New Cooley Alert: ISS Opens Survey for 2025 Policy Changes; Glass Lewis Seeks Informal Feedback
It’s that time again—ISS and Glass Lewis have launched their annual policy surveys, where they seek your feedback on some of their policies. That makes it just right time to get the scoop from this helpful new Cooley Alert, ISS Opens Survey for 2025 Policy Changes; Glass Lewis Seeks Informal Feedback, from our Compensation and Benefits and Public Companies groups. As discussed in the Alert, both surveys address executive comp issues; separately, ISS “focuses more on shareholder proposal-related policies,” and Glass Lewis asks “numerous questions regarding board oversight and performance, including director accountability.” The Alert suggests that the 2025 amendments “may be relatively low impact,” consistent with the “relatively minor policy amendments from ISS and Glass Lewis in 2024.” Be sure to check out the new Alert!
In litigation over the SEC climate disclosure rules, have petitioners created a strawman?
As soon as the SEC adopted final rules “to enhance and standardize climate-related disclosures by public companies and in public offerings” in March (see this PubCo post, this PubCo post, this PubCo post, and this PubCo post), there was a deluge of litigation—even though, in the final rules, the SEC scaled back significantly on the proposal, putting the kibosh on the controversial mandate for Scope 3 GHG emissions reporting and requiring disclosure of Scope 1 and/or Scope 2 GHG emissions on a phased-in basis only by accelerated and large accelerated filers and only when those emissions are material. Those cases were then consolidated in the Eighth Circuit (see this PubCo post) and, in April, the SEC determined to exercise its discretion to stay the final climate disclosure rules “pending the completion of judicial review of the consolidated Eighth Circuit petitions.” (See this PubCo post.) There are currently nine consolidated cases—with two of the original petitioners, the Sierra Club and the Natural Resources Defense Council, having voluntarily exited the litigation (see this PubCo post), and the National Center for Public Policy Research having filed a petition to join the litigation more recently. (See this PubCo post). In June, petitioners began to submit their briefs (see this PubCo post). Now, the SEC has filed its almost 25,000-word brief in the consolidated case, contending that petitioners have set up a “strawman—challenging reimagined rules that the Commission did not enact and criticizing a rationale that the Commission expressly disclaimed.” More specifically, the SEC’s brief defends its authority to adopt these rules and the reasonableness of its actions and process under the APA and contends that, as compelled commercial (or commercial-like) disclosure, the rules are consistent with the First Amendment.
Nasdaq proposes to crank up the heat on companies with shares trading below $1
In July, Virtu Financial, a financial services company and market maker, filed a rulemaking petition with the SEC, asking the SEC to adopt rules that “would prohibit National Securities Exchanges from listing high risk ‘penny stocks’ and mandate additional disclosures from issuers that would facilitate investors’ ability to assess the risks typically inherent in such stocks.” While “penny stocks” are subject to rules designed to prevent fraud and safeguard against potential market manipulation, Virtu said, exchange-listed securities are exempt from those rules “on the premise that exchange listing standards are stringent enough to weed out the riskiest issuers.” According to Virtu, “Main Street investors are being exposed to significant risk from issuers that have the imprimatur of being listed on an exchange when they are no different from penny stocks listed on the OTC market.” In recent years, Virtu contended, the number of companies at risk of delisting because of failure to meet the minimum price of $1 per share, primarily on Nasdaq, has spiked—a problem that has been exacerbated by the increasing use of reverse splits to avoid delisting, potentially resulting in problems for brokers and investors. While, in the last several years, Nasdaq has taken some steps to address the situation, Virtu contended that “minor tweaks to Nasdaq’s listing rules are insufficient to address the problem.” To that end, in the petition, Virtu requests “a more substantial overhaul.” Perhaps the petition gave Nasdaq a big nudge? We now have a new rule proposal from Nasdaq aimed at accelerating the delisting process for companies with shares that trade below $1. Briefly, under the proposal, a company would be suspended from trading on Nasdaq if the company has been non-compliant with the $1.00 bid price requirement for more than 360 days. In addition, any company that has effected a reverse stock split within the prior one-year period but becomes non-compliant with the $1.00 minimum bid price requirement would immediately be sent a Delisting Determination without any compliance period. A spokesman for Virtu told the WSJ that the proposed changes were “a step in the right direction. ‘While we are encouraged by Nasdaq’s efforts here, there remains more room for improvement across all markets,’ he said.”
