Last Thursday, the WSJ ran this article regarding the recent 11th Circuit decision in SEC v. Smyth. Russ Ryan, a former Assistant Director of the SEC’s Enforcement Division, who is now at King & Spalding LLP explains further:
“In a startling footnote 14 at the very end of the opinion, the court dropped a bombshell that questions the enforceability of just about every injunction the SEC has obtained in recent memory. The court essentially said an injunction can’t be just a broad prohibition against future violations of a statute or rule, because all that does is tell the defendant to “obey the law” without specifying what particular acts are prohibited.
Although the footnote is dictum in a technical sense, the case could have far-reaching consequences for the SEC’s enforcement program. The injunctions in Smyth were no different than any other SEC injunction, at least as far as settled cases go. That is, they simply tracked the language of the relevant statutes and rules, and told the defendants and their cohorts not to violate them again.
At a minimum, district courts within the 11th Circuit presumably won’t be signing off on future settlements with similarly worded injunctions. So unless the 11th Circuit somehow retracts it criticism of such language, the SEC is going to have to get more specific in any injunctions it seeks within that circuit, or it will have to file its cases elsewhere. And, of course, if other federal courts are persuaded to follow Smyth’s logic, they won’t sign off on the usual form of SEC injunctive language either, and will probably dismiss any SEC contempt proceedings that are based on injunctions already out there.
But beyond forcing the Commission to reassess the breadth of its typical injunctions, I hope Smyth will get people thinking about whether the SEC should even be seeking injunctions in a lot of its cases. When many enforcement cases are filed, there is no ongoing misconduct or realistic threat of repetition, and the SEC can achieve adequate punishment and deterrence through monetary penalties, yet the Commission invariably insists on an injunction anyway, often tanking potential settlements. Smyth presents a good opportunity to consider whether that approach still makes sense in every case.”
Believe It or Not: Sarbanes-Oxley for Dummies
A small blurb in Friday’s WSJ alerted me to the upcoming publishing of a “Sarbanes-Oxley for Dummies” book, due sometime in February. A few immediate thoughts: Is there really a market for this stuff outside our small niche of compliance practitioners – and ain’t it a little late?
By the way, if you are new to SOX and want to “one-stop” it (rather than drill down through the 200+ Practice Areas on our site) – we have highlighted some comprehensive memos about SOX in our “Sarbanes-Oxley” Practice Area. Surely, the Latham Watkins and Fried Frank memos posted there – both over 200 pages – will serve you better than a “Dummies” book…
KPMG Avoids Death Penalty
It is reported that KPMG has finalized an agreement that will not include an indictment for the firm itself – although indictments against some former KPMG partners, as well as members of investment banks and law firms who helped structure the deals, which is rumored to be announced separately today.
Apparently, there is a detailed and lengthy statement of facts in the agreement, in which KPMG admits to developing and selling questionable tax deals to hundreds of wealthy clients – and KPMG agrees to pay $456 million and submit its tax unit and compliance efforts to a stringent 16-month review by former SEC Chair Richard Breeden.
There is a new 10-K disclosure item created by the Jobs Act. This Cleary Gottlieb alert sums it up best: “This is to alert you to a new Form 10-K disclosure item that you will not find in any of the usual places. Section 811 of the American Jobs Creation Act of 2004 added a new Section 6707A to the Internal Revenue Code. Section 6707A(e) of the Code provides for the imposition of a tax penalty, in the amount of $200,000, for the failure by a taxpayer to disclose certain tax information in its Form 10-K filed with the SEC. On August 12, 2005, the IRS issued rules, in the form of Revenue Procedure 2005-51, implementing the disclosure requirement.
Generally, the Form 10-K disclosure requirement is triggered if the registrant, or any entity “required to be consolidated with [the registrant] for purposes of the” Form 10-K, is required to pay a penalty to the IRS arising from a failure to satisfy special tax return disclosure requirements applicable to certain types of transactions that have been identified by the IRS as abusive or that have a significant tax avoidance purpose.
