excludable under the bases in Rule 14a-8).
Over the last few days, plenty has been written in the media about how the Whole Foods CEO John Mackey has been posting messages – anonymously – about his company and his competitor on this Yahoo! message board devoted to Whole Foods’ competitor Wild Oats (if you want to read some of the CEO’s posts related to Wild Oats, scroll down for the URLs in this blog). Wild Oats is now in the process of being bought by Whole Foods, but first needs anti-trust clearance from the Federal Trade Commission – and the FTC has sued to block the deal. The CEO’s postings came to light when they were mentioned in the FTC’s memo filed last week to support its motion for a preliminary injunction (and here is the FTC’s original complaint). According to this NY Times article regarding “sock puppets,” Mackey has been posting anonymously for 8 years.
Lord knows why Mackey has been doing this, particularly given that he is one of those rare CEOs that has his own blog, which he can use to express his views. For more on issues raised by employees that blog, see our “Employee-Blogger” Practice Area.
My take on the provocative story is that I didn’t realize that folks were still using message boards. That’s so ’90s! Back then, everyone was concerned about cybersmears and message boards – and how they could impact your stock price. It was such a big issue that I got halfway through writing a book on the topic, that I ended up scrapping because the issue dropped off the edge of a cliff, as everyone migrated away from message boards as “bigger and better” things to do on the Web emerged.
Apart from potential legal issues and liabilities, the biggest problem I have with this CEO’s activities is that it sets a poor example by the company’s leader. Back when I wrote on this topic, one area I would focus on is how companies should adopt policies to ensure employees didn’t post messages about their employer due to legal and other reasons. Here is a set of FAQs on Cybersmears and Message Boards that I wrote at least five years ago – note that it includes a section on “Potential Employer Obligations Arising from Employee Messages” that probably holds water even today. I didn’t think to include a statement that anonymous postings by a CEO could tank a merger…
The Whole Foods Fiasco: What are the Disclosure and Securities Laws Issues?
On his “The Race to the Bottom” Blog, Professor Jay Robert Brown does a great job of analyzing the securities law issues implicated by the Whole Foods anonymous posting incident as follows:
“The WSJ has reported that the Commission has opened an investigation into the activities of Whole Foods CEO John Mackey. It seems that Mackey over an eight year period made posts on an online stock forum run by Yahoo using a pseudonym. Mackey, according to the WSJ report, “lauded Whole Foods’ stock, cheered its financial results and bashed a company Whole Foods made a bid to acquire.” Some of the posts are here. The Journal speculated that the SEC might be looking into whether Mackey’s statements contradicted statements made by the company, were “were overly optimistic about the firm’s performance,” or violated Regulation FD.
We talk often about SOX, particularly in the context of investor confidence. Accurate disclosure is, in the end, at the core of investor confidence. But, while Mackey may have exercised very poor judgment, does that equate to a violation of the securities law?
There are two broad categories of possible violations. They include fraud (making materially incomplete or inaccurate statements) and selective disclosure (providing material information to select persons in the market). My book, The Regulation of Corporate Disclosure, examines these topics in detail.
Selective disclosure is not per se improper, a legacy of Chiarella. (We have criticized the awful reasoning of this case on my blog. Suffice it to say that it validated deliberate selective disclosure by corporate insiders in some cases). Regulation FD was a regulatory response to this case and the problem of selective disclosure. Regulation FD does not exactly prohibit selective disclosure. Instead, to the extent a company (through its agents) deliberately discloses material non-public information to certain investors/market professionals, it must simultaneously make public disclosure of the information. A company that accidentally disclosed material non-public information on a selective basis has 24 hours to disclose it to the entire market. See 17 CFR 243.100, et seq.
