All posts by Cydney Posner

Time for EDGAR Next?

Last week, the SEC proposed changes to the EDGAR system designed primarily to enhance EDGAR security, specifically related to EDGAR filer access and account management. In his Statement, SEC Chair Gary Gensler observed that a “lot has changed in the three decades since the Commission first required mandatory EDGAR filings in 1993.” While the SEC has updated EDGAR several times, it’s been over ten years since the SEC updated EDGAR login, password and other account access protocols in any significant way. Currently, Gensler reminded us, “registrants have one login per company. This is like having a family passing around one shared login and password for a movie streaming app. You know where that can lead. That’s simply not the most secure system—for filers and the Commission alike—when it comes to information relating to financial disclosure. By contrast, today’s actions would further secure login protocols by requiring every person filing something into EDGAR to login with individual credentials and to use multi-factor authentication.” Will the proposed new system, if finalized, put the kibosh on fake SEC Form 4s, fake Forms 8-K, fake Schedules 13D, fake SEC correspondence and other fake SEC filings? The proposal is open for comment for 60 days after publication in the Federal Register.

SEC Enforcement zeroes in on disclosure of related-person transactions

Two recent settled actions suggest that SEC Enforcement seems to be scrutinizing disclosures about related-person transactions—or rather, the absence thereof.  The first, announced last week against Maximus, Inc., looks like a flub by the company in failing to disclose the employment of two immediate family members of a new executive. Maximus was required to pay a civil penalty of $500,000. The second settled action, against Lyft, involved the failure by the company to disclose the role of, and related compensation received by, a board member in architecting the sale by a shareholder of approximately $424 million worth of Lyft shares prior to the company’s IPO. According to the Order, “Lyft, which approved the sale and secured a number of terms in the contract, was a participant in the transaction.” Lyft was required to pay a civil penalty of $10 million. According to an SEC Associate Regional Director, the “federal securities laws required Lyft to disclose that a director profited from a transaction in which Lyft itself was a participant….We remain vigilant in ensuring investors are not deprived of critical information about transactions occurring close to a company’s initial public offering.” With Enforcement’s spotlight apparently now on disclosure of related-person transactions, companies may want to beef up their due diligence processes and disclosure controls around these types of transactions.

California Governor Newsom confirms will sign major climate bills

The suspense is over. The AP is reporting that California Governor Gavin Newsom said on Sunday that he “plans to sign into law a pair of climate-focused bills intended to force major corporations to be more transparent about greenhouse gas emissions and the financial risks stemming from global warming.” Those bills are Senate Bill 253, the Climate Corporate Data Accountability Act,  and SB261, Greenhouse gases: climate-related financial risk. SB 253 would mandate disclosure of GHG emissions data—Scopes 1, 2 and 3—by all U.S. business entities (public or private) with total annual revenues in excess of a billion dollars that “do business in California.” SB 253 has been estimated to apply to about 5,300 companies. SB 261, with a lower reporting threshold of total annual revenues in excess of $500 million, would require subject companies to prepare reports disclosing their climate-related financial risk, in accordance with TCFD framework, and describing their measures adopted to reduce and adapt to that risk.  SB 261 has been estimated to apply to over 10,000 companies. For more information about these two bills, see this PubCo post.

Alliance Advisors wraps up the 2023 proxy season

Alliance Advisors, a proxy solicitation and corporate advisory firm, has posted its 2023 Proxy Season Review, an analysis of trends from the 2023 proxy season. Its principal message: ESG proposals saw sagging results again this year, “continuing a downward trend” from 2021.  Although the number of shareholder proposals submitted to U.S. public companies was substantial (958 as of June 30, 2023, compared with 987 for all of 2022), Alliance Advisors reports that there was a dramatic decline from last year in “average support across all categories of shareholder proposals,” and “the number of majority votes plunged from 80 in 2022 to 28 in the first half of 2023.”  More specifically, according to Alliance, average support on governance proposals fell to 29.9% in 2023 from 37.4% in 2022 and 38.4% in 2021, and there was a bit of a roller-coaster effect on compensation-related proposals, where average support declined to 23.7% in 2023 from 31.4% in 2022 but increased from 21% in 2021.  Most pronounced was the change in average support for environmental and social (E&S) proposals, which declined to 18.3% in 2023 from 27.3% in 2022 and 37.2% in 2021.  Will it turn out that 2021 was the “high-water mark” for shareholder proposals on ESG? The report explores trends in shareholder proposals and examines what may account for the flagging voting results.

California climate bills head to Governor— will he sign? [reposted]

Two far-reaching California climate bills, together the “Climate Accountability Package,” have passed in the California legislature and are headed to Governor Gavin Newsom for a final decision. If signed into law, Senate Bill 253, the Climate Corporate Data Accountability Act, would mandate disclosure of GHG emissions data—Scopes 1, 2 and 3—by all U.S. business entities (public or private) with total annual revenues in excess of a billion dollars that “do business in California.” SB 253 has been estimated to apply to about 5,300 companies. Final amendments to the companion bill, SB261, Greenhouse gases: climate-related financial risk, passed in the California legislature yesterday.  SB 261, with a lower reporting threshold of total annual revenues in excess of $500 million, would require subject companies to prepare reports disclosing their climate-related financial risk, in accordance with TCFD framework, and describing their measures adopted to reduce and adapt to that risk.  SB 261 has been estimated to apply to over 10,000 companies. While there has been substantial opposition to these bills, Bloomberg has reported that “[c]orporate support for the legislation has been growing this year. More than a dozen companies have submitted a letter to lawmakers in support of SB 253” and another dozen wrote in support of SB 261, including, in both cases, some very familiar names. Will the Governor sign these bills into law? Newsom has not yet weighed in. According to the NYT, historically, Newsom “has championed aggressive new climate measures,” but, on SB 253, he has been “uncharacteristically quiet,” perhaps given that his “administration’s finance department issued an analysis in July that opposed the emissions reporting legislation.” Newsom has until October 14 to sign or veto the bills. If he does neither, the measures will become law automatically. 