The penalty under Section 6707A(e) of the Code also applies to a failure to include the required disclosure in the Form 10-K. Thus, the Revenue Procedure makes it clear that “the obligation to disclose on each successive Form 10-K filed will continue until the person actually discloses its requirement to pay each of the penalties [and] each failure to disclose . . . will give rise to a new, separate penalty . . . that also must be disclosed.”
Generally, the disclosure is required in the Form 10-K for the year with respect to which the IRS demands payment of the applicable penalty. The Revenue Procedure includes specific instructions concerning the nature of the information required to be disclosed. It appears that this disclosure obligation does not apply to registrants that file on Form 20-F.
Obviously, we suggest that persons responsible for the Form 10-K coordinate with their tax colleagues to ensure that they are aware of any demand by the IRS relating to any tax penalty that may give rise to a disclosure obligation.”
Implementing Fraud Prevention Training
In this podcast, Peter Goldmann, Editor & Publisher of the “White-Collar Crime Fighter,” explains how to implement a compliance training module for fraud detection and prevention, including:
– How do companies know if they need to enhance their existing fraud prevention programs?
– How is Web-based learning effective for fraud prevention?
– How exactly do employees take these Web-based courses? How do you gauge their effectiveness?
– What other techniques are available to provide fraud detection training to employees?
We have added this podcast to our many resources in the “Compliance Training” Practice Area.
KPMG Looks Like It Will Remain In The “Final Four”
Today’s WSJ runs an article noting that federal prosecutors were negotiating a possible settlement with KPMG – and have tentatively tapped former SEC Chairman Richard Breeden to serve as an outside monitor at the accounting firm. The article says the two sides were close to an agreement, under which the KPMG would avoid a criminal indictment in connection with its past sales of tax shelters to hundreds of wealthy individuals. That is good news – as we need the Final Four (as I blogged a few months back)!
As part of our “Drill Down” series of webcasts on the ’33 Act reform, we have posted draft T&R Responsiblity Schedules in our “Securities Act Reform” Practice Area to help you think about how deals will look like after December 1st. The samples below are just drafts as the reform is so new and there is some uncertainty as to how some of the rules will be interpreted – and how bankers/lawyers will apply them. Please send comments to me as you look at these:
On CompensationStandards.com, in addition to the opinion itself, we now have a horde of law firm memos analyzing the case in our “Disney Opinion and Analysis” section on the home page. In addition, Mike Melbinger has been blogging nearly daily on various aspects of the opinion in his “Melbinger’s Compensation Blog.” And to get a take on the case from some academics, check out the Conglomerate Blog.
SEC Charges Kmart CEO and CFO for Words, Not Numbers, Fraud
Yesterday, the SEC filed charges against the former top Kmart CEO and CFO for misleading investors about Kmart’s financial condition in the months preceding the company’s bankruptcy. According to the SEC’s complaint, the former officers were responsible for materially false and misleading disclosure about the company’s liquidity and related matters in the MD&A section of Kmart’s Form 10-Q for the third quarter and nine months ended October 31, 2001, and in an earnings conference call with analysts and investors.
What’s interesting in this case is that the SEC is alleging misleading narrative in the MD&A; not bad numbers. The SEC alleges that Kmart’s MD&A section didn’t disclose the reasons for a massive inventory overbuy in the summer of 2001 and the impact it had on the company’s liquidity. For example, the MD&A disclosure attributed increases in inventory to “seasonal inventory fluctuations and actions taken to improve our overall in-stock position.” The SEC alleges that this disclosure was materially misleading because, in reality, a significant portion of the inventory buildup was caused by a Kmart officer’s reckless and unilateral purchase of $850 million of excess inventory.
Yesterday, the shell company rules became effective – no big deal for many of us, right? Wrong! The shell company rules require all companies to include a new check box on the cover page of the following ’34 Act forms: Form 10-K, Form 10-KSB, Form 10-Q, Form 10-QSB and Form 20-F. The new check box relates to whether the registrant is a “shell company” as defined in Rule 12b-2 under the ’34 Act.