These provisions will be very difficult to apply to Mackey. First, with respect to Regulation FD, the SEC will have to show that Mackey disclosed material nonpublic information. Second, once disclosure occurs, it is not the disclosure of the information that violates Regulation FD but the failure to disclose the information to the entire market. This burden rests with Whole Foods. The SEC will need to show that Whole Foods knew about the disclosure and failed to meet the requirements of Regulation FD. While the CEO made the disclosure and he is an agent of Whole Foods, the SEC and courts may have a hard time attributing the information to the company given Mackey’s the possible stealth involved (indicated by the reported use of a pseudonym). Finally, Regulation FD only applies to disclosure to certain types of investors or market professionals such as analysts. It really was not intended to apply to disclosure that was arguably to the entire market. Disclosure in the Yahoo forum is arguably to the entire market (and, in any event, would arguably meet the defintion of “public dislcosure” for purposes of Regulation FD).
As for the antifraud provisions (primarily Rule 10b-5), there is no question that the prohibition on fraud applies to material disclosed on the Internet. Posting false information or making inaccurate statements in chat rooms or threaded discussions can be the basis of a fraud suit much the same was as false statements in press releases. The SEC will need to show that Mackey made materially false or incomplete statements. The problem here is materiality. Since he used a pseudonym, the market was arguably unaware that he was directly connected to Whole Foods. As a result, the market may have not treated his statements as material but instead viewed them no different than uninformed statements from ordinary investors.
This is not, however, the end of the story. Even without disclosing his identity or role in the company, the depth of the comments, the accuracy over time, and the uniqueness of the information, may well have alerted the market to the fact that he had unique information that could only come from an insider (either because he was an insider or because he was communicating with an insider). In those circumstances, those in the market may well have treated the statements as material. Analysts who follow Whole Foods in Yahoo could probably resolve this.
We shall see where this case goes. At a minimum, it suggests that top officers ought not to be communicating (perhaps at all but certainly not through pseudonyms) in chat rooms and investor forums.”
Romeo & Dye Analyze New Section 16 Interps
Recently, the SEC Staff issued long-awaited Staff interpretations on Section 16 issues. In the latest issue of Romeo & Dye Section 16 Updates – which was just mailed – Peter and Alan analyze the numerous new and modified interps, including a controversial one regarding aggregate reporting that will have a widespread impact on many Section 16 filings.
Act Now: To receive this critical guidance, take advantage of our “Half-Off for the Rest of 2007” No-Risk Trial for Romeo & Dye’s Section 16 Annual Service. Note that this Annual Service is a print service and this guidance is NOT available on Section16.net.
With voluntary E-Proxy now effective, many companies have been waiting to see what fees will be charged by Broadridge (formerly known as ADP) in order to run a cost-benefit analysis and determine whether cost savings would truly be realized by using E-Proxy (don’t forget our “Cost-Benefit Worksheet“). Broadridge’s fees have finally been announced – and I believe they work like this:
1. Existing fee rates remain in place for beneficial owner processing.
2. If an issuer decides to use voluntary E-Proxy, the following incremental/step-based fees apply for sending a notice, etc. to beneficial owners:
– First 10,000 accounts @ $0.25 per
– Next 10,001 – 100,000 accounts @ $0.20 per
– Next 100,001 – 200,000 accounts @ $0.15 per
– Next 200,001 – 500,000 accounts @ $0.10 per
– 500,001 + accounts @ $0.05 per
Regardless of the number of accounts that an issuer wants to “E-Proxy,” Broadridge will charge a minimum fee of $1500. In other words, if an issuer wants to E-Proxy to just a few accounts, the fee will be $1500 regardless of step-based fee formula above (but this floor is not a fee that is tacked onto the step-based fee).
As an example of how this works, an issuer using E-Proxy for 100,000 beneficial owner accounts would incur fees as follows:
– First 10,000 accounts @ $0.25 = $2,500
– Next 90,000 accounts @ $0.20 = $18,000
Total Cost = $20,500
3. Rather than have separate fees for various services, Broadridge will provide the following services as part of the step-based fees above (ie. they are “inclusive”): print and fulfillment (ie. mail) services for the notice; fulfillment and fulfillment support for hard copy requests; 800# set up; Internet and 800# voting, support two work flows (sending notices and hard copy proxy materials), and will also provide a standard landing web page (ie. where shareowner inputs control number) and standard shareowner portal (ie. where shareowner arrives once the control number is recognized; this is where proxy materials, voting platform and place to request hard copy is located).