Delaware Supreme Court considers advance notice bylaws
In this recent case, Kellner v. AIM ImmunoTech, the Delaware Supreme Court articulated a two-part framework for judicial consideration of advance notice bylaws in the event of a challenge to their adoption, amendment or enforcement. If the bylaws are contested, they must be “twice-tested—first for legal authorization, and second by equity”: first, a court must evaluate “whether the advance notice bylaws are valid as consistent with the certificate of incorporation, not prohibited by law, and address a proper subject matter”; second, a court must evaluate “whether the board’s adoption, amendment, or application of the advance notice bylaws were equitable under the circumstances of the case.” Also, it’s a good idea to make the bylaws “intelligible.” In this case, the Court held that “(1) one ‘unintelligible’ bylaw is invalid; (2) the remaining amended advance notice bylaws subject to this appeal are valid because they are consistent with the certificate of incorporation, not prohibited by law, and address a proper subject matter; and (3) the AIM board acted inequitably when it adopted the amended bylaws for the primary purpose of interfering with, and ultimately rejecting, Kellner’s nominations. Thus, the remaining bylaws challenged on appeal are unenforceable.” Nevertheless, Kellner’s deceptive conduct meant that his nominations notice would not stand.
Do companies adopt clawback policies exceeding minimum SEC requirements?
In 2022, after seven years of marinating on the SEC’s long-term agenda, the SEC adopted rules to implement Section 954 of Dodd-Frank, the clawback provision. The rules directed the national securities exchanges to establish listing standards requiring listed issuers to adopt and comply with a clawback policy and to provide disclosure about the policy and its implementation. Under the rules, the clawback policy was required to provide that, in the event the listed issuer was required to prepare an accounting restatement—including not just “reissuance,” or “Big R,” restatements, but also “revision” or “little r” restatements—the issuer must recover the incentive-based compensation that was erroneously paid to its current or former executive officers based on the misstated financial reporting measure. (See this PubCo post.) The requirements have been in effect for a bit now. But how did companies respond? Did they stick to the script? Or, after examining their own “governance philosophies,” did companies amp up the rules to actually expand the scope of their clawback policies? This piece from consultant FW Cook reporting on their study of large cap companies showed that “80% maintain an expanded clawback policy that goes beyond the SEC requirements.”
With the demise of Chevron deference, will the courts now turn to Skidmore?
In Loper Bright v. Raimondo, which overturned the 40-year-old doctrine of Chevron deference (see this PubCo post), SCOTUS highlighted the continued relevance of the doctrine articulated in Skidmore v. Swift & Co., often described as a principle of appropriate “respect” for agency interpretations, but something less than deference—i.e., the court must still be persuaded. The doctrine of Chevron deference, as you know, mandated that, if a statute did not directly address the “precise question at issue” or if there was ambiguity in how to interpret the statute, courts had to accept an agency’s reasonable interpretation of a law unless it was arbitrary or manifestly contrary to the statute. In Loper Bright, SCOTUS made clear that, while Chevron deference might now be toast, courts could still, in exercising their independent judgment in determining the meaning of statutory provisions, “seek aid from the interpretations of those responsible for implementing particular statutes,” citing Skidmore. Will Skidmore be the new go-to doctrine for courts adjudicating agency regulations? Not so far, according to this new article from Bloomberg.