A cursory review of the 10-Q filings made yesterday indicate that many are not aware of this new requirement. Thanks to Steve Quinlivan of Leonard, Street and Deinard for a heads up – and for his contribution of this Word version of the new Form 10-Q cover page. Note that the SEC has not updated this blank Form 10-Q on its website to capture this change.
Whistleblower Hotline Conflicts Overseas
Last week, I blogged about the quagmire regarding whistleblowing obligations under Sarbanes-Oxley that conflict with some legal requirements in Europe (including the fact that we have posted English translations of the related French court opinions). In this podcast, Miriam Wugmeister, Head of the International Privacy Practice of Morrison & Foerster, explains how the whistleblower hotline conflicts have arisen in France and what companies might consider doing now, including:
– How might companies find that their whistleblowing obligations under Sarbanes-Oxley conflict with laws of other jurisdictions, particularly what is going on in France?
– How does that compare with what is happening in Germany?
– Is there anything that companies can do now to resolve these conflicts?
– What is the Coalition for Global Information Flows?
NYSE Affirmations Due August 30th for Foreign Private Issuers
As a reminder, foreign private issuers listed on the NYSE must file their annual affirmations for the first time by a week from today, August 30th. US companies have already been through this drill at least once. The NYSE has a set of forms applicable to foreign private issuers that is different from those for US companies – scroll down halfway on this “Corporate Governance Documents” page from the NYSE site. Here are instructions about when the affirmation is due and other related tidbits.
Late last week, one member asked: “How about some commentary about the likelihood and timing of Section 404 relief for smaller issuers?” One thing immediately sprung to mind – was I being followed to my regular poker game? This is a 20-year old game that my Dad also plays in, so it’s not part of the latest poker craze. So I suppose that is enough to qualify me as some sort of oddsmaker – so here goes nothing:
Based on the latest resolution from the SEC’s Advisory Committee on Smaller Public Companies – which recommends that 404 compliance for non-accelerated filers should be delayed until mid-2007 – I would say it is fairly likely that the SEC will push back the 404 compliance date for small business issuers.
The odds are enhanced even more given that new SEC Chair Cox recognizes that some counterbalancing of SOX-related directives is now necessary (as it nearly always is after broad reforms) and that COSO might miss its target date to issue internal control standards applicable to small businesses. To put some numbers on it for Vegas purposes – let’s call it 3-to-1 in favor of a delay happening.
Majority Voting: Two More Companies Amend Their Governance Guidelines
Following up on the three items that I blogged about Friday regarding majority vote governance guidelines, two additional companies have recently adopted similar policies to Pfizer and Office Depot. ADP amended their bylaws rather than its corporate governance guidelines – and Circuit City’s standard is along the lines of Office Depot’s version (which I call a “quasi-majority vote” standard for the reasons that I set forth on Friday).
– Circuit City’s corporate governance guideline: “Any Director nominee in an uncontested election for whom greater than 50% of the outstanding shares are ‘withheld’ from his or her election shall tender his or her resignation for consideration by the Nominating and Governance Committee. The Nominating and Governance Committee shall recommend to the Board the action to be taken with respect to such resignation.” Here is the related press release.
– ADP’s bylaw amendment: “The directors shall be elected by the vote of the majority of the shares represented in person or by proxy at any meeting for the election of directors at which a quorum is present, provided that if the number of nominees exceeds the number of directors to be elected, the directors shall be elected by the vote of a plurality of the shares represented in person or by proxy at any such meeting.” Here is the related Form 8-K.
Forget About Moving that Cheese
Went to a dinner party yesterday and saw one of my old law school friends who works in-house at a local public company. He just came back from a week-long strategic retreat for the company’s managers over on the West Coast. In the leadership training arena these days, apparently “moving my cheese” is “out” and “teachable point of views” are “in.”
Call me a naysayer but I think those retreats tend to be a waste of company resources – like falling backwards into the arms of my colleagues is going to turn a company around. Puh-leese. And in some cases, it can actually backfire. Last one I went to helped me realize that maybe it wasn’t such a bad idea to get a new job. Hmmm, so maybe they are a good idea after all!