Issuers can upgrade and have a customized landing page and shareowner portal, where the fee will vary depending on what features an issuer wants. Annual storage fees for hard copies are approximately $1,000 per document (so storage is cheaper if you have a combined proxy and annual report vs. two separate documents) for the first 5,000 copies and $800 for every 5,000 after that.
4. Note that same rates in #2 above apply if Broadridge is hired to send notice, etc. to registered owners. However, when calculating costs, the registered accounts are not combined with beneficial accounts. In other words, when making your registered owners calculation, you start at the top of the step-based fee ladder.
5. Broadridge’s suppression fees remain in place for large issuers (>200,000 positions) at $0.25 per suppression, and changes slightly for small issuers (<200,000 positions) to $0.40 per suppression for householding, etc. The e-delivery suppression fee, however, remains at $0.50 for small issuers.
The NYSE’s and SEC’s (Lack of) Role in Broadridge’s E-Proxy Fee-Setting
Note that the NYSE and SEC aren’t directly involved in Broadridge’s fee-setting process regarding E-Proxy. In contrast, the SEC requires issuers, brokers and banks to ensure that proxy materials are distributed to beneficial owners – and NYSE Rule 465 governs the fees paid by listed companies to brokers and banks for their distribution of proxy materials and other communications to the shareholders. Nearly every broker and bank have contracted with Broadridge to perform the functions related to these beneficial ownership obligations, including distribution of proxy materials, proxy tabulation and responses to requests for shareholder lists; resulting in a near-monopoly.
Under Rule 465, the NYSE and SEC are required to bless how much Broadridge charges brokers and banks to forward proxy materials to shareholders (issuers reimburse these brokers and banks – in practice, issuers directly get billed by Broadridge). This rate-setting exercise occurs every few years, with the last rate-setting transpiring in 2002. As part of this fee-setting process, the public is allowed to comment.
Under E-Proxy, Rule 465 comes into play only to the extent an issuer continues to rely on affirmative consents to e-delivery – or chooses to send paper to some beneficial owners. So, the SEC and NYSE largely remain uninvolved in setting Broadridge’s E-Proxy fees – something that has a number of issuers concerned, judging by the e-mails I recently have been receiving from some in-house members.
E-Proxy: The Issue of “Usability”
When E-Proxy was proposed, one fear expressed by commentators was that companies aren’t sufficiently prepared to provide proxy materials and a voting platform that enables shareholders to easily access the materials and vote. By looking at the first handful of companies that have revealed that they are trying E-Proxy, this fear may not have been far off the mark.
Here is one thought from an anonymous member: “What gets me about these initial E-Proxy companies is that everyone is following the prevailing vendors’ (some say manipulative) leads – in requiring people to enter their voting codes in order to view the proxy materials. The voting code should only be required to execute a proxy – not to view or print.
To my eyes, the SEC rule plainly states that the url/link provided to shareholders needs to link directly to the materials, no navigation required. I’d venture that the fact that a code is required to view could be interpreted by some as not being “public” in the general understanding of the word, as well. This technique is likely to make the first shareholder experiences less palatable and chase people back to paper. All those people who try to go to a site without the code in hand will bail and opt for paper. We have nanosecond tolerances these days on the web.”
If you read the transcript from our recent E-Proxy webcast (or listen to the audio archive), Dominic Jones did a great job talking about usability. Here are three recent blogs from Dominic that delve more into the usability of the first E-Proxy volunteers:
Let the games begin! Our new game is called “Executive Compensation Disclosures: 51 Tips.” Our goal is to generate a bunch of practical tips that can increase the effectiveness of the processes for – and content of – your company’s executive compensation disclosures.