Starbucks decision to adopt DEI initiative within Board’s business judgment

In August last year, the National Center for Public Policy Research filed a complaint against Starbucks and its officers and directors, National Center for Public Policy Research v. Schultz, alleging that they caused Starbucks to adopt a group of policies that discriminate based on race in violation of a “wide array of state and federal civil rights laws.” Starbucks characterized the policies as designed to “realize its ‘commitment to Inclusion, Diversity, and Equity[.]’”  Starbucks, its officers and directors moved to dismiss, and a hearing on the motion was held on August 11, 2023. At the hearing, the Federal District Court for the Eastern District of Washington granted the motion to dismiss with prejudice and closed the case.   A month on, the Court’s Order has now been released. While the Order discusses the various legal bases for the dismissal, the Court’s sentiment was perhaps best summed up by its statement in the Order that “[t]his Complaint has no business being before this Court and resembles nothing more than a political platform.” Much like the recent decision of the Delaware Chancery Court in Simeone v. The Walt Disney Company, the Court concluded that “[c]ourts of law have no business involving themselves with reasonable and legal decisions made by the board of directors of public corporations.”  Are we starting to see a trend with regard to board business decisions about corporate social policy? 

SEC charges Fluor with improper accounting and inadequate internal accounting controls

In this Order, the SEC brought settled charges against Fluor Corporation, a global engineering, procurement and construction company listed on the NYSE, in connection with alleged improper accounting on two large-scale, fixed-price construction projects. Five current and former Fluor officers and employees were also charged. (The press release includes links to the orders for the five individuals.) Fixed-price contracts mean that cost overruns are the contractor’s problem, not the customer’s, and Fluor’s bids on the two projects were based on “overly optimistic cost and timing estimates.”  When Fluor experienced cost overruns, the SEC alleged, Fluor’s internal accounting controls failed, with the result that Fluor used improper accounting for these projects that did not comply with the percentage-of-completion accounting method under GAAP, leading Fluor to materially overstate its net earnings for several annual and quarterly periods. A restatement ultimately followed. Fluor agreed to pay a civil penalty of $14.5 million and the officers to pay civil penalties between $15,000 and $25,000.  According to the Associate Director in the Division of Enforcement, “[d]ependable estimates and the internal accounting controls that facilitate them are the backbone of percentage of completion accounting and are critical to the accuracy of the financial statements that investors rely on….We will continue to hold companies and individuals accountable for serious controls failures and resulting recordkeeping and reporting violations.”

Corp Fin posts sample comment letter on XBRL

Corp Fin has posted a sample comment letter to companies about their XBRL disclosures. I don’t pretend to know or understand a thing about XBRL, much less Inline XBRL, so I won’t even try to elaborate but, for your reading pleasure, here are the comments.

Are springing penalties a thing? SEC charges Plug Power with accounting, reporting and control failures

In this Order, the SEC brought settled charges against Plug Power, Inc., a provider of green hydrogen and hydrogen-fuel-cell solutions, for financial reporting, accounting and controls failures in connection with a variety of the Company’s complex business transactions. The failures required Plug to restate its financial statements for several years.   In the restatement, Company management identified a material weakness in internal control over financial reporting and ineffective disclosure controls and procedures, allegedly “due to Plug Power’s failure to maintain a sufficient complement of trained, knowledgeable personnel to execute their responsibilities for certain financial statement accounts and disclosures.  Despite these control deficiencies, the Company raised over $5 billion from investors during the relevant Filing Period.” According to the SEC, Plug’s “material weakness in ICFR and ineffective DCP have not been fully remediated,” and the Company is continuing its remediation efforts. Plug agreed to pay a civil penalty of $1.25 million and to implement a number of undertakings, including an undertaking “to fully remediate the Company’s material weakness in ICFR and ineffective DCP within one year” of the SEC’s Order.  Should Plug fail to comply with those undertakings, the Company will be required to pay a “springing penalty,” an additional civil penalty of $5 million.

Nasdaq proposes to amend listing rules regarding waivers of code of conduct

Yesterday, the SEC posted, and declared immediately effective, a Nasdaq rule proposal that would modify the requirements related to waiver of the code of conduct in Listing Rules 5610 and IM-5610.  Under current listing rules, all listed companies must adopt a code of conduct (which must meet the definition of a “code of ethics” in SOX 406(c)), applicable to all directors, officers and employees, and make that code publicly available. Each code of conduct must also contain an enforcement mechanism that ensures prompt and consistent enforcement of the code, protection for persons reporting questionable behavior, clear and objective standards for compliance, and a fair process by which to determine violations. Under current listing rules, waivers of the code for directors or executive officers must be approved by the Board and must be publicly disclosed. The proposal expands the approval authority for code waivers and adds new time deadlines for disclosure of code waivers by foreign private issuers.  Companies may want to review their codes of conduct to make changes as appropriate.