SCOTUS hears oral argument in Somers v. Digital Realty Trust: Dodd-Frank whistleblower statute “says what it says”
Yesterday, in addition to hearing oral argument regarding state court jurisdiction over ’33 Act class actions (see this PubCo post), SCOTUS also heard oral argument in a second case, Somers v. Digital Realty Trust. This case addressed the split in the circuits regarding the application of the Dodd-Frank whistleblower anti-retaliation protections: do the protections apply regardless of whether the whistleblower blows the whistle all the way to the SEC or just reports internally to the company? Here is a link to the transcript of the oral argument for Digital Realty, which is discussed below.
Can SCOTUS make sense out of “gibberish”? SCOTUS hears oral argument in case addressing state court jurisdiction over ’33 Act cases
Yesterday, SCOTUS heard oral argument in Cyan Inc. v. Beaver County Employees Retirement Fund, which addressed whether state courts have jurisdiction over cases brought solely under the Securities Act of 1933. Here is the transcript of the oral argument for Cyan, which is discussed briefly below.
According to a 2017 report from Equilar, an executive compensation data firm, “relative total shareholder return” continues to be the most common performance measure used in long-term incentive plans for CEOs among S&P 500 companies. (See this PubCo post.) But this article in CFO.com contends that, with a metric of rTSR, the “pay for performance linkage” is “weak”; rather than rewarding long-term performance, use of rTSR is tantamount to giving “management a lottery ticket.”
2017 Audit Committee Transparency Barometer from the Center for Audit Quality shows continued increase in enhanced disclosures
Earlier this month, the Center for Audit Quality together with Audit Analytics posted their annual Audit Committee Transparency Barometer, which measured the quality of proxy disclosures regarding audit committees among companies in the S&P Composite 1500. The report shows continued voluntary enhancements to transparency and broadly increased disclosure around audit committee oversight of the external auditor. The report includes several useful examples of the types of disclosure discussed.
Biotech files rulemaking petition for pilot program mandating public disclosure of short-sale positions
A rulemaking petition has been submitted to the SEC by a biopharmaceutical company that is “developing and marketing regenerative and therapeutic biologics.” The petition requests that the SEC promulgate rules to establish a pilot program that would mandate “periodic public disclosure of short-sale positions in securities of biopharmaceutical companies by investment advisers.” Will the SEC take action on the request in the petition?
On a webcast today, “Shareholder Proposals: Corp Fin Speaks,” presented by TheCorporateCounsel.net, Matt McNair, Senior Special Counsel in Corp Fin’s Office of Chief Counsel, provided some “soft” guidance regarding the implications of the recent SLB 14I on shareholder proposals, particularly the exclusions for “ordinary business” and “economic relevance.” (See this PubCo post.)
Summarized below are some of the highlights of the 2017 PLI Securities Regulation Institute panel discussions with the SEC staff (Michele Anderson, Wesley Bricker, Karen Garnett, William Hinman, Mark Kronforst, Shelley Parratt, Ted Yu), as well as a number of former staffers and other commentators. Topics included the Congressional and SEC agendas, fresh insights into the shareholder proposal guidance, as well as expectations regarding cybersecurity, conflict minerals, pay ratio disclosure, waivers and many other topics.