SEC continues to grant no-action relief in connection with proxy access fix-it proposals

by Cydney Posner

The SEC has posted a number of additional Corp Fin responses to requests for no-action, as well as to requests for reconsideration of previous denials of relief, regarding shareholder proposals to amend proxy access bylaws, so-called “fix-it” proposals. In all cases, the companies argued that they should be permitted to exclude the fix-it proposals as “substantially implemented” under Rule 14a-8(i)(10). The requests were successful in obtaining no-action relief in all cases except one. As in the past, the staff has not identified the key determining factor, but companies now seem to have found a formula for successfully excluding these proposals. Continue reading

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Exhibits just one click away! (updated)

by Cydney Posner

At an open meeting this morning, the SEC voted to adopt new rule and form amendments requiring that the exhibit index in registration statements and reports contain hyperlinks to the exhibits listed and that these filings all be made in HTML format. (The SEC also voted to propose the use of Inline XBRL for financial statement information. See this PubCo post.) Not terribly controversial, which probably explains how any action was taken at all, given that there are now only two commissioners and they have diametrically opposed views on just about everything.

This version of the post has been updated to reflect information from the SEC press release and related fact sheet and the adopting release. Continue reading

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SEC votes to propose Inline XBRL (updated)

by Cydney Posner

At an open meeting this morning, the SEC voted to propose the mandatory use of Inline XBRL (eXtensible Business Reporting Language) for financial statement information. The proposal is intended to facilitate “improvements in the quality and usefulness of XBRL data and, over time, decreas[e] filing costs by decreasing XBRL preparation costs.” In June 2016, the SEC began a voluntary program allowing companies to file structured financial statement data using Inline XBRL. (See this PubCo post.) The progress of this sample suggested that a wider use was feasible. There are now only two SEC commissioners, but they both seemed to be genuinely excited about Inline XBRL.

(This post is based on notes from the open meeting and has been updated subsequent to initial posting to reflect information from the press release and related fact sheet and from the proposing release.)

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Exhibits just one click away!

by Cydney Posner

At an open meeting this morning, the SEC voted to adopt new rule and form amendments requiring that the exhibit index in registration statements and reports contain hyperlinks to the exhibits listed and that these filings all be made in HTML format. (The SEC also voted to propose the use of Inline XBRL for financial statement information. See this PubCo post.) Not terribly controversial, which probably explains how any action was taken at all, given that there are now only two commissioners and they have diametrically opposed views on just about everything. (This post reflects notes from the open meeting, prior to issuance of the related press release and adopting release. For more detailed information, see this subsequent PubCo post.) Continue reading

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Another theory on Corp Fin’s position on proxy access fix-it proposals

by Cydney Posner

Corp Fin has refined its position with regard to exclusion of proposals to amend existing proxy access bylaws.  However, the basis for the staff’s determination to grant or refuse no-action relief in that context remains a conundrum.
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For the avoidance of doubt, Acting Corp Fin Director confirms conflict minerals and pay-ratio disclosure rules still in effect

Cydney Posner

As reported by the WSJ, at the SEC Speaks conference today, to avoid any doubt on the matter, Acting Corp Fin Director Shelley Parratt reminded companies that, notwithstanding the two requests for public comment issued by Acting SEC Chair Michael Piwowar and all of the Executive Orders aimed at deregulation, the conflict minerals and pay-ratio disclosure rules continue in effect (until of course they don’t). The staff is, however, reviewing comments on these rules as they are received. Continue reading

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Corp Fin refines its position on proxy access fix-it proposals (updated)

by Cydney Posner

Corp Fin has refined its position with regard to exclusion of proposals to amend existing proxy access bylaws.  As you may recall, the line drawn so far by Corp Fin has been that, where the shareholder proposal related to initial adoption of proxy access, Corp Fin has continued to grant no-action relief and permit exclusion of proxy access proposals as “substantially implemented” under Rule 14a-8(i)(10), so long as the bylaw provisions adopted by the companies contained the same eligibility percentage and duration of ownership thresholds (3%/3 years) as in the proposal, even though the bylaws also included  a number of “procedural limitations or restrictions that were inconsistent with or not contemplated by the proposals.”  However, with regard to shareholder proposals to amend a company’s existing proxy access bylaw — so-called “fix-it” proposals — the staff had refused to grant no-action relief on that same basis. Meanwhile, both proponents and companies have been exploring the contours of those staff positions, trying to determine how best to advance their opposing arguments. (See this PubCo postthis PubCo post and this PubCo post.) In a series of no-action letters recently posted, Corp Fin has permitted exclusion of some fix-it proposals under Rule 14a-8(a)(i)(10) on the basis that the proposals have been “substantially implemented,” but denied relief for others. Although the staff’s rationale is far from exquisitely clear, nevertheless, companies seeking to exclude fix-it proposals at least now have some successful models on which to base their requests. (For another theory, see this PubCo post.) Continue reading

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