Month: April 2020

A “speed bump” for proxy advisory firms instead of company pre-review?

The FT is reporting that the SEC is abandoning a key component of its proposal to add new disclosure and engagement requirements for proxy advisory firms, such as ISS and Glass Lewis. (See this PubCo post.) According to the report, the SEC has “scrapped the portion of the proposal that would have forced proxy advisers—led by Institutional Shareholder Services and Glass Lewis—to submit their voting recommendations to companies for checking before distributing them to investors in advance of shareholder meetings.”  The proposal had received substantial pushback, including from the Council of Institutional Investors and even the SEC’s own Investor Advisory Committee. However, the FT appears to point the finger, or attribute the victory, depending on your point of view, primarily to hedge fund activists  “who court proxy advisers’ support when fighting for board seats.”

World Economic Forum offers stakeholder principles for the COVID-19 era

Several leaders of the World Economic Forum have published Stakeholder Principles in the COVID Era, characterizing the “business community’s contribution” as “to be leaders of responsiveness and stewards of resilience.” Nice cadence—I like it. But what does it mean in practice?

Do companies disclose the role of audit committees in connection with CAMs?

As you know, critical audit matters are defined for purposes of the auditor’s report as “matters communicated or required to be communicated to the audit committee and that: (1) relate to accounts or disclosures that are material to the financial statements; and (2) involved especially challenging, subjective, or complex auditor judgment.” The standard for CAMs became effective for audits of large accelerated filers (LAFs) for fiscal years ended on or after June 30, 2019, and will be required for companies other than LAFs (excluding emerging growth companies) for fiscal years ending on or after December 15, 2020.  CAM disclosure is strictly the province of the auditors and included in the auditor’s report.  But what has been the role of audit committees? Audit Analytics has performed an analysis of companies in the S&P 1500 to see what, if anything, they have disclosed in their proxy statements about the part that audit committees have played in connection with CAM identification and disclosure.

Nasdaq expedites delisting process for some bid price compliance issues

Nasdaq giveth and Nasdaq taketh away.  Having temporarily tolled the compliance period for certain continued listing requirements (see this PubCo post), Nasdaq has now proposed, and the SEC has approved, a rule change to expedite delisting (1) for securities with a closing bid price at or below $0.10 for ten consecutive trading days during any bid price compliance period and (2) for securities that have had one or more reverse stock splits with a cumulative ratio of one for 250 or more shares over the prior two-year period.

In new statement, SEC and PCAOB officials highlight emerging market risk disclosure

In this new Statement, a number of SEC and PCAOB officials—SEC Chair Jay Clayton, PCAOB Chair William D. Duhnke III, SEC Chief Accountant Sagar Teotia, Corp Fin Director William Hinman and Investment Management Director Dalia Blass—discuss the risks and exposures of companies based, or with significant operations, in emerging markets, for both U.S. issuers and foreign private issuers. Although the SEC is committed to high-quality disclosure standards, its ability to enforce these standards in emerging markets is limited and is “significantly dependent on the actions of local authorities” and the constraints of “national policy considerations.” As a result, in many emerging markets, “there is substantially greater risk that disclosures will be incomplete or misleading and, in the event of investor harm, substantially less access to recourse, in comparison to U.S. domestic companies.”  The Statement is summarized below. The message is that, notwithstanding similarity in form and appearance between disclosures from U.S. domestic companies and disclosures from or related to emerging markets, disclosures from emerging markets may well differ in scope and quality and companies need to provide appropriate risk disclosure in that regard.

Corp Fin staff offers more relief for paper filings

Apparently, there are still a number of filings submitted on paper, and the filers are experiencing logistical difficulties submitting them. Once again, in light of health and safety concerns related to COVID-19, the Corp Fin staff is providing relief for specified  paper forms submitted for the period from and including April 23, 2020 to June 30, 2020.

Treasury FAQ for PPP loans addresses borrowing by public companies (updated)

The Treasury Department has issued a series of FAQs related to loans made under the Paycheck Protection Program provisions of the CARES Act, one of which is addressed to borrowers that are large companies and, particularly, public companies.  The FAQ provides that, to be eligible for a PPP loan, a borrower must certify, in good faith, that the loan is necessary to support continuing operations.  According to the FAQ, that may be difficult in some cases.