Category: Corporate Governance
Shutdown updates from Corp Fin—how did they do that?
You’ll recall that, at the end of last year prior to the shutdown, Corp Fin posted a series of FAQs designed to help companies in the registration process (or contemplating offerings) but expected to be caught in the shutdown. (See this PubCo post.) Corp Fin has now updated those FAQs, revising numbers 4 and 5 and adding new numbers 6 and 9, briefly summarized below. (The mystery is how Corp Fin was able to prepare the updates if no one was permitted to work?)
Cooley Alert: SEC Adopts Final Hedging Disclosure Rules
If you’re looking for some entertaining reading, look no further! It’s the Cooley Alert version of The Big Short: SEC Adopts Final Hedging Disclosure Rules. Why wait for the movie adaptation when you can read the Alert now?
SEC adopts final hedging disclosure rules
On Tuesday, the SEC finally dredged up the 2015 proposal to implement section 955 of Dodd-Frank regarding hedging disclosure in proxy statements and, without an open meeting, voted—yes finally—to adopt it. Section 955 mandated disclosure about the ability of a company’s employees or directors to hedge or offset any decrease in the market value of equity securities granted as compensation to, or held directly or indirectly by, an employee or director. According to the legislative history, the purpose was to “allow shareholders to know if executives are allowed to purchase financial instruments to effectively avoid compensation restrictions that they hold stock long-term, so that they will receive their compensation even in the case that their firm does not perform.” The final rules were adopted “along the lines proposed,” but with some modifications.
SEC posts Request for Comment on Earnings Releases and Quarterly Reports
Right before the SEC open meeting originally scheduled to discuss the issue, the SEC has posted a “request for comment soliciting input on the nature, content, and timing of earnings releases and quarterly reports made by reporting companies.” (The matter has been deleted from tomorrow’s agenda.) According to the press release, the request for comment solicits “public input on how the Commission can reduce burdens on reporting companies associated with quarterly reporting while maintaining, and in some cases enhancing, disclosure effectiveness and investor protections. In addition, the Commission is seeking comment on how the existing periodic reporting system, earnings releases, and earnings guidance, alone or in combination with other factors, may foster an overly short-term focus by managers and other market participants.” The public comment period will be open for 90 days following publication of the Request in the Federal Register.
(Note that the SEC also adopted hedging policy disclosure rules and likewise removed that from tomorrow’s agenda, but more on that tomorrow.)
New reporting standard for human capital management
As discussed in this PubCo post, human capital management has become a significant concern of institutional investors. For example, for 2018, asset manager BlackRock identified human capital management as one of its engagement priorities, echoing the exhortation from BlackRock CEO Laurence Fink in his 2018 annual letter to public companies: with governments seeming to fall short, it is up to the private sector to “respond to broader societal challenges”; companies must look to benefit their broader communities and all of their stakeholders, including employees, and that involves investment in efforts to create a diverse workforce, to develop retraining programs for employees in an increasingly automated world and to help prepare workers for retirement. (See this PubCo post.) Some institutional investors have also encouraged companies to provide more transparency on HCM practices. But what exactly should they disclose?
Clayton Q&A and ESG at the SEC’s Investor Advisory Committee meeting
At last week’s meeting of the SEC’s Investor Advisory Committee, the Committee members held a Q&A session with SEC Chair Jay Clayton, followed by a discussion of environmental, social and governance disclosure, where the main question appeared to be whether to recommend that ESG disclosure be required through regulation, continued as voluntary disclosure but under a particular framework advocated by the SEC or continued only to the extent of private ordering as is currently the case.
Among the points addressed in the Q&A was a potential government shutdown. Clayton said that the SEC was planning for a possible shutdown, and that, as in previous shutdowns, he expected the SEC would be able to continue its operations for a number of days post-shutdown.
As issues of corporate social responsibility continue to gain ground, will the issue of gun safety become more prominent this proxy season?
A lot has been written about institutional investors’ turn toward issues of corporate social responsibility. One CSR topic that has received a lot of attention in the last few years has been firearms safety. In this post, published last week on The Harvard Law School Forum on Corporate Governance and Financial Regulation, a coalition of investors, including CalPERS, CalSTRS, Rockefeller Asset management and State Street Global Advisors, has developed The Responsible Civilian Firearms Industry Principles, intended to encourage companies involved in the manufacture, distribution, sale and enforcement of regulation of the firearms industry to take action in support of the responsible use of firearms. According to the post, in asserting its “role as investors,” the group identifies “expectations for the firearms industry that will reduce risks and improve the safety of civil society at large. Further, we commit to monitoring progress by companies over time and engaging with them regularly on this issue, especially in support of enterprises that champion adoption of responsible practices….We call on companies within the civilian firearms industry to publicly demonstrate and publish their compliance with each of these principles, failing which, we will consider using all tools available to us as investors to mitigate these risks.”
Clayton reviews 2019 regulatory priorities and risks the SEC is monitoring
In a speech given yesterday at Columbia University, SEC Chair Jay Clayton reviewed the SEC’s regulatory achievements over the past year, metaphorically slapping the SEC and the staff on the back for a job well done in accomplishing 88% of the items identified on the SEC’s near-term agenda for fiscal 2018. Of particular interest, however, was his discussion of the some of the priority items on the 2019 agenda. In closing, Clayton hammered again at three risk areas that the SEC is currently monitoring—yes, those three. Clearly, the signal is that companies should consider these risks.
The impact of short-term pressures on long-term decision-making
In this article in the WSJ and this article in the New Yorker, the authors discuss the challenges companies encounter when they try to make long-term investment decisions in the face of short-term market pressures: the debate between short-term and long-term thinking on Wall Street “is a key concern for chief executives trying to justify major capital investments that can take years to pay off. Long-range strategies can be hard to pull off in an era when Wall Street is fixated on three-month reporting periods.” Should companies try to please long-term investors or investors who are “playing the quarterly game?” What about hedge-fund activists that threaten to force the company to adopt a short-term perspective?
Members of Chevedden group shift focus to environmental, social and political proposals
Companies that have long battled the prolific John Chevedden group on corporate governance shareholder proposals, as first noted on theCorporateCounsel.net proxy season blog, may be heartened to hear — or maybe not—that some members of the group are changing their focus.
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