Month: September 2017

Will a new securities exchange be effective to promote long-term value creation?

Many have recently lamented the decline in the number of IPOs and public companies generally (from about 8,000 in 1996 to about 4,000 now, according to EY), and numerous reasons have been offered in explanation, from regulatory burden to hedge-fund activism. (See this PubCo post and this PubCo post.)  In response, some companies are exploring different approaches to going public, leading to a recent resurgence in SPACs (see, e.g.,  this WSJ article), while others are flirting with the possibility of “direct listings,” which avoid the underwritten IPO process altogether (see, e.g., this article discussing the pending NYSE rule change to facilitate direct listings).   At the same time, companies are seeking ways to address some of the perceived afflictions associated with being public companies—including the pressures of short-termism, the risks of activist attacks and potential loss of control of companies’ fundamental mission—through dual-class structures and other approaches.  Changing dynamics are not, however, limited to companies.  And one of the most interesting proposals designed to address these issues is being introduced on completely different turf—a novel concept for a stock exchange, the Long-Term Stock Exchange. According to the LTSE blog, “[w]hile other proposed solutions target the IPO process, the LTSE’s mission is to transform the public company experience by relieving the short-term pressures that plague today’s businesses and laying the foundation for a healthier public market ecosystem.”

Corp Fin issues interpretive guidance on the calculation of pay-ratio disclosure

Yesterday, Corp Fin issued new Guidance on Calculation of Pay Ratio Disclosure regarding the use of statistical sampling in connection with the pay-ratio disclosure requirement, which mandates public company disclosure of specified pay-ratio information, beginning with the upcoming 2018 proxy season. The new guidance provides a fairly expansive reading of the use of reasonable estimates, statistical sampling and other reasonable methods. But prepare yourself, it also uses terms such as “multimodal,” “gamma distribution” and, my favorite, “lognormal,” surely all firsts for this PubCo blog. (Wikipedia defines a “lognormal”distribution as “a continuous probability distribution of a random variable whose logarithm is normally distributed.” Does that help?)  Whether or not you are mystified by some of the terminology (as am I), it is clear that the leitmotif (take that, statisticians) of the new guidance is that you can use or combine any number of different methodologies and estimates so long as they are all reasonable and appropriate under your particular facts and circumstances.

SEC issues guidance in connection with pay-ratio disclosure (updated)

This afternoon, the SEC announced that it had adopted interpretive guidance in connection with the pay-ratio disclosure requirement, which mandates public company disclosure of specified pay-ratio information, beginning with the upcoming 2018 proxy season. Generally, the guidance provides a more expansive reading of three topics: company reliance on reasonable estimates, the use of existing internal records to determine the median employee and non-U.S. employees, and the use of other recognized tests and criteria (such as published IRS guidance) to determine employee/independent contractor status. At the same time, Corp Fin issued separate guidance regarding the use of statistical sampling (to be addressed in a subsequent post) and updated CDIs on topics related to the new SEC guidance.  For a more complete discussion of the pay-ratio rule, see our Cooley Alert, SEC Adopts Final Pay-Ratio Rule.

SEC hack provides occasion for Chair Clayton to revitalize 2011 Corp Fin disclosure guidance on cybersecurity risks and incidents

As you probably read in the papers (see, e.g., this article from the WSJ), SEC Chair Jay Clayton announced yesterday that, in 2016, the SEC’s EDGAR system was hacked and, in August 2017, the staff determined that the hack may have led to insider trading. The hackers took advantage of “a software vulnerability in the test filing component of our EDGAR system, which was patched promptly after discovery….” The SEC believes “the intrusion did not result in unauthorized access to personally identifiable information, jeopardize the operations of the Commission, or result in systemic risk.  Our investigation of this matter is ongoing, however, and we are coordinating with appropriate authorities.” As part of his lengthy statement, Clayton addressed the cybersecurity considerations that the staff applies in the context of its review of public company disclosures. 

A few new CDIs on Rules 147, 503 and 504, as well as Reg A

Today, Corp Fin posted a number of new CDIs that reflect updates for the amendments to Rule 147 (intrastate offers and sales) and Reg D Rules 503 and 504, and withdrew some CDIs in light of the repeal of Rule 505.  There are also a number of changes throughout the CDIs interpreting Rule 147 and Reg D that Corp Fin describes as non-substantive based on current rules, such as changes to correct outdated references.  The CDIs with these non-substantive changes are identified in the CDIs only by an asterisk and have not been updated to reflect a September 2017 date. Corp Fin has also removed the Reg D CDIs “that do not directly relate to the Commission’s current rules.” The CDIs identified as having substantive changes are summarized below, along with three new CDIs related to Reg A that were posted last week.  

SEC Advisory Committee recommends changes to Rule 701

On Wednesday of last week, at the final meeting of the SEC Advisory Committee on Small and Emerging Companies (soon to morph into the Small Business Capital Formation Advisory Committee), the Committee heard a presentation on Rule 701, the exemption from registration typically relied on by private companies for equity compensation issued to employees, directors and consultants under compensatory benefit plans or contracts. At the conclusion of the presentation, the Committee resolved, as one of its final actions, to advise the SEC to adopt the presentation’s recommendations for changes to the Rule.

Update on pay-ratio rule

Rumor has it that, at the recent ABA Business Law Section Annual Meeting in Chicago, Corp Fin Director Bill Hinman confirmed—in case there was any doubt—that the pay-ratio rule would be in place for reporting in 2018.