Month: February 2020

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.

SEC approves Nasdaq changes to definition of “family member”

The SEC has granted accelerated approval of Nasdaq’s amended proposal, originally filed in May 2019, to modify the definition of a “family member” for purposes of determining director independence under Listing Rule 5605(a)(2).  As part of the new definition, Nasdaq excludes stepchildren from the definition of “family member,” but will ultimately leave to the board the determination of whether stepchildren who do not live at home with the director nevertheless have a relationship with the director that could interfere with the director’s exercise of independent judgment.  Calling Dr. Phil….

Will other states follow California in adopting board gender diversity mandates?

Remember California’s SB 826, the board gender diversity mandate? That law requires  each public company with principal executive offices located in California, no matter where they are incorporated, to have a minimum of one woman on its board of directors by the close of 2019. That minimum increases to two by December 31, 2021, if the corporation has five directors, and to three women directors if the corporation has six or more directors. (See this PubCo post.)  Has it made a difference? According to reporting from the WSJ, the answer is a big yes.  Given the success of the new law in making progress toward its goals, the question then is—are other states now following California’s playbook?  Well, kinda, sorta….