You no longer have to be an EGC to…

by Cydney Posner

…submit a confidential draft registration statement for IPOs, as well as for most offerings made in the first year after going public, Corp Fin announced yesterday.  Until now, that beneficial process, first permitted by the JOBS Act, has been available only to emerging growth companies. The extension of this confidential process will allow more companies to defer the public disclosure of sensitive or competitive information until they are almost ready to market the offering—and potentially to avoid the public disclosure altogether if they ultimately decide not to proceed with the offering. According to the press release, the change “will provide companies with more flexibility to plan their offering. The nonpublic review process after the IPO reduces the potential for lengthy exposure to market fluctuations that can adversely affect the offering process and harm existing public shareholders. By requiring a public filing period prior to the launch of marketing, the process incorporates a feature of the EGC review process that provides an opportunity for the public to evaluate those offerings.” The new process will become available on July 10, 2017. Continue reading

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SCOTUS grants cert in case involving whistleblower statute and case involving state court jurisdiction over ’33 Act cases

by Cydney Posner

SCOTUS will be hearing at least two cases of interest next term: one case, Somers v. Digital Realty Trust, will address the split in the circuits regarding whether the Dodd-Frank whistleblower anti-retaliation provisions apply regardless of whether the whistleblower blows the whistle all the way to the SEC or just internally at the company. The second case,  Cyan Inc. v. Beaver County Employees Retirement Fund, will address whether state courts have jurisdiction over cases brought solely under the Securities Act of 1933  Act.  Continue reading

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Filed under Litigation, Securities

What’s up with the declining number of IPOs?

by Cydney Posner

At a meeting on Thursday of the SEC’s Investor Advisory Committee, a panel discussed the declining number of IPOs, a topic that seems to be top of mind for many in the securities arena.  Of course, there’s a reason for that; according to a panelist from EY, there were about 8,000 public companies in 1996, but only about 4,000 now. What happened? Continue reading

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Filed under Corporate Governance, Securities

Does the health of the economy depend on getting the role of shareholders right?

by Cydney Posner

Are shareholders really the “owners” of corporations? Even though shareholders have no responsibilities to the corporations they “own”? Should corporations be managed for the sole purpose of maximizing shareholder value?  Are shareholders even unanimous in that objective? Is shareholder centricity really the right model for good governance of corporations? What changes in corporate governance have been fueled by the shareholder primacy model?  Do those changes make sense?  What has been the adverse fallout from the current fastidious devotion to shareholder preeminence?  These are just some of the issues addressed in this terrific piece by two Harvard Business School professors, Joseph L. Bower and Lynn S. Paine, in the Harvard Business Review. In their view, the “health of the economic system depends on getting the role of shareholders right.”  Highly recommend. Continue reading

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Filed under Corporate Governance, Corporate law, Executive Compensation

Will dual-class structures torpedo the business judgment rule?

by Cydney Posner

While there has certainly been a lot of debate about the merits and demerits of dual-class stock, one interesting angle was raised by Charles Elson, director of the University of Delaware’s John L. Weinberg Center for Corporate Governance Delaware Law. In an interview reported in Bloomberg BNA, Elson predicts that expanded use of dual-class corporate structures will lead the Delaware courts to reconsider the business judgment rule.  For companies with no- or low-vote classes of shares, is the business judgment rule in jeopardy?   Continue reading

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Filed under Corporate Governance, Corporate law, Litigation

House passes Financial Choice Act of 2017. What now?

by Cydney Posner

The Financial Choice Act of 2017 has been passed by the House (almost surreptitiously, given the unwavering focus on the Senate hearing today). According to the WSJ, the House vote was 233 to 186.  The bill, sponsored by Jeb Hensarling, Chair of the House Financial Services Committee, was framed as a Republican proposal to reform the financial regulatory system and relieve business community of the affliction of Dodd-Frank.  The subtitle on the WSJ article tells you how to think about this for now:  “Financial Choice Act is Republicans’ opening bid to loosen regulation; unlikely to become law.” Reuters  also described the approval of the bill as “a move that is expected to die in the Senate,” but relegated the sentiment to the first paragraph. Continue reading

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Pay for performance — more style than substance?

by Cydney Posner

Comp Committees appear to have gotten the message when it comes to executive pay for performance.  As discussed in this article in the WSJ, executive compensation “is increasingly linked to performance,” but investors are now asking whether the bar for performance targets is set too low to be effective. Are companies just paying lip service to the concept? Continue reading

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Filed under Corporate Governance, Executive Compensation