SEC Chair nominee Jay Clayton’s March 23rd hearing before the Senate Banking Committee covered much of the expected ground. In a series of responses designed to avoid controversy, Clayton repeatedly returned to the three core mandates of the SEC – capital formation, investor protection and efficient markets – as touchstones for his future leadership of the Commission, should he be confirmed. Beyond these general areas, Clayton offered few specifics or signals as to how he might steer the Commission during his term as Chair. He did, however, discuss concerns about growing companies finding the U.S. public markets unattractive due to the burdens of being a public company. Continue Reading
Late last year, the SEC issued two orders after finding companies violated its whistleblower rules due to certain language in their severance agreements, including clauses that prohibit employees from disparaging the companies in communications with regulators unless authorized in writing or otherwise required by law. See our client memo > Continue Reading
The SEC’s 2016 report to Congress on its whistleblower program announced that it paid out $57 million in fiscal 2016, more than the total amount awarded during the entire first five years of the program. Since its inception, 35 whistleblowers have received more than $130 million by helping originate or contribute to enforcement actions that resulted in $584 million in financial sanctions. The number of tips have increased yearly, with more than 4,000 in fiscal 2016.
The SEC recently found that EY violated the auditor independence rules in two cases based on the audit partners’ close personal relationships with members of the issuer finance teams. In addition to a specific list of prohibitions, the SEC rules on auditor independence includes a catch-all that an accountant is not independent if a reasonable investor with knowledge of all relevant facts and circumstances would conclude that the accountant is not capable of exercising objective and impartial judgment. We focus here on the consequences of those cases for issuers, including additional inquiries that audit firms may pose to management regarding their knowledge of any personal relationships between their employees and the engagement team. Continue Reading
We have issued a memo on the recent SEC staff interpretations about the use of non-GAAP measures by companies, including the practical implication of the guidance and the effect on companies that disclose those types of metrics to investors in presentations, earnings releases and SEC filings.
According to an analysis by Bloomberg, since 2011, 5 of the biggest U.S. activist funds have nominated women just 7 times in seeking 174 board seats. Bloomberg examined Elliot Management, Icahn Associates, Pershing Square, Third Point and Value Act.
Not one of Icahn Associates’ 42 nominees to fill 94 board seats in the past five years was a woman. Pershing Square nominated more women than any of the other funds, in recommending 3 women for 23 directorships. At companies in the S&P 500 index, 26% of seats were filled by women over the same period.
Some members of Congress are urging the SEC to push companies to go further through public disclosure. Continue Reading
At SEC Speaks 2016, the SEC Enforcement Division indicated that they are interested in investigating public companies’ failure to disclose cyber breaches.
No such case has been brought yet. The SEC’s enforcement actions on cyber incidents have been limited to the failure of registered firms to have policies and procedures to protect customer information accounts and hackers who steal material non-public information to gain market advantages.
The Staff recognizes that a company’s first response to a cyber intrusion is to assess the situation and minimize the damage. In their view, a critical part of this process is contacting law enforcement. They have heard anecdotally that companies may be reluctant to report cyber breaches to law enforcement because they do not want to be subject to possible government investigations. Continue Reading
On July 1, 2015, the SEC proposed a rule implementing Section 954 of the Dodd-Frank Act. The proposed rule directs the stock exchanges to adopt listing standards that would require listed issuers to adopt and comply with a written clawback policy to recover any excess incentive-based compensation erroneously paid to any current or former executive officer because of material non-compliance with financial reporting requirements that resulted in a financial restatement.
At an open meeting yesterday, the Commission voted to propose broad rules directing the national exchanges and associations to establish listing standards requiring companies to develop and implement clawback policies. We will issue a client memo on the proposal shortly. The key provisions are complex and are set forth below, based on the fact sheet released by the SEC:
Companies covered: all listed companies, including foreign private issuers, emerging growth companies and controlled companies
Applicable executives: current and former executive officers modeled on Section 16 of the Exchange Act
Incentive-based compensation subject to recovery: any incentive-based compensation that is granted, earned or vested, based wholly or in part on the attainment of any “financial reporting measure”
Financial reporting measure: measures based on the accounting principles used in preparing a company’s financial statements, any measures derived wholly or in part from such financial information, and stock price and total shareholder return
No-fault clawback trigger: The trigger for a clawback is an accounting restatement to correct a material error. Continue Reading
The SEC, which has recently been investigating workplace agreements out of concern that they may impede whistleblowing activity protected by the Dodd-Frank Act, announced yesterday its first enforcement action against a company related to the use of restrictive language in confidentiality agreements. Companies should be mindful of this type of enforcement action and take the necessary steps to review and revise their own various agreements addressing confidentiality.
