Proxy Season 2015 Prep

The beginning of the new year signals that it’s time to think about your 2015 proxy.

The last several years have witnessed interesting developments in the topics and trends of proxies and annual meetings.

While distinct but related, shareholder activism has increased, bolstered by several notable victories last year such as Yum! Brands and Bob Evans Farms.

Fortunately for us, Latham & Watkins, the law firm, provides valuable information about the topics and trends for proxy preparation to help us prepare.

Latham & Watkins is offering a free webinar on preparing for the 2015 proxy season (click here – registration required) and provides a useful write-up on proxy supplements (click here).

Please stay tuned for more developments as we move into the new proxy season.

 

 

SEC’s New “Broken Window” Policy

Applying a phrase from street cop law enforcement, a “broken window” policy, the SEC’s new enforcement zeal for what were considered minor infractions sends a signal which companies need to heed or suffer the consequences.

The SEC now has tools to enable it to identify and pursue a range of issues as described in a recent post on this site (click here).

This has resulted in enforcement actions against companies, board members and executives for:

Stock transaction and ownership reporting rule failures

Audit committee chair reporting failures, and

Corporate officer certification errors.

Failure to heed the message risks you and your firm becoming the next example.

Winston Strawn, the law firm, produced a podcast and slide deck on the SEC’s “broken windows” policy which is worth the review (click here).

Public Company SEC Topics Webinar

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Board members and corporate executives of public companies will find this webinar a valuable discussion of key issues about the new energized SEC enforcement approach.

Latham & Watkin’s webinar covers many issues and examples including:

  • SEC’s greater use of technology to permit investigation and enforcement of infractions previously unobserved;
  • Increasing use of whistleblower incentives to discover and prosecute infractions;
  • Greater coordination between SEC Divisions including Corporation Finance and Enforcement.

It’s better to be forewarned than to remain unaware and vulnerable.

Click on this link to go to the sign-up page for Latham & Watkin’s “Securities and Exchange Commission: Critical Issues Facing Public Companies” (Duration: 60 minutes)

SEC Charges Two Audit Committee Chairs

In another shot across the bow, the SEC has charged two companies’ Audit Committee Chairs for failing to act on obvious red flags of fraudulent accounting and financial reporting.  Both of the companies were primarily operating in China but the Audit Committee Chairs are US citizens.

While some might be inclined to discount this warning signal because of the China connection, Daniel Goelzer, a partner with law firm Baker & McKenzie and former SEC general counsel and former member of the Public Company Accounting Oversight Board suggests otherwise.

Click here to read the article from Baker & McKenzie from which this excerpt is drawn:

“During the past year, the SEC chair and staff have announced a new focus on gatekeepers, such as attorneys, accountants, and directors, and these cases seem to illustrate how the Commission intends to apply its gatekeepers program to audit committee members,”

Coming on the heels of the SEC charging company executives for false certification (click here), this seems to signal the SEC’s serious intent to enforce its rules rather than look the other way.

Below are links to a Compliance Week article and two SEC documents describing the circumstances and charges of the two cases mentioned.

Compliance Week article: http://www.complianceweek.com/blogs/accounting-auditing-update/sec-charges-two-audit-committee-chairs-for-blind-eye#.VAODSWx0wdU

Agfeed’s SEC Complaint: http://www.sec.gov/litigation/complaints/2014/comp-pr2014-47.pdf

L&L Energy Cease and Desist Order: http://www.sec.gov/litigation/admin/2014/34-71824.pdf

Expanding the Compensation Battle

Compensation paid to management has been a source of contention between companies and shareholders for some time.   This year is no exception as described in recent articles in “The Street” and “Forbes”.

The new front in the compensation battle, however, involves payment to non-executive directors or what directors pay themselves.  A recent lawsuit challenging Facebook’s Board compensation policies is a notable example (click for “Reuters” article).

This battle has been building as described by Michael Melbinger, an attorney with Winston & Strawn on “Lexology” (Click here).  Recent successes by shareholders in shareholder derivative litigation will likely prompt more challenges.

Michael Melbinger notes:

DGCL § 141(h) expressly provides that “Unless otherwise restricted by the certificate of incorporation or bylaws, the board of directors shall have the authority to fix the compensation of directors.” However, that does not prevent shareholders from challenging the amount or form of compensation paid.

Companies are likely to find that when activists challenge management’s compensation, challenging board compensation is likely a next step.

SEC Charges Company Exec’s with False Certification

In a rare case, the SEC has charged the CEO and CFO of Quality Services Group, a computer equipment company, with falsely certifying its financial statements.

