In this report, Expanding the On-Ramp: Recommendations to Help More Companies Go and Stay Public, eight organizations—the American Securities Association, Biotechnology Innovation Organization, Equity Dealers of America, Nasdaq, National Venture Capital Association, Securities Industry and Financial Markets Association, TechNet and the U.S. Chamber of Commerce—joined forces to make recommendations about how to revitalize the IPO market and make public company status more appealing. Many of these recommendations have in the past been the subject of legislation or proposed rulemaking or have otherwise been floated in the ether but, nevertheless, have not advanced.  Will the weight of these groups propel any of these recommendations forward?

The report begins by reminding us of the benefits to the economy that result from an environment that would induce companies to go public: according to one study, “the 2,766 companies that went public from 1996 to 2010 collectively employed 2.2 million more people in 2010 than they did before they went public, while total sales among these companies increased by over $1 trillion during the same period.  Another study… in 2010 found that 92% of a company’s job growth occurs after it completes an IPO.”

However, the report continues with a familiar  lament: these benefits notwithstanding,

“the public company model has become increasingly unattractive to businesses: the United States is now home to roughly half the number of public companies than existed 20 years ago, while the number of public companies in the United States is little changed from 1982. Not only are fewer companies going public, but the companies that do are typically doing so much later in their lifecycle. When companies go public at a relatively mature age, many of the early stage returns generated by those businesses accrue to institutional investors such as private equity funds or wealthy individuals who are allowed and able to invest in private offerings.   Main Street investors thus have limited opportunities to participate early on in a company’s growth cycle. All too often, Main Street investors are simply left out.”

The report recognizes that the problem is complex and that there are no easy solutions.  Some of the reasons for the reluctance of companies to go public—such as the availability of capital through the currently vibrant private markets—are not, the report concludes, within the control of policymakers.  What policymakers can control, the report asserts, are laws and regulations, and those need to be updated.

The report does recognize that the need to maintain decision-making control is a factor for companies considering an IPO, but its recommendations in that regard, while important, are limited to advocating a regulatory hands-off approach:

“Another trend that has developed recently is companies adopting corporate structures that help founders maintain control. For example, dual class or multi-class share structures retain voting rights only for certain shareholders. While such structures have received criticism from some observers, policymakers should recognize that this trend has coincided with a steady rise in shareholder activism, and that companies should be free to choose a corporate structure that they believe will best enhance long-term performance. Instead of contemplating whether to prohibit or limit the use of such structures, policymakers should instead focus on the underlying causes of the trend and whether it is merely a symptom of a broken public company model. A broad focus on encouraging investor choice while assuring that issuer disclosure keeps investors sufficiently informed is necessary to prevent prescriptive regulations that harm market dynamism.”

JOBS Act 2.0

While the report views the JOBS Act as a beginning, it contends that now is the right time for policymakers to “seriously address the impediments both to launching IPOs and to reverse the increase in costs associated with remaining a public company.”  Accordingly, the report recommends:

  • For issuers that continue to meet the definition of an EGC, extend certain JOBS Act Title I “on-ramp” provisions from five years to ten years, including streamlined financial and compensation disclosure and exemptions from say-on-pay, say-on-frequency, say-on-golden parachutes, pay-for-performance and pay-ratio disclosure.
  • Permit all issuers to “test the waters” with QIBs and institutional accredited investors to determine interest in a securities offering.
  • Extend the JOBS Act exemption from SOX 404(b), the requirement to have an auditor attestation and report on management’s assessment of internal control over financial reporting, from five years to ten years for EGCs that have less than $50 million in revenue and less than $700 million in public float. The report contends that costs associated with SOX 404(b) “have not been scalable for small and midsize public companies” and that there is “no evidence” that the JOBS Act exemptions from SOX 404(b) “have compromised investor protection or market confidence.”
  • Remove “phase-out” rules that “increase the complexity and uncertainty regarding EGC status,” thus allowing EGCs to retain their EGC status even if they crossed a market cap threshold (although the report allows that the SEC could still set a public float cap.) The report indicates that, for example, in 2014, about 30% of EGCs that went public in 2012 found that they had to comply with SOX 404(b) because they had become large accelerated filers and, as a result, therefore ceased to qualify as EGCs.

Recommendations to Encourage More Research of EGCs and Other Small Public Companies

One widely recognized problem for smaller public companies is the dearth of analyst coverage, which can affect the liquidity and trading environment. The report cites a study showing that, for exchange-listed companies with less than a $100 million market cap, about 61% of have no research coverage at all. The report recommends:

  • Amend Rule 139 to provide that continuing coverage by research analysts of any issuer would not be deemed to constitute an offer or sale of a security of that issuer before, during or after an offering by such issuer, regardless of whether the issuer was S-3 eligible.
  • Allow investment banking and research analysts to jointly attend “pitch” meetings in order to have open and direct dialogue with EGCs. A holistic review of the Global Research Analyst Settlement should also be conducted, the report recommends. Currently, the JOBS Act permits joint attendance, but SEC guidance limits what may be discussed. The report recommends that the SEC expand the scope of permitted content that can be discussed “so long as no direct or indirect promises of favorable research are given.”
  • The SEC should examine why pre-IPO research has not materialized notwithstanding liberalization of the gun-jumping rules under the JOBS Act to permit publication of pre-IPO research. Are there other regulatory or liability concerns that should be addressed in this context?

Improvements to Certain Corporate Governance, Disclosure and Other Regulatory Requirements

The reports cites a 2011 report of an IPO Task Force for the proposition that “92% of public company CEOs found the ‘administrative burden of public reporting’ to be a significant barrier to completing an IPO.”   In addition, the report contends that companies are distracted by pressures from governance activists, bolstered by proxy advisors, over matters that are often immaterial.  The report recommends:

  • Institute reasonable and effective SEC oversight of proxy advisory firms. The report notes that ISS and Glass-Lewis have over 97% of market share and have become “de facto standard setters for corporate governance.”  But there’s a “startling lack of transparency and significant conflicts of interest, and [proxy advisors] have been prone to making errors in analysis….These issues are exacerbated by the lack of communication between the firms and small and midsize companies….” Congress should enact legislation (passed by the House in 2017) (see, e.g., this PubCo post and also R. 4015) that would require proxy advisors to register with the SEC, and the SEC should withdraw two old no-action letters that, through no-actions positions regarding investment advisors’ use of third-party recommendations, allowed proxy advisors to bypass “case-by-case scrutiny of their own conflicts of interest.”

Posted by Cydney Posner