DOUG’S NOTE

Sustainability Reporting After the Paris Climate Accord

It’s fair to say that President Trump’s June 1 announcement that the U.S. will withdraw from the Paris climate accord has been widely reported. It’s also fair to say that the announcement triggered a host of passionate reactions, positive and negative, around the world. Within corporate America, a number of high-profile corporations (for example, Apple, Disney, Facebook, General Electric, Google, Salesforce, Tesla and Twitter) pledged to continue their efforts to cut greenhouse gas emissions and adhere to the spirit of the accord.

This leads one to wonder whether withdrawal from the Paris climate accord might, per the law of unintended consequences, actually increase investor emphasis on corporate social responsibility (CSR) and the number of companies that voluntarily report their sustainability initiatives. It’s an intriguing possibility.

Momentum for sustainability reporting has been building for years. In fact, the vast majority of S&P 500 companies now publish some type of sustainability or CSR report, and disclosures have begun to appear in SEC filings, particularly proxy statements. Mid-size and smaller companies, lacking the resources of their larger brethren, have been slower to do so, though some have begun and others are giving it serious consideration. Increased pressure from institutional investors, employees and other stakeholders, now coupled with widespread concern over withdrawal from the accord, could tip the reporting balance, especially for companies in sustainability-sensitive industries or companies that otherwise want to send a certain message.

One challenge for all companies is to make sense out of the CSR reporting landscape. First of all, the terminology itself—sustainability, CSR, environmental, social and governance (ESG), and triple bottom line, to name a few—is confusingly ambiguous and overlapping. Fundamentally, it all speaks to a company’s commitment to certain aspects of non-traditional, long-term value creation and to a broader range of stakeholders.

read more…

Introducing a Fresh Perspective on Governance, Risk and Compliance

With the fifth anniversary of Doug’s Note fast approaching (and more than 250 posts and 250,000 reads in the rearview mirror), it seemed like a good time to consider where to go from here. Where, as it turns out, was to create a companion blog devoted to governance, risk and compliance, which are among the hottest issues in corporate America these days.

Parker Poe’s GRC Blog reflects the joint contributions of our GRC team, co-led by Jane Lewis-Raymond, former chief compliance officer and general counsel of a large public company, and by me. Together, we provide more than 50 years of experience counseling public and private companies of all shapes and sizes on compliance program design, risk assessment, enterprise risk management, crisis management, remediation and training.

Essential to the blog’s success are the contributions of our larger GRC team, which consists of attorneys whose practices focus on such key areas of corporate compliance as:

  • Anti-Bribery & Anti-Corruption
  • Antitrust & Consumer Protection
  • Criminal & Regulatory White Collar Compliance
  • Crisis Management
  • Cybersecurity & Data Privacy
  • Employment
  • Environmental
  • Government Contracting & False Claims Act Compliance
  • Immigration
  • SEC Reporting & Compliance
  • Tax
  • Trade Compliance

read more…

Brexit’s Impact on the U.S. Capital Markets

You may have heard by now that the U.K. plans to leave the European Union at some point in the next few years. Since the British voted back on June 23, 2016, there has been no shortage of learned analysis/rank speculation about Brexit’s future impact on the U.K. and EU economies and financial markets. Opinions range from dire to blasé, with reality likely to fall (as it is wont) somewhere in the middle.

One surprising consequence, however, may be Brexit’s impact on U.S. capital markets. In a recent Heard on the Street column in The Wall Street Journal, Paul J. Davies theorizes from London that post-Brexit EU companies may have no choice but to tap the U.S. capital markets to make up for less convenient access to U.K. investors. It’s an intriguing, and believable, hypothesis.

Mr. Davies notes that much of the capital used to fund business expansion comes from savings, mostly in the form of pension funds, insurance companies and investment funds. He cites statistics provided by the Financial Stability Board, Investment Company Institute, European Central Bank and OECD showing that eurozone savings total less than 150% of its total GDP, as compared to more than 250% of GDP in the U.K. and 240% of GDP in the U.S. He notes further that there currently is no single set of capital markets laws and standards within the EU, making it hard to raise capital simultaneously in several eurozone countries. Therefore, frequent or large eurozone issuers often turn to the U.K.’s massive capital markets. Post-Brexit, that may not be feasible. As a result, Mr. Davies says, EU companies may be far more inclined to access the U.S. capital markets, even if that means setting up overseas subsidiaries and satisfying U.S. reporting and other regulatory standards.