What’s In It For You? Four things:
1. You participate in a fun game.
2. You learn practical tips to improve your compensation disclosure skills.
3. You share some practical tips with an eager audience.
4. You achieve fame (if you want). You get points and – if you are one of the five top scorers – get your name placed in the Hall of Fame. If you wish to remain anonymous, that is fine too. No one will be acknowledged publicly unless they consent.
How to Play: Send us some practice tips on how to best navigate or improve the compensation disclosure drafting process or draft better disclosures, including things that you have seen a lot of companies do wrong this proxy season. Keep your tips brief (three or four sentences and not more than 50 words). Send us at least one tip and not more than five tips before the deadline.
How to Win: Any tip earns you 10 points. The best tips receive a bonus score of 50 points, the second-best ones earn 30 points, and the third-best ones earn 15 points. If you are among the top five scorers, your name is added to our Hall of Fame (if you consent to being named). All participants will be sent an email with their point total.
How to “Cheat”: Reflect on your own experience and derive important tips. We also encourage you to borrow ideas from your friends and coworkers. This really isn’t cheating – but my kids are always looking for the “game cheats,” so I felt compelled to act like there might be “cheats” involved.
How to Send Your Tips: Just email them to broc@naspp.com. Remember the limit of five tips. The deadline is close of business on Wednesday, August 1, 2007.
The Latest Compensation Disclosures: A Proxy Season Post-Mortem
We have posted the transcript from our recent CompensationStandards.com webcast: “The Latest Compensation Disclosures: A Proxy Season Post-Mortem.”
It’s a Wrap! California’s Stock Option Proposal
A few weeks ago I blogged about the status of the proposed changes to the California Department of Corporations’ proposed stock option regulations. These regulations are now final – and we have posted related memos in our “Rule 701″ Practice Area. Below is an excerpt from a Fenwick & West memo (which contains a nice chart):
“Effective July 9, 2007, California liberalized its regulations concerning the permissible provisions of stock option plans. Practically every stock option plan of a privately-held company that has employees in California that participate in the plan can take advantage of this liberalization.
For decades, California was unique among the 50 states in the stringency of its regulation of the scope of permissible provisions that a stock option plan or restricted stock plan could contain. For example, only California required that stock options granted to non-officer employees in California must “vest” (meaning that the shares could not be repurchased on termination of employment by refunding the purchase price) at an annual rate of at least 20% of the shares subject to the stock option.
Non-compliance with even one of the regulatory requirements meant that rather than the company being able to file a simple notice, and pay a small fee to, California, the company would have to submit a pages-long application to the California Dept. of Corporations, which could easily cost $10,000 or more to prepare. The liberalization of the regulations means this is far less likely to occur.”
Congress Tightens “National Security” Reviews of Foreign Investment in the US
On Wednesday, Congress passed the “Foreign Investment and National Security Act of 2007” to formalize and tighten the process for reviews of foreign acquisitions of businesses in the US that raise potential national security concerns. The new Act amends the “Exon-Florio Amendment to the Defense Production Act” and codifies – as well as extends – recent trends toward more stringent review of foreign acquisitions by the Committee on Foreign Investment (CFIUS), which is an interagency committee chaired by the Treasury Secretary and composed of various representatives of the executive branch. There are also enhanced Congressional reporting requirements.
The new Act cleans up many of the provisions of earlier proposals considered problematic by the business community. We have posted memos regarding this development in our “National Security” Practice Area.
Friday the 13th: Be Scared
Did you know that thieves can steal your checks, etc. by having the ink “wash” off the payee and amount (with acetone), leaving your signature, write in any amount, and cash it? Check out this video to understand more (it may take a while to load as its 6 minutes long). Apparently, the Uniball 207 is the only pen whose ink chemically bonds to the paper so it won’t wash off…