As noted in this press release, the Walt Disney Co. announced yesterday that they have amended their corporate governance guidelines to provide that any director who receives a “withhold” vote representing a majority of the votes cast for his or her election would be required to submit a letter of resignation to the Board’s Governance and Nominating Committee, which in turn would recommend to the full Board whether the resignation should be accepted.
Are There Different Flavors of Majority Vote Governance Guidelines?
Note that Disney’s standard parallels the “Pfizer” guidelines (ie. based on a majority of votes cast); whereas Office Depot’s standard requires a withhold or against from “a majority of the Company’s shares.” That sounds like it means a majority of outstanding shares would need to withhold, which is a higher standard – and arguably not even a “majority vote” standard because a majority of those voting could withhold and yet not trigger the guideline.
If Office Depot sticks with that type of standard, I wonder if they are going to add an “against” box to their proxy card? For some insight on the ramifications of such an action, continue reading below…
Analyzing the Majority Vote Proposals
Keith Bishop provides some interesting analysis of the outstanding majority vote proposals in this text interview, including addressing many practical (and legal) impediments, such as:
– How does failure to execute a proxy interplay with withholding votes?
– Is the majority vote concept permissible under California law?
– What is the signficance and ramifications of including an “against” box on the proxy card?
– How does cumulative voting play into all of this?
So far, I hear that the ABA Task Force has received 27 comment letters on its discussion paper. Comments were requested by August 15th but I know they are still dribbling in – so keep them coming!
I am busy working with the three panels for our special webcast series on the ’33 Act reform – and pretty excited about how they are being structured (along the lines of a chronological walk-through of a new deal, broken out by type of issuer).
I am also very excited to announce a new webcast for October 3rd – “Internal Controls Update: The Big 4 Speak” – featuring a former SEC Corp Fin Director and the top 404 expert from each of the Big 4 accounting firms. This panel will analyze the current developments affecting Year Two of 404:
– John Huber, Partner, Latham & Watkins LLP
– Craig Crawford, Partner-in-Charge of the Audit Group of the Department of Professional Practice, KPMG LLP
– George Tucker, Partner and Director of International Auditing Standards, Ernst & Young LLP
– Garrett Stauffer, Senior Partner and Leader of US Corporate Governance Practice, PricewaterhouseCoopers LLP
– Steve Wagner, Partner and Leader of the US Center for Corporate Governance, Deloitte & Touche LLP
Now is the time to upgrade your license for TheCorporateCounsel.net to allow others in your company – such as your CFO and controller – to listen to the latest guidance on both the ’33 Act reform and Section 404 at the reduced rates available in our “Rest of 2005” no-risk trial.
Fleshing Out the Board Evaluation Process
Lately, I have been having some interesting emails and conversations with members on how to approach the board evaluation process, particularly the role – if any – of outside counsel. In this podcast, Andy Tebbe of King & Spalding explains how to tweak the board evaluation process to make them more effective, including:
– Why are companies doing board evaluations?
– What types of questions should be asked on an evaluation?
– Do you have any recommendations for how to make the process go more smoothly?
– How many of your clients seek your help to compile board evaluation results and is their any typical profile of them?
– What is typical board evaluation process that uses third party to compile (oral, written, combo)?
– Does the attorney-client privilege apply?
– What do you recommend that your clients do with the findings? Destroy or document?
ABA’s New Resolution on Attorney-Client Privilege
During the recent ABA Annual Meeting, the ABA’s House of Delegates passed a fairly strongly worded resolution opposing government pressure on the attorney-client privilege – the resolution was adopted in the form of this ABA Task Force on Attorney Client Privilege Recommendation No. 111, which I also have copied below (and here is a professor’s commentary on this new resolution):
RESOLVED, that the American Bar Association strongly supports the preservation of the attorney-client privilege and work product doctrine as essential to maintaining the confidential relationship between client and attorney required to encourage clients to discuss their legal matters fully and candidly with their counsel so as to (1) promote compliance with law through effective counseling, (2) ensure effective advocacy for the client, (3) ensure access to justice and (4) promote the proper and efficient functioning of the American adversary system of justice; and
FURTHER RESOLVED, that the American Bar Association opposes policies, practices and procedures of governmental bodies that have the effect of eroding the attorney-client privilege and work product doctrine and favors policies, practices and procedures that recognize the value of those protections.
