Democrats and Republicans are busy “lobbying” the SEC these days. Republicans want the SEC to nix Nasdaq’s proposal for new listing rules regarding board diversity and disclosure. Democrats want the SEC to beef up its insider trading rules in connection with Rule 10b5-1 plans. Will either find a receptive audience?
The new Administration in Washington brings an expectation of change at the SEC in many areas, one of them being SEC Enforcement, where a shift toward more aggressive enforcement is anticipated. That change has already begun. A week ago, Acting SEC Chair Allison Lee restored authority to senior officers in Enforcement to approve the issuance of Formal Orders of Investigation, an action designed to allow senior officers, under delegated authority, to authorize staff to subpoena documents and take sworn testimony. This delegated authority could have the effect of accelerating action by the SEC. And just a couple of days later, Lee, in consultation with Corp Fin, Enforcement and Investment Management, took action to ensure that Enforcement will no longer recommend to the SEC “contingent settlement offers,” that is, settlement offers that are conditioned on the grant of waivers of the automatic disqualification that results from certain securities violations or sanctions. The action was intended “to reinforce the critical separation” between the enforcement process and the consideration of requests for waivers to ensure that the process for “consideration of waivers is forward looking and focused on protecting investors, the market, and market participants from those who fail to comply with the law.” Will the change have any impact?
In November 2020, amendments to Reg S-K to modernize the required business narrative became effective. The amendments including changes related to disclosure about a company’s human capital resources, replacing a requirement to disclose only the number of employees with a new requirement to disclose, to the extent material, information about human capital resources. In particular, the amendments identified as non-exclusive examples of measures or objectives that the company may focus on in managing the business “measures and objectives that address the attraction, development, and retention of personnel.” Even these measures, the SEC emphasized, were not a mandate. However, then-SEC Chair Jay Clayton said at the time of adoption that he expected “to see meaningful qualitative and quantitative disclosure, including, as appropriate, disclosure of metrics that companies actually use in managing their affairs.” The principles-based rules did not articulate specific metrics for human capital resources disclosure, allowing companies wide latitude in crafting their disclosure to focus on information that is material to each company. At the same time, however, the rules did not provide much direction, leaving many companies at something of a loss for how to proceed. In this paper, Compensation Advisory Partners provides an “early read on developing best practices” regarding human capital disclosure, analyzing the earliest disclosures to provide some guidance on topics, trends and level of detail provided. The CAP paper also includes a number of useful samples. Similarly, Willis Towers Watson reviewed the first three dozen human capital disclosures by companies in the S&P 500 published in 10-Ks filed since the effective date of the new requirement and, in this report, provides some data on the prevalence of topics and metrics.
Yesterday, Corp Fin posted a sample comment letter containing the types of comments that Corp Fin staff might, depending on the particular facts and circumstances, issue to companies seeking to raise capital in securities offerings amid the current market and price volatility. In that context, Corp Fin believes that “specific, tailored disclosure about market events and conditions, the company’s situation and the potential impact on investors is warranted to provide investors with the information they need to make informed investment decisions and comply with the company’s disclosure obligations under the federal securities laws.” Corp Fin suggests that companies preparing offering disclosure documents take these sample comments into account, particularly if the disclosure documents would not typically be subject to staff review, such as automatically effective registration statements and prospectus supplements for takedowns from existing shelf registration statements. While most of the sample comments are not altogether surprising, Corp Fin does have some notable suggested additions to the prospectus cover page.
In December 2019, as part of its strategy of enhancing transparency and accessibility through proactive stakeholder engagement, the PCAOB launched an effort to engage with audit committees, conducting conversations with almost 400 audit committee chairs focused on audit committee perspectives on topics such as audit quality assessment and improvement and auditor communications. (See this PubCo post.) As noted by PCAOB Chair William Duhnke in this PCAOB webinar for audit committees, the PCAOB prioritized this engagement, viewing informed and engaged audit committees as “force multipliers.” The PCAOB continued this outreach to audit committee chairs during 2020, contacting the audit committee chairs of most of the U.S. public companies that had audits inspected by the PCAOB during 2020. The PCAOB spoke with almost 300 audit committee chairs and discussed the results in this new report. The discussions involved Covid-19, communications by the auditor with the audit committee, new auditing and accounting standards and emerging technologies. As part of their discussions with the PCAOB, the chairs identified a number of practices in connection with each topic that they viewed as particularly effective—advice that could be useful to other audit committees.