This is particularly interesting in light of the SEC’s current push to re-invigorate the U.S. IPO market. In fact, the SEC on May 10 co-hosted the SEC-NYU Dialogue on Securities Market Regulation: Reviving the U.S. IPO Market. In his opening remarks, Commissioner Michael S. Piwowar first noted that the numerous benefits of IPOs to the U.S. economy “cannot be overstated.” He then said:

“between 30 percent and 50 percent of worldwide IPOs occurred in the United States during the 1990s. … In the last 15 years, however, the reduction in IPO activity has been dramatic … despite the fact that there has been no downward trend in the creation of new companies over the same period. … Strikingly, the fraction of worldwide IPOs occurring on U.S. markets fell below 10 percent between 2007 and 2011.”

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Thwarting Shareholder Activism Through Engagement

As the 2017 proxy season draws to a close for most companies, it is obvious that shareholder activism remains alive and well, though the actual number of public activist campaigns appears to have tapered off slightly as compared to recent years. Activism takes many forms, ranging from takeover proxy battles to proxy access proposals to single-issue social welfare proposals. Particularly noteworthy is an apparent trend among institutional investors to target small and mid-size companies, perhaps believing (perhaps correctly) that these companies are ill-prepared to resist their forays.

Companies have a wide array of defensive techniques at their disposal, depending on the nature of the activist’s approach, one of which is effective shareholder engagement. The good news is that more and more institutions are welcoming, and even encouraging, engagement with their portfolio companies. And while small and mid-size companies still sometimes struggle to get the attention of major institutions, this has become less problematic now that shareholder engagement is standard practice in corporate America.

Although many of the governance benefits of shareholder engagement are widely known, often overlooked is its ability to thwart shareholder activism. Better communication between the company and its major shareholders reduces misunderstandings about management’s strategy or the reasons behind its latest moves. Misunderstandings, in turn, may lead to activism, or a willingness to side with activists. Strong relationships with traditionally non-activist institutional shareholders (by far the larger percentage) have the ability to actually deter activist behavior before it even happens, or to nip it before it gains too much momentum.

For example, many activist shareholders own a relatively small percentage of the target company, particularly as compared to the well-known institutional behemoths. Therefore, the success of an activist’s initiative will depend, in part, on its ability to enlist the backing of multiple institutional shareholders. If it is obvious that the target company has open lines of communication with, and the general support of, its major shareholders, an activist is less likely to spend much energy launching a major campaign. Even social welfare proposals are less likely if an activist feels that they will fall largely on deaf ears. Furthermore, the influence of shareholder advisory services (SASs) continues to wane as companies have become more proactive in addressing SAS hot buttons and institutional shareholders have realized that SAS methodologies are not infallible.

The summer months are an excellent time to plan an effective shareholder engagement strategy for the fall. Most companies are fresh off of evaluating governance issues related to their proxy statements and may even have received shareholder overtures (formal or informal) during the proxy season. It’s the perfect time, therefore, to consider lessons learned and possible changes in approach. Summer will quickly become fall, which is the best time for actual engagement because institutional shareholders and SASs have more time to focus on your company. read more…

Compliance Program Oversight—The Board’s Overlooked Role

It’s long been axiomatic that an effective compliance program cannot exist without a strong ethics and compliance culture, which in turn requires the proper “tone from the top.” Yet, when most companies think “top,” they think C-suite. After all, tone starts with the CEO, right? And the C-suite is where you find many CCOs, or the executive to whom the CCO directly reports. Also, that’s where decisions are made about staffing the compliance function, allocating funds to implement the program and the host of other operational matters that determine whether the program is robust, minimalistic or non-existent. Often overlooked, however, is the crucial role of the board of directors.

Most directors have a general understanding that their fiduciary duties include compliance oversight. After all, it’s been more than 20 years since the Delaware Court of Chancery held in its famous Caremark decision that directors could, in certain circumstances, be determined to have breached their fiduciary duty and, therefore, be liable for company losses due to compliance program failures. Later, the Delaware Supreme Court in Stone v. Ritter held that a director’s failure to implement and oversee aspects of a compliance program could constitute an unindemnifiable breach of the duty of loyalty.

But how well do boards really understand their compliance program obligations? And to what extent do many boards devote time and effort to ensuring that their performance would pass muster under the microscope of hindsight when (not if) a compliance breach occurs? Is it enough for them to know that someone in the company has been given the title of CCO? Is it enough to allocate 30 minutes each year to listening to a compliance report from the CCO? How about 15 minutes per quarter? If asked, could each director describe how the company’s compliance program is structured and how it operates? Could they provide convincing assurances to a third party that it operates effectively?