FURTHER RESOLVED, that the American Bar Association opposes the routine practice by government officials of seeking to obtain a waiver of the attorney client privilege or work product doctrine through the granting or denial of any benefit or advantage.
Following up on a blog from a few weeks back, one member responded to my concerns by intimating that companies perhaps should not bother to ask for PCAOB inspection reports unless the inspection was not “routine.” I think the problem with that selective approach is that auditors – and their clients – do not know when a PCAOB inspection is routine since it uses non-public criteria to guide its inspectors in pulling client files for review. And some of the PCAOB’s non-public criteria are risk-based (but not all of the criteria, so having your file pulled doesn’t necessarily mean that the company has been identified as risky either).
Since hindsight can always come back to haunt you, I think it’s better for the audit committee to be safe than sorry and be aware of when regulators are sniffing around – just like it is now standard practice for the audit committee to be notified when the SEC issues any comments that impacts the company’s accounting practices. I also would think the independent auditor would rather not be on the hook for determining when an inspection is routine, particularly since they are so skittish these days.
Karl Barnickol of Blackwell Sanders (always the voice of reason) weighs in on another aspect of the PCAOB’s process — disciplining the auditors after an inspection – as follows: “Seems to me that an audit committee should want to know if their auditor is in hot water with the PCAOB as part of their decision-making process on retaining an auditor.
Whether it is in fact a legal duty only time will tell, but not asking strikes me as risky if something goes wrong down the road. For example, if your auditor was KPMG, wouldn’t you want an update on the possible DOJ/SEC action against KPMG before you decided to engage them for another year. What if they turn out to be the next Arthur Andersen? As a practical matter, since larger companies probably can’t use any firm outside the Final Four – and since all 4 seem to be in trouble with the regulators to a greater or lesser degree all the time – enforcement information may not be all that helpful to the decision, but having considered the question makes a better record for the audit committee.
I have to say that while my firm is having some success getting commitments in our client’s engagement letters to notify the company if its file is pulled in an inspection, to provide cc’s of the correspondence, and to give the company a chance to talk to the PCAOB, getting engagement letter commitments about enforcement actions is another matter. That doesn’t bother me quite so much since the Audit Committee will always have an opportunity to ask the engagement partner directly about enforcement actions before they make the engagement decision for the next year.”
Sample Disclosures: Remediation of Material Weaknesses
In our “Internal Controls” Practice Area, we have posted samples of disclosures from companies that have remediated material weaknesses.
The Google IPO: A Year Later
The Wired GC blog captures a blurb from Monday’s San Francisco Chronicle about Google’s IPO filings with the SEC. Apparently, the Chronicle reporter conducted an extensive FOIA request to obtain Google’s comment letters and responses (most of that correspondence transpired before the start date of the SEC’s comment letter database) – and the reporter wasn’t amused by the Tandy language requested by the SEC. It’s not hard to imagine how the Tandy letter concept could be confusing to someone not “in the know,” eh?
Many members are asking about the recent decisions in France and Germany regarding whistleblower hotlines. In France, the French Data Protection Authority (aka “CNIL”) has rendered two decisions prohibiting a subsidiary and division of two US companies – McDonalds and Exide Technologies – from implementing anonymous reporting systems. These systems were developed in compliance with Rule 10A-3, which the SEC adopted to comply with Section 301 of Sarbanes Oxley. The CNIL believes these hotlines violate French privacy law due to the anonymous nature of the accusers permitted by the hotlines.
Meanwhile, a German authority has struck down Wal-Mart’s code of ethics, but not based on any kind of substantive rationale – rather, it appears to be due to a procedural snafu that turned on the failure of the company to consult with the German Works Council before implementing their code of ethics in Germany.
We have posted a number of law firm memos analyzing these overseas problems in our “Whistleblowers” Practice Area – and Tom White and Carrie Wofford of Wilmer Cutler Pickering Hale and Dorr have graciously provided copies of the two French CNIL opinions, including informal translations of them into English.