Remember the clawback provision of SOX 304? That provision provides a reimbursement remedy against CEOs and CFOs when the issuer has restated its financial statements as a result of misconduct. Although the provision was enacted in 2002, it wasn’t until 2007 that an executive was successfully hit with a clawback claim (and a big one it was—the executive returned approximately $600 million in cash and options). And since then, SOX 304 hasn’t gotten all that much of a workout. As reflected in this Order, the SEC has just brought settled charges against the former CEO and CFO of WageWorks Inc., alleging that they made false and misleading statements and omissions, including to the company’s outside audit firm, that led to improper revenue recognition and ultimately resulted in a financial restatement. The settlements with both former executives included reimbursement of incentive-based compensation under SOX 304.
On Monday, the SEC announced that John Coates has been appointed Acting Director of Corp Fin. He has been the John F. Cogan Professor of Law and Economics at Harvard University, where he also served as Vice Dean for Finance and Strategic Initiatives. If that name sounds familiar—even if you haven’t been one of his students—it may be because he sometimes pops up in Matt Levine’s column in Bloomberg as the author of “The Problem of Twelve,” which he describes as the “likelihood that in the near future roughly twelve individuals will have practical power over the majority of U.S. public companies.” Beyond that, he has been a very active member of the SEC’s Investor Advisory Committee, and Committee recommendations he has authored may give us some insight on his perspective on issues.
In this paper, Gaming the System: Three ‘Red Flags’ of Potential 10b5-1 Abuse, from the Rock Center for Corporate Governance at Stanford, the authors examined data from over 20,000 Rule 10b5-1 plans to investigate the extent of insider trading abuse. The study found that some executives did use 10b5-1 plans to conduct “opportunistic, large-scale selling that appears to undermine the purpose of Rule 10b5-1” and highlighted three “red flags” that could be used to detect potentially improper exploitation of Rule 10b5-1. Although the authors acknowledge that they could not determine for certain whether any insiders that avoided losses or otherwise achieved “market-beating returns” actually traded on the basis of material nonpublic information, they contended that average trading returns of the magnitude they found in the study “are highly suspect and, as such, these red flags are suggestive of potential abuse.”
In his 2020 annual letter to CEOs, Laurence Fink, CEO and Chair of BlackRock, the world’s largest asset manager, announced a number of initiatives designed to put “sustainability at the center of [BlackRock’s] investment approach.” According to Fink’s letter, “[c]limate change has become a defining factor in companies’ long-term prospects.” What’s more, he made it clear that companies need to step up their games when it came to sustainability disclosure. (See this PubCo post.) At the Northwestern Law Securities Regulation Institute this week, former SEC Chair Mary Schapiro said that, at companies where she was on the board, Fink’s statement had “an enormous impact last year.” Fink has just released his 2021 letter to CEOs, in which he asks companies to disclose a “plan for how their business model will be compatible with a net zero economy.” Will this year’s letter have the same impact?
For several years, we’ve witnessed a fierce debate regarding the extent to which, in making decisions, boards of traditional corporations may take into account constituencies or stakeholders other than shareholders, such as employees and the larger community, or must consider only the impact of the decision on shareholder value. In a 2014 article In the Harvard Business Law Review, then-Chief Justice Leo Strine of the Delaware Supreme Court argued forcefully that, notwithstanding the allure of “stakeholder capitalism,” current corporate accountability structures make it difficult for directors to “do the right thing.” However, he contended, there is a way to effectively shift the power balance to create incentives for good corporate citizenship: the public benefit corporation. By articulating new corporate purposes and mandates, in Strine’s view, the PBC tweaks the normal corporate accountability and incentive structure that traditionally has made corporate managers accountable to only one constituency—shareholders. (See this PubCo post.) But while there have been a few corporations willing to take the IPO plunge as PBCs, there haven’t been any that have taken the risk, as public companies, of changing to the benefit corporation form—until now that is. And what’s most intriguing is that the shareholder vote at this company in favor of becoming a PBC was overwhelming. Is there more public shareholder support for PBCs than we thought?