Category: Securities
Have we reached an inflection point on environmental and social shareholder proposals?
In this thoughtful article from the Managing Editor at ISS Analytics, The Long View: US Proxy Voting Trends on E&S Issues from 2000 to 2018, the author contends that, notwithstanding high-level data showing relatively static median vote support for shareholder proposals over the last 19 years, that data is deceptive: “the reality is that investor voting behavior among owners of U.S. companies has changed significantly—perhaps almost revolutionarily—over the past two decades.” What’s more, “the most significant change in investors’ voting behavior pertains to environmental and social issues, as these proposals are earning record levels of support in recent years.”
When it comes to ICFR, the SEC will not tolerate if you do not remediate
Now back to work, SEC Enforcement once again takes up the issue of internal control over financial reporting. In this instance, the SEC announced settled charges against four public companies for failing to remediate internal control weaknesses—for years! We’re talking seven to ten years. The companies seemed to be under the misimpression that, as long as they disclosed the material weaknesses, they were in the clear. But they learned the hard way that that was not the case. According to Melissa Hodgman, an Associate Director in Enforcement, “Companies cannot hide behind disclosures as a way to meet their ICFR obligations. Disclosure of material weaknesses is not enough without meaningful remediation. We are committed to holding corporations accountable for failing to timely remediate material weaknesses.”
Corp Fin reopens for business
Today, Corp Fin posted a statement regarding its return to normal operations. For the most part, “absent compelling circumstances,” Corp Fin expects to address filings, submissions and requests in the order submitted. The message is this: expect everything to take longer than usual as the staff plays catch-up.
SEC back to normal?
Unless you’ve been unplugged and hiding under a rock recently, you’ve heard that the federal government shutdown has ended—at least for the next three weeks. In a statement today, SEC Chair Jay Clayton said that the SEC has “resumed normal staffing levels and is returning to normal operations.” What that will mean in practice, we don’t really know yet, given the likelihood of significant backlogs that accumulated over the past month. Clayton advised that the leaders of Divisions, such as Corp Fin, are consulting with the staff and “are continuing to assess how to most effectively transition to normal operations.” Corp Fin is expected to publish a statement (as are other offices) “in the coming days regarding their transition plans,” which will be available on the SEC website.
New House bill to curb potential abuse of 10b5-1 plans
As noted in thecorporatecounsel.net blog, the Chair of the House Financial Services Committee, Maxine Waters, has introduced H.R. 624, the “Promoting Transparent Standards for Corporate Insiders Act,” which could require some significant tweaks to Rule 10b5-1 plans and disclosure about them. Co-sponsored by the Ranking Republican Member on the Committee, Patrick McHenry, the legislation would require the SEC to conduct a study of whether specified amendments to the rules governing 10b5-1 plans should be adopted, report back within a year and then adopt rule amendments consistent with the findings of the study. The high-level bipartisan sponsorship of the legislation suggests that there is a reasonable chance that it could move forward, but certainly does not guarantee that it will survive in the Senate. You might recall that the JOBS and Investor Confidence Act of 2018 (the erstwhile JOBS Act 3.0), which included similar provisions regarding Rule 10b5-1, passed the House by a vote of 406 to 4, but made no progress in the Senate. (See this PubCo post.) The new leadership must think that the chances for enactment are better with a standalone bill.
LIBOR phase-out—issues to consider
You may recall that at the end of last year, SEC Chair Jay Clayton and Corp Fin Chief Accountant Kyle Moffatt were warning at various conferences about some of the risks the SEC was monitoring, among them the LIBOR phase-out, which is expected to occur in 2021. As reported by the WSJ, Moffatt indicated that “to the extent that the phaseout of Libor is material to a company,…we would definitely expect a company to disclose that fact and describe the implications of the phaseout, including any associated risks, to investors.’” (See this PubCo post.) But, in making that assessment and any related disclosure, what should companies consider?
Should we get rid of EPS?
Much has been written about the problems associated with the prevalence of short-term thinking in corporate America. As noted in a post from The Harvard Law School Forum on Corporate Governance and Financial Regulation, an academic study revealed that “three quarters of senior American corporate officials would not make an investment that would benefit a company over the long run if it would derail even one quarterly earnings report.” (See this PubCo post and this article in The Atlantic.) Apparently, that was no joke. As reported in Forbes, for the first six months of 2018, companies in the S&P 500 spent $367 billion on stock buybacks—which can drive increases in quarterly EPS without increasing the underlying long-term economic value of the company—while capex totaled only $317 billion. ls there a way to engineer a course correction?
IPO mix and match?
You might want to take a look at this interesting column from Bloomberg’s Matt Levine, talking about some recent developments in the IPO market. Apparently, a second company is contemplating conducting an IPO through a direct listing, a listing process run outside of the conventional underwritten offering in which the company files with the SEC to allow certain of its outstanding shares to be sold directly into the market, without the traditional help from the underwriters in marketing the deal. Although the company does not raise any funds itself, it becomes a public company and provides a market in which shares may sold by selling shareholders at prevailing market prices. The process may be particularly appealing to companies that are very well known and well funded, but want to trade publicly, since the costs of going public are generally lower and the process can be somewhat quicker than a traditional IPO.
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 enforcement action for violation of non-GAAP “equal or greater” prominence requirement
In case you were questioning whether the SEC continues (assuming it reopens at some point) to address the inappropriate use of non-GAAP financial measures with the same level of gravity as in prior years, you might take note of this recent (cusp of SEC shutdown) enforcement action against ADT. In the proceeding, the SEC sought a cease-and-desist order, alleging that the company violated the non-GAAP disclosure requirements. Interestingly, however, the allegations did not involve any of the more thorny issues regarding individually tailored recognition measures that the SEC sometimes considers misleading, but rather the more prosaic “equal or greater prominence” requirements.
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