A number of groups, such as the Privacy Matters Committee of the World Law Group, have approached the French and German authorities – as well as the SEC and the NYSE – but right now, these issues are still lurking as there has not been any further word from any of these regulators. More inevitably to come…
New Form 144 Posted
One of our more popular sample documents is a Word version of Form 144. We have posted a new one that reflects changes in the form that the SEC has made (the SEC might have made these form changes a while ago; let me know if you ever see any outdated content on the site).
Speaking of Rule 144, don’t forget that we have a “Rule 144 Q&A Forum,” where members post Rule 144 questions – and long-time practitioners Bob Barron and Jesse Brill endeavor to provide some guidance. You can access this Forum on TheCorporateCounsel.net home page from the tool bar at the top.
Doing M&A Inhouse
Some of the younger lawyers out there might wonder if they could land a job in-house that would allow them to do M&A. In this DealLawyers.com podcast, George Villasana, Senior Counsel – Corporate Law of AutoNation (who has also worked in two different law firms and at the SEC), describes what it’s like to do M&A in-house, including:
– What types of M&A activities he undertakes?
– What is his daily life like?
– How he found his job?
– How being in-house compares to being in a firm?
– How being in-house compares to working at the SEC?
Below is an excerpt from this transcript of an interview held last Wednesday with new SEC Chair Chris Cox on the PBS’ “Nightly Business Reports”:
DHUE: Runaway executive pay has long been criticized. Is that something that the agency is going to take out?
COX: Executive compensation is much in the news and there have been some very notorious cases of apparent excess. It should be, of course, in the main up to shareholders to discipline that kind of activity, but in order for shareholders to do that, they`ve got to have good information. I think you can look in the near future to the SEC for some improved rules on disclosure to make sure that, for example, shareholders can have one number, that the different kinds of executive compensation add up to a number that`s comparable executive to executive and company to company and at the same time that this information is provided in a timely way before rather than after the fact.
DHUE: Shareholder activists have also tried to rein in executive pay through the proxy process. Do shareholders need greater access to the proxy so they can be the watchdog on corporate management?
COX: Of course investors and particular equity owners own the company and it`s very much in shareholder interests to discipline executive compensation and make sure it`s in line with the market, making sure they`re getting full value and also to make sure that everything else about the company is running well and with a view to doing well and good at the same time. Shareholders, I think, will find it increasingly easy going forward to look after their interests because technology is making it possible for information to move so much more quickly. We can have better analysis, more cheaply in the hands of investors more quickly than ever before. And the SEC is going to look at every possible way of making sure that our disclosure requirements are up to date and providing investors what they truly need.
On DealLawyers.com, the last leg of the popular M&A Boot Camp is available – Howard Dicker of Weil Gotshal does a great job parsing through accounting issues, both basic and those that relate to M&A.
It’s not too late to catch the entire 5-part series of the “M&A Boot Camp,” as all five are now up and available! If you are not a member, try a no-risk trial and take advantage of our half-price “Rest of 2005” rate – believe it or not, a license for a single user is only $100 and there are similar reduced rates for offices with more than one user! Among the many other resources, you can catch the upcoming webcast on September 21st – “Winning Strategies in Auctions” – featuring David Katz of Wachtell Lipton and Eileen Nugent of Skadden Arps.
Bueller? Anyone?
As a fan of the movie “Ferris Bueller’s Day Off” – I grew up in Chicago and attended Lane Tech HS before moving to Bethesda in 10th grade – I was taken aback to see a column blurb entitled “Bueller? Anyone?” in Friday’s WSJ (scroll down halfway through the column). Kudos to the WSJ for a light moment!
The article describes how a roll call of director nominees at a recent annual shareholders’ meeting semi-paralleled the movie’s sarcastic take on high school roll calls. I always thought I was cool because I answered “Yo” in response to the teacher’s call of my name – did I mention I never went on dates? That was a classic scene from the movie – here is a web site that provides a script, etc. from the movie…