Nasdaq proposes to codify new standards for review by Listing Council [Updated 10/17/24]
Nasdaq is proposing to codify the standards of review that govern appeals and reviews before the Nasdaq Listing and Hearing Review Council, referred to as the Listing Council. When a listed company receives a Staff Delisting Determination or a Public Reprimand Letter, or when its application for initial listing is denied, the company may request a review before a Hearings Panel. The decision by the Hearings Panel may then be reviewed by the Listing Council, either on appeal by the company or on the Listing Council’s own initiative. Nasdaq observes that the use of the Listing Council “helps address the perception of conflicts that may otherwise exist given Nasdaq’s status as both a self-regulatory organization and a for-profit entity.” Currently, however, there is no standard of review applicable to these Listing Council reviews of Hearings Panel decisions and, as even Nasdaq acknowledges, the Listing Rules are ambiguous regarding the extent of the Listing Council’s mandate in this context. Accordingly, Nasdaq now proposes to adopt two new standards of review: one standard—intended to “limit frivolous and baseless appeals”—for appeals of Hearings Panel decisions before the Listing Council and a second standard for Hearings Panel decisions called for review by the Listing Council. Nasdaq would apply the new standards of review to all matters that enter the Listing Council review process following approval of the proposal; matters pending review by the Listing Council when the proposal becomes effective would remain subject to current rules.
Democrats introduce bill to restore Chevron deference
Senator Elizabeth Warren and several other Democrats have just introduced a bill, the Stop Corporate Capture Act, designed to checkmate SCOTUS’s recent decision in Loper Bright v. Raimondo (see this PubCo post), which overturned the decades-long deference of courts, under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, to the reasonable interpretations of statutes by agencies. The doctrine of Chevron deference mandated that, if a statute did not directly address the “precise question at issue” or if there was ambiguity in how to interpret the statute, courts had to accept an agency’s “permissible” interpretation of a law unless it was arbitrary or manifestly contrary to the statute. According to Warren’s press release, the “Stop Corporate Capture Act codifies the Chevron doctrine and reforms the regulatory process to end corporations’ influence over the rulemaking process, prioritize scientific and public integrity, and reduce delays in implementation of laws.” The bill, she contended “will bring transparency and efficiency to the federal rulemaking process, and most importantly, will make sure corporate interest groups can’t substitute their preferences for the judgment of Congress and the expert agencies.” Senator Chris Van Hollen, another sponsor of the bill, observed that “[i]t’s impossible to overstate the harm that Americans could face if we don’t act. This legislation protects federal agencies’ bedrock authority to carry out the laws that Congress passes—while making the regulatory process more open, transparent, and grounded in the public interest.” A similar bill, introduced by Representative Pramila Jayapal, is pending in the House. Will the legislation succeed? Don’t bet on it. According to Reuters, the bill has “slim chances of passing in an election year in the Senate, which Democrats only narrowly control.” Still, there’s always next year—depending, of course, on the results of the election.
SEC approves NYSE rule regarding change of primary business
In April, the NYSE filed a proposed rule change with the SEC that would allow the NYSE to commence immediate suspension and delisting procedures for a listed company if that company has “changed its primary business focus to a new area of business that is substantially different from the business it was engaged in at the time of its original listing or which was immaterial to its operations at the time of its original listing.” In July, the NYSE amended the proposal to make several changes, including a new requirement to provide prompt written notice to the NYSE if a listed company undertakes a change in its primary business focus. The SEC has now issued an Order granting accelerated approval of the amended proposal.
Cooley Alert: Federal Court Dismisses Bulk of SEC’s Complaint Against SolarWinds in Cyberattack Case
The 2020 SolarWinds hack was perhaps one of the worst cyberattacks in history, reportedly directed by the Russian intelligence service and affecting 18,000 customers, including some very well-known companies and about a dozen government agencies including the Treasury, Justice and Energy departments. Following the cyberattack, the SEC filed a complaint against SolarWinds and its Chief Information Security Officer, charging securities “fraud and internal control failures relating to allegedly known cybersecurity risks and vulnerabilities.” (See this PubCo post.) SolarWinds and Brown then moved to dismiss the complaint for failure to state a claim. On July 18, 2024, a federal district court issued a 107-page opinion, dismissing most of the SEC’s case against SolarWinds and its CISO.
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