The charge stems from an SEC review of the company procedures which revealed that company management misrepresented the state of its internal controls over financial reporting to its auditors, and not from a misstatement of financial results.

Excerpt from SEC Press Release

The Sarbanes-Oxley Act of 2002 requires a management’s report on internal controls over financial reporting to be included in a company’s annual report. The CEO and CFO must sign certifications confirming they’ve disclosed all significant deficiencies to the outside auditors, reviewed the annual report, and attest to its accuracy.

“Corporate executives have an obligation to take the Sarbanes-Oxley disclosure and certification requirements very seriously. Sherman and Cummings flouted these regulatory requirements and misled investors and external auditors in the process,” said Scott W. Friestad, associate director in the SEC’s Enforcement Division.

FierceCFO, the online newsletter noted

Indeed, many companies and executives are likely taking a careful look at internal controls, given the charges the Securities and Exchange Commission levied recently against Quality Services Group, a computer equipment company in Florida.

Click here to read the SEC press release.

Click here to read the FierceCFO article.

SEC Money Fund Rules Adopted

The SEC has adopted the much-debated new rules for institutional prime and municipal money funds.

Key elements include:

  1. Money funds will carry a net asset value (NAV) to emphasize that the value is not constant as was the prior marketing positioning.
  2. Money funds can impose liquidity fees and gates (limitations on redemptions) if necessary.
  3. The funds will carry enhanced diversification, disclosure and stress testing requirements.
  4. The IRS will release a new simplified treatment to enable investors to track gains and losses and avoid wash sales.

Detractors of these new rules suggest that sophisticated Wall Street investors will avoid the liquidity gates by quickly redeeming capital prompting a “rush for the door” behavior.

Click here to read the new SEC rules.

Click here to read the New York Times “Dealbook” article.

SEC’s Proxy Advisory Guidance Reinforces Current Rules

The SEC’s recently issued guidance regarding investment advisor’s responsibilities in proxy voting and the role of proxy advisory firms disappointed some companies and legal professionals for failing to reign in proxy advisory firms.

Proxy advisory firms have been steadily gaining influence among institutional investors which threatens companies’ longstanding advantage (see my posts – Proxy Advisors’s Success Draws Attention, Silent Majority Speaks and Herding Cats).

The SEC’s guidance reiterated the current rules, not changing them.

The trend, raising proxy advisory firms’ influence in corporate proxy issues, therefore, is likely to continue.

Click on the links below for the SEC Guidance and an article in the online magazine “FierceCFO”.

Click here to go to the SEC Guidance article.

Click here to go to the online magazine “FierceCFO” article.

The New Neutral

The New Neutral is the name for our near-term economic future according to William Gross, founder and Chief Investment Officer of PIMCO, one of the largest of investment funds.

He and his investment team pride themselves on discerning the big trends and avoiding herd mentality when plotting the course of PIMCO fund investments.

After prematurely calling the end of the era of interest rate declines and predicting a more rapid rebound in interest rates, Gross is now predicting a new trend, “The New Neutral”.  In this environment, he suggests the US economy is in for a period of market stability with moderate to low returns (broadly, bonds returning 3-4% and stocks 4-5%) with relatively lower volatility.

Of course, he points out that the US economy is subject to impacts from our major trading partners and specifically calls out the risk of Japan’s current economic policy.

While his reputation as an economic wizard has been tarnished, his predictions, in my view, still merit consideration.

Excerpt

In 2014, the tide may be turning again as demographics, fear of another Lehman, or just income-starved insurance companies and similarly structured liability-influenced institutions, reach for anything they can get. The era of income may be, at the margin, replacing the era of capital gains, despite artificially low current yields.

Click here to read the PIMCO article.

I admit, my posts predicting a slow growth environment were also premature. Click here.

US Supreme Court Maintains Securities Fraud Status Quo

The US Supreme Court has essentially maintained the status quo in corporate securities fraud litigation.

The Court had taken up for consideration a lower court case which overturned the 25 year precedent, set in Basic v Levinson that aids plaintiff’s counsel in obtaining class certification. (Click here for background on the issue and the case.)

Statistics show that once a class is certified, a high percentage of corporate defendants settle rather than go to trial.

Hopes were high among corporate executives and their legal advisers (potential “defendants”) that the Court would even the playing field by raising the bar which plaintiff’s counsel must meet to obtain class certification.

The defendants’ small victory is that the Court made uniform among the lower courts the procedure that defendants can challenge, at the class certification stage, a key assumption that fraudulent information provided by the defendants impacted the defendant’s stock price.

Click here for ReedSmith’s summary on this case.