The U.S. Sentencing Guidelines were promulgated by the U.S. Sentencing Commission in 1991 so that sanctions imposed on entities and individuals “will provide just punishment, adequate deterrence, and incentives for organizations to maintain internal mechanisms for preventing, detecting, and reporting criminal conduct.” While there are many important reasons to establish and maintain an effective compliance program beyond simply seeking to minimize criminal penalties, the Sentencing Guidelines are a key consideration in that effort. It is interesting, therefore, to note that Chapter 8 of the Sentencing Guidelines Manual states in plain English that:

“The organization’s governing authority shall be knowledgeable about the content and operation of the compliance and ethics program and shall exercise reasonable oversight with respect to the implementation and effectiveness of the compliance and ethics program.” read more…

A Compliance Calendar Tip: Update for T+2

A few weeks ago, the SEC finalized rules to shorten the standard settlement period for securities transactions from three business days (T+3) to two business days (T+2). Amended Exchange Act Rule 15c6-1(a) will prohibit a broker-dealer from entering into a contract for the purchase or sale of a security (subject to certain exceptions) that provides for payment of funds and delivery of securities later than two business days after the trade date (known as “T”), unless otherwise expressly agreed to by the parties at the time of the transaction. (See this Doug’s Note.)

The shift from T+3 to T+2 will be effective on September 5, 2017 to give everyone sufficient time to plan for, implement and test changes to the various systems, policies and procedures necessary for an orderly transition. Most of this preparation burden will, of course, fall on the direct participants in the securities trading industry. However, any company that pays regular cash dividends may need to adjust its annual compliance calendar to accommodate the new rule. read more…

Jay Clayton Confirmed as SEC Chairman

A new era at the SEC officially began last week when Jay Clayton was sworn in as the 32nd Chairman of the SEC. The Senate’s confirmation of Mr. Clayton on May 2nd by a 61 to 37 vote continued the Trump Administration’s practice of tapping well-known Wall Street professionals to serve in key government positions.

In this case, Mr. Clayton was a partner in the New York office of Sullivan & Cromwell, where according to the SEC’s news release he advised companies on “securities offerings, mergers and acquisitions, corporate governance and regulatory and enforcement proceedings.” These companies notably included Goldman Sachs, which has been a recurring theme with President Trump’s appointees. While his former ties will, no doubt, prevent Mr. Clayton from participating in SEC matters directly related to Goldman Sachs, his Wall Street background could well influence his perspective regarding the SEC’s future regulatory agenda.

That agenda is expected to shift toward re-analyzing the regulations implemented as a result of Dodd-Frank while Congress seeks to roll back many of that act’s statutory imperatives. For example, a bill currently making its way through the House, known as the Financial Choice Act, would among other things and according to its executive summary:

  • Provide an “off-ramp” from the post-Dodd-Frank supervisory regime and Basel III capital and liquidity standards for banking organizations that maintain high levels of capital, including easing restrictions on their ability to pay dividends and the maintenance of leverage ratios,
  • Repeal the designation of firms as “systematically important financial institutions” and modify the bankruptcy code to accommodate the failure of large, complex financial institutions, thereby eliminating Dodd-Frank’s “orderly liquidation authority,”
  • Repeal the Consumer Financial Protection Bureau’s authority to ban bank products or services that it deems “abusive” and to prohibit arbitration,
  • Impose enhanced penalties for financial fraud and self-dealing, promote greater transparency and accountability in the civil enforcement process and increase the maximum criminal fines for individuals and firms that engage in insider trading and other corrupt practices,
  • Repeal sections of Dodd-Frank, including the Volcker Rule, that limit capital formation,
  • Repeal the SEC’s authority to eliminate or restrict securities arbitration,
  • Permit all companies to communicate confidentially with the SEC pre-IPO, and
  • Prohibit regulation by the SEC of proxy access.

Of course, the Financial Choice Act will go through multiple revisions and may never actually become law, but it provides insight into the types of issues Congress is currently considering. read more…

Whistleblower Retaliation Remains in the SEC’s Crosshairs

Whistleblower tips and awards for securities law violations have increased dramatically over the past year, according to the staff of the SEC Enforcement Division’s Office of the Whistleblower. Also during that time, the Whistleblower Office has stepped up its vigilance over retaliation by companies against whistleblowers, imposing penalties against companies more frequently and expanding the scope of what constitutes illegal retaliation. Furthermore, there is so far no reason to think the new Trump Administration will seek to reverse this trend.

