Month: February 2020

Coronavirus gives companies sourcing headaches

The spread of the devastating coronavirus has created alarm around the world, with the health and safety of the world’s populations obviously being the most important concern.  There has also been significant anxiety about the disruptive impact of the virus on the global economy—and the market has reacted to that anxiety. This special report from Dun & Bradstreet, “Business Impact of the Coronavirus,” may help companies preparing disclosures get a better handle on the effects. In addition to closure of factories, retail stores and hospitality venues, as well as cancellation of travel plans and quarantines (and resulting unavailability) of employees, the report indicates that companies may need to consider the disruptive effects of the coronavirus on both product demand and supply— the potential hit to consumer demand, especially in locked-down parts of China, and the interruption to supply chains for raw materials and components.

Cooley Alert: SEC Proposes to Modernize MD&A and Other Financial Disclosures

Check out our new Cooley Alert: SEC Proposes to Modernize MD&A and Other Financial Disclosures.  It’s a thrill from beginning to end and much more fun than watching the market these days. 

Law professors submit rulemaking petition to deter “short and distort”

A committee of law professors, led by John Coffee and Joshua Mitts, both of Columbia Law School, have submitted a petition for rulemaking with the rhythmic title, “Short and Distort,”  concerning the practice of “negative activism”: as they describe it, a negative activist “opens a large short position; disseminates sometimes aggressive negative opinion about a public company (often stopping just short of factual falsehoods)…, which induces a panic and run on the stock price; and rapidly closes that position for a profit, prior to the stock price partially or fully rebounding.”  In these scenarios, the short sellers do well, but the investing public—not so much.

SEC charges company for failure to disclose material trends

The SEC has just settled an action against Diageo PLC, a producer of liquor, wine and beer, for failure to disclose known trends and uncertainties.  Diageo’s omission resulted in materially misleading disclosures regarding its financial results and material inflation of key performance indicators—organic net sales growth and organic operating profit growth.  It’s worth noting that the SEC has not been reluctant to take enforcement action against companies that have misled investors by inflating KPIs, such as subscriber counts, revenue-per-subscriber, number of vehicles sold monthly, net new customers added, backlog and now organic net sales growth and organic operating profit growth. These types of metrics—typically outside of the financial statements—are metrics on which investors and analysts often rely to assess performance, and companies have been held to account if their presentations are materially inaccurate or misleading or the related controls are inadequate.

Commissioner Roisman defends proxy proposals

The SEC’s recent proxy proposals—both the proposal related to proxy advisory firms (see this PubCo post) and the proposal related to Rule 14a-8 shareholder proposals (see this PubCo post)—have been hit hard by the critics. Even the SEC’s own Investor Advisory Committee piled on, ultimately recommending that the SEC consider a do-over. (See this PubCo post.)  To the defense comes SEC Commissioner Elad Roisman, who has been honchoing these proposals at the SEC.

SEC issues public statement on impact of coronavirus on financial reporting and audit quality

In a public statement issued today, SEC Chair Jay Clayton, Corp Fin Director Bill Hinman, SEC Chief Accountant Sagar Teotia and PCAOB Chairman William D. Duhnke III provided guidance regarding the impact of the coronavirus on financial reporting and audit quality, as well as the potential availability of regulatory relief.  The statement arose out of the recent continuing dialogue between these officials and the senior leaders of the largest U.S. audit firms regarding difficulties in connection with conducting audits in emerging markets.

SSGA offers roadmap for board oversight of ESG; may vote against directors of ESG “laggards”

It’s not just BlackRock’s CEO that has words for companies.  Cyrus Taraporevala, the CEO of State Street Global Advisers, another large asset manager, has recently sent his own letter to company boards cautioning that SSGA’s engagement on sustainability this year will also include the possibility of a proxy vote against directors “to press companies that are falling behind and failing to engage.” While directors can play a vital role in catalyzing action on ESG matters, SSGA recognizes that, in many ways, our understanding of ESG is still in its early stages, making board oversight of ESG something of a challenge. To help demystify sustainability for directors, SSGA has developed a framework intended to provide a roadmap for boards—where to begin—in conducting oversight of sustainability as a strategic and operational issue.