CII Analysis of Board Evaluation Disclosure

CII has published an update to its analysis of disclosure on board evaluations in proxy statements, highlighting as “Seven Indicators of Strength” a wish list of information.

The report contains multiple qualifications and statements designed to reassure companies, including that they are not expected to reveal any specific details about the results of the evaluations, but instead the disclosure should focus on the process for continued improvement.  In addition, the seven benchmarks selected in the report are not intended to be prescriptive, as they are observations of what CII believes investors find to be useful information based on CII’s review of the proxy statements of more than “100 prominent companies”.
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Credit Ratings Agencies Increasing their Focus on ESG Risks

Fitch Ratings announced on Monday that it has launched a new integrated scoring system that shows how environmental, social and governance (ESG) factors, such as climate change, human rights and labor issues, impact individual credit rating decisions.

Its ESG Relevance Scores are sector-based and entity-specific. Fitch has started with over 1,400 non-financial corporate ratings, which it is initially making publicly available at www.fitchratings.com/site/esg.  In contrast to other third-party ESG ratings available in the market today, Fitch states that these scores do not reflect judgments as to whether an entity has positive or negative ESG practices, but rather discloses how an environmental, social and/or governance issue specific to the entity influences its current credit rating. 
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SEC Continues to Target Companies for Financial Reporting Failures

At the very end of the year, the SEC announced the entry of an administrative order instituting cease-and-desist proceedings in connection with financial reporting at a major rental car company, including earnings guidance.

According to the order, “under persistent pressure to meet budgets, and to generate opportunities to help close company-wide budget gaps or revenue shortfalls,” the company did not comply with GAAP in 2012 in accounting for contingencies, particularly in determining when to increase the allowance for or the amount to write-off related to recovering money to offset expenses for vehicle damage.  The methodology was changed several times in 2013 for determining the allowance or the amounts of aged debt to be written off, each assuming more favorable collection results than historical data reflected and with favorable impact to the company’s financial statements.  
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SEC Finds Violation of “Equal or Greater Prominence” Requirement of the Non-GAAP Disclosure Rules

The SEC instituted a cease-and-desist proceeding in a fairly straightforward enforcement action that nonetheless emphasizes the importance of the requirement that GAAP measures must be provided with “equal or greater prominence” when a company discloses non-GAAP measures.

The SEC found that a company provided non-GAAP financial measures, such as adjusted EBITDA, adjusted net income and free cash flow before special items, without giving equal or greater prominence to the comparable GAAP measures.

In the headline for the FY 2017 earnings release, the company presented its adjusted EBITDA for the fiscal year and stated that it was up 8% year-over-year, without mentioning its net income or loss (the comparable GAAP financial measure) in the headline.
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SEC Adopts Hedging Policy Disclosure Rules and Requests Public Comment on Quarterly Reporting

The SEC yesterday announced that it has adopted the Dodd-Frank hedging policy disclosure rules and issued a request for comment on quarterly reporting.  We will provide additional information in the form of client memos, but preliminary information based on the fact sheets published includes:

Hedging Rules.  Compliance is required in proxy statements during fiscal years beginning on or after July 1, 2019.  Companies must disclose any practices or policies it has adopted about the ability of its employees (including officers) or directors to buy securities or other financial instruments, or otherwise engage in transactions, that hedge or offset, or are designed to hedge or offset, any decrease in the market value of equity securities granted as compensation, or held directly or indirectly by the employee or director. 
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Major Institutional Investors Comment on, and Disagree About, the Proxy Process

The SEC’s solicitation of comments on the proxy process has led to more than 150 public letters.  While almost no companies sent in letters under their own names, investors have submitted the bulk of the commentary, including nearly all of the familiar groups of shareholder proponents.  Insight from a few major institutional investors follows, with diverging views about shareholder proposals and oversight of proxy advisory firms.

Don’t change, or do change, ownership or resubmission thresholds for shareholder proposals, and related rules.

“As such, we would view any action to limit some shareholders’ rights to file proposals as an action to limit all shareholders’ ability to fully consider all risks and opportunities of their investment.
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Clayton Cites Shareholder Proposal and Proxy Advisory Firm Reforms as Priority Items for the SEC

In a wide ranging speech yesterday on SEC rulemaking, Chairman Clayton stated that after disregarding the more “aspirational” approach of past administrations, the SEC’s changed its approach to tailoring the 2018 Regulatory Agenda to the initiatives that the agency could reasonably complete in the next 12 months.  This led to the Commission advancing 23 of the 26 rules cited in the 2018 agenda.

Among the many significant initiatives for 2019 that the Chairman listed as priority items for the Commission included the proxy process, with an indication that he is interested in reforms, as he addressed:

Reviewing the ownership and resubmission thresholds for shareholder proposals.  
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Nearly All S&P 500 Companies Provide Sustainability Reporting

With funding from the Investor Responsibility Research Institute (IRR), the Sustainable Investment Institute (Si2) reviewed the current state of companies’ sustainability reporting and found that although most S&P companies gave sustainability information, they followed a wide range of practices.  The websites of 92% of S&P 500 companies included disclosure on sustainability, but only 395 companies (78%) issued reports.  Within those reports, 357 companies provide environmental metrics and 320, social data.  Other findings include:

Most reports can be downloaded, although companies often provide dynamic website information.  Discrete reports in downloadable time-bound form were favored by 68% of companies, updated annually by 93% of those companies, while 9% of companies overall offered web-only information that could change at any time. 
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SEC to Consider Request for Comment on Earnings Releases and Quarterly Reports

The SEC issued a Sunshine Act Notice for an open meeting next Wednesday, December 5, where they will consider whether to issue a Request for Comment on the nature and content of quarterly reports and earnings releases issued by reporting companies.  The open meeting will start at 10:00 a.m. (ET) and will be webcast.

As reported by media, President Trump asked the SEC in August to study the possibility of requiring less frequent earnings reporting.  It has also been reported that Chairman Clayton may be inclined to explore reducing the demands on companies with revenues under $1 billion, as part of the SEC’s initiatives to ease burdens on smaller reporting companies.
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A Say-on-Pay Update — Plus Strategies for Responding to a Negative Recommendation by a Proxy Advisory Firm

The proxy season is just around the corner for calendar year public companies. Ahead of the season, two major proxy advisory firms, Institutional Shareholder Services (ISS) and Glass Lewis, recently released their 2019 policy updates to provide guidance on how they will make recommendations on companies’ “say-on-pay” vote. Although a non-binding vote, performing poorly on a say-on-pay vote is not only disheartening, but can impact shareholder votes on election of directors (particularly compensation committee members), result in greater scrutiny of CEO performance, and require management and compensation committee members to expend significant time and resources to address concerns reflected by the vote.
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