Direct retaliation can take many forms, most of which are recognizable by attentive management. Note, however, that certain less obvious behaviors may also be deemed retaliatory. For example, in one case an employee submitted a complaint about the company’s accounting practices through its internal procedures and to the SEC. When the SEC notified the company of its decision to investigate that complaint, the company was able to determine the whistleblower’s identity and revealed it in an internal email related to the investigation. The Fifth Circuit Court of Appeals in Halliburton, Inc. v. Administrative Review Board, United States Department of Labor concluded that illegal retaliation had occurred, stating that the “undesirable consequences” of being revealed to one’s colleagues as having accused them of fraud were “obvious.” (See this Doug’s Note.)

The SEC has also focused recently on indirect forms of illegal retaliation embedded in company policies and agreements. Provisions in such documents may inadvertently violate Rule 21F-17(a) under the Securities Exchange Act, which provides that:

“No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement….”

Essentially, language that prohibits an employee from disclosing confidential information without an express carve-out for reports to a government agency or that prohibits the recovery of monetary damages or awards may violate Rule 21F-17(a).

In addition, the SEC continues to expand the scope of its retaliation oversight. Examples include recent enforcement actions for retaliation where the whistleblower only reported internally, rather than to the SEC, and where the SEC elected not to pursue the company’s alleged securities law violation itself.

Penalties for violations are likely to include:

  • Hundreds of thousands of dollars of monetary fines,
  • Amending the relevant documents, and
  • Contacting all affected persons to inform them as to their revised rights.

Action Steps read more…

Securities Act and Exchange Act Form Revisions

In 2012, the Jumpstart Our Business Startups (JOBS) Act created a new category of companies known as “emerging growth companies (EGCs).” The JOBS Act also requires that, once every five years, the SEC indexes various EGC thresholds to reflect changes in the Consumer Price Index for All Urban Consumers. Last week, those new thresholds became effective upon their publication in the Federal Register.

The SEC simultaneously revised the cover pages of various Securities Act and Exchange Act forms used by virtually all public companies. Two new check boxes must now appear on the covers of:

  • Forms S-1, S-3, S-4, S-8, S-11 and the corresponding foreign private issuer “F” forms, and
  • Forms 10-K, 10-Q, 8-K and 10.

The new boxes must indicate:

  • Whether the person filing the report is an EGC, and
  • If so, whether the company has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.

The takeaways read more…

Conflict Minerals–What Just Happened and What Didn’t

The conflict minerals saga continues.

Background

In April 2014, the Court of Appeals for the D.C. Circuit in National Association of Manufacturers v. SEC held that the conflict minerals rule’s requirement that companies state that their products have not been found to be “DRC conflict free” violated the First Amendment. Subsequently, the SEC staff released guidance relieving issuers of the obligation to put those labels in their reports. The case was subsequently remanded to the district court for further consideration, and on August 18, 2015, the Court of Appeals reaffirmed its prior decision.

In response to these developments, Acting SEC Chairman Michael S. Piwowar issued a statement in January 2017 declaring that he had “directed the staff to reconsider whether the 2014 guidance on the conflict minerals rule is still appropriate and whether any additional relief is appropriate.” (See this Doug’s Note.)

Last week, the D.C. Circuit Court entered final judgment in the case, which upheld its prior rulings, and remanded it to the SEC for appropriate action.

This past Friday, the SEC issued a statement noting that the D.C. Circuit’s remand to the SEC has “presented significant issues for the Commission to address” and that several comments were received in response to Acting Chairman Piwowar’s January request. Therefore, “in light of the uncertainty regarding how the Commission will resolve those issues,” the Division of Corporation Finance will not recommend enforcement action if companies “only file disclosure under the provisions of paragraphs (a) and (b) of Item 1.01 of Form SD,” which conspicuously excludes the need to comply with paragraph (c).

What does this mean?

Companies that use conflict minerals that are necessary to the functionality or production of products manufactured (or contracted to be manufactured) still must comply with Item 1.01(a), which requires that they:

  • conduct a good faith reasonable country of origin inquiry (RCOI), and
  • file a Form SD with the SEC not later than May 31st.

Companies that conclude that their conflict minerals do not come from a covered country (or come from recycled or scrap materials) still must comply with the Item 1.01(b) requirement to disclose that conclusion on Form SD and on its website.

Paragraph (c) of Item 1.01, on the other hand, relates to the requirement to conduct due diligence on the source and chain of custody of conflict minerals and the need for a related independent private sector audit. If a company’s RCOI gives it reason to believe that its conflict minerals may have originated in a covered country (and are not from recycled or scrap materials), then it must conduct due diligence on the chain of custody and describe those efforts in a report attached to Form SD.

By eliminating the need to comply with Item 1.01(c), the SEC is saying that companies with conflict minerals do not have to:

  • trace the smelters or refiners used by suppliers,
  • provide the related chain of custody disclosures, or
  • have such disclosures audited by a third party.

What should you do? read more…