According to a recent speech by Chair White, one of the key decision points in nearly every enforcement action is who will be charged as a defendant. She disputed the notion that the SEC fails to charge individuals enough, since a recent internal analysis by the SEC staff showed that individuals were charged in 83% of SEC actions since the 2011 fiscal year.
She indicated that one new approach will be to start using Section 20(b) of the Exchange Act, which imposes primary liability on a person who does anything “by means of any other person” that would be unlawful for that person to do on his or her own. Continue Reading
The Chesapeake Climate Action Network (CCAN) has taken the novel approach of filing a letter with the SEC Directors at the Division of Enforcement and the Division of Corporation Finance, alleging that Dominion Midstream, a Dominion Resources affiliate, did not provide sufficient information about several environmental and related risks surrounding its Dominion Cove Point LNG Terminal export project in its registration statement filed with the SEC offering its limited partnership interests. The offering has not yet occurred. Betty Moy Huber, co-head of Davis Polk’s Environmental Group, guides us through these unique proceedings and the possible implications.
What does CCAN allege is missing from the registration statement in its letter to the SEC? Continue Reading
The SEC staff recently issued a report, as mandated under the JOBS Act, on its review of the disclosure provisions under Regulation S-K. Chair White and Commissioner Gallagher had previously referred to the report in their speeches criticizing the existing disclosure regime and alluding to possible changes.
While over 100 pages, the bulk of the report is a historical accounting of the evolution of the current requirements. The staff recommendations do not begin until page 92 and comprise less than 12% of the entire document. According to the report, the overarching issues to be addressed include the possibility of principle-based disclosure rather than increasing static imperatives, scaling disclosure in accordance with different categories of issuers, a framework that distinguishes between “core” disclosure vs. Continue Reading
A former investor relations professional at First Solar agreed to pay $50,000 to settle the SEC’s charges that he violated Regulation FD. According to the SEC order, the IR officer attended an investor conference on September 13, 2011 with the company’s then-CEO. At that time, the CEO indicated publicly that the company would receive three loan guarantees of $4.5 billion from the U.S. Department of Energy, which would allow the company to obtain low-cost financing for key projects. The guarantees were conditioned on the company’s meeting several requirements before the end of September, and analysts had been speculating about whether the company would be able to satisfy these requirements. Continue Reading
The end of summer is being marked by expectations of a busy month. First, several rules come into effect. On September 9, swap clearing is required under the Dodd-Frank Act unless an exception is available. Public companies often use swaps to mitigate risks, such as interest rate or foreign currency fluctuations. A company would be eligible for an exception to the clearing and trade execution requirements if it is not a financial entity, uses the particular swap to hedge or mitigate commercial risk, and notifies the CFTC as to how it meets its financial obligations associated with entering into non-cleared swaps. Continue Reading
Three whistleblowers were awarded a total of 15% of the money that the SEC will ultimately collect from its enforcement action against Locust Offshore Management LLC and its CEO, according to an order issued by the SEC on June 12. No immediate payments were forthcoming since the SEC has not yet collected on any of the $7.5 million judgment in disgorgement and penalties. The whistleblowers are entitled to seek a portion of the $800,000 Justice Department has managed to collect so far on a related action.
The award stems from a 2011 lawsuit against the hedge fund alleging fraud. Four claimants filed for whistleblower awards after a U.S. Continue Reading
President Obama has named Kara Stein, Democrat, and Michael Piwowar, Republican as nominees for SEC Commissioners. Both are currently Senate aides.
Ms. Stein is currently legal counsel and senior policy advisor to Senator Jack Reed, who is a senior member of the Senate Banking Committee, and would replace Commissioner Elisse Walter. If confirmed, her term would expire in June 2017.
Mr. Piwowar is an aide to Senator Mike Crapo and the Banking Committees Republican chief economist. He is being nominated to replace Commissioner Troy Paredes with a term to expire in June 2018 if confirmed. Continue Reading
A year after opening its new whistleblower office, the SEC announced today that it had paid out $50,000 to an unidentified whistleblower, the first such award under Dodd-Frank. In its press release, the SEC indicated that the award represents the maximum percentage allowed, or 30%, of the amount collected in an enforcement action. The whistleblower reportedly provided documents and other information that led to a court ordering more than $1 million in sanctions. Additional sanctions will increase the payout to the whistleblower. A second individual seeking an award for the same matter was denied since the information provided did not lead to or significantly contribute to the enforcement action. Continue Reading