DOUG’S NOTE

Evolution of the General Counsel—A TerraLex Report

TerraLex recently published The General Counsel Excellence Report 2017, which tracks the continuing evolution of the role of corporate general counsel to encompass important nontraditional areas of focus and responsibilities. TerraLex, a referral network of more than 150 law firms (including Parker Poe) in more than 100 countries, sponsored similar surveys in 2013 and 2015.

The 31-page report makes for interesting reading. For example, it notes that even the GC’s title is changing, with 45 percent of respondents describing their role as “General Counsel” (slightly down from 2015) while more than 20 percent use titles like “Head of Legal,” “Group Head of Legal,” “Head of Legal & Regulatory Affairs” or even “General Counsel, Director of M&A, Strategy and Risk.” The report states that “[i]t is clear … that the exact role of the general counsel is becoming an increasingly difficult one to define.”

Also interesting is the general counsel’s perception of his or her role within the company. According to the report:

“General counsel thought it most important that they were a stakeholder in business decisions rather than just managing the legal department – just over 60 percent gave this answer the most important or next most important score compared with 45 percent who voted for managing the legal department. Being the conscience of the business was also a popular answer and this idea of the legal officer as moral guardian of the corporate entity is a theme which runs through the survey and the interviews. “

This leads to the report’s observations regarding the issues that general counsel find most concerning. Not surprisingly, “regulation and compliance” remains the frontrunner and by an increasingly wide margin, rising from 60 percent to 70 percent from 2015 to 2017. This is entirely consistent with, and no doubt the result of, investor and regulator focus on the importance of effective compliance programs and risk management, as well as increasing recognition among boards of directors and senior executives that they bear substantive oversight responsibility for such matters. In other words, it has become widely recognized that compliance and risk management can no longer be relegated to out-of-sight silos within the company controlled solely by midlevel personnel. (See this article in Corporate Compliance Insights.)

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The NYC Comptroller and Pension Funds Boardroom Accountability Project 2.0

Board composition is increasingly at the forefront of governance activists’ focus and initiatives. A recent, high-profile example of this comes from New York City Comptroller Scott M. Stringer and the New York City Pension Funds via their Boardroom Accountability Project 2.0. This initiative builds on their 2014 initiative and, according to their press release, is intended to “ratchet up the pressure on some of the biggest companies in the world to make their boards more diverse, independent, and climate-competent, so that they are in a position to deliver better long-term returns for investors.”

The campaign directly targets the boards of 151 U.S. companies, calling on them to “disclose the race and gender of their directors, along with board members’ skills, in a standardized ‘matrix’ format and to enter into a dialogue regarding their board’s ‘refreshment’ process.” They believe this will push boards to be more diverse and independent. The targeted companies include “139 that enacted proxy access after receiving a proposal from the New York City Pension Funds, and 12 at which the pension funds’ proposal received majority shareowner support in 2017, but have yet to enact the reform.”

Comptroller Stringer and the Funds blame the “persistent lack of diversity on corporate boards” on a nomination and election process “that is effectively controlled by the existing board — and as a result, more akin to a coronation.” They cite PwC’s 2016 Annual Corporate Directors Survey as reporting that 87% of directors rely on board member recommendations to recruit new directors, while only 18% consider investor recommendations.

Fundamentally, they believe that shareowners “need to know the race and gender of a company’s directors” and “need to see how each director’s skills and experience fits into the company’s overall strategy, where there are gaps, and understand how boards are refreshed.” This information would be released every year as a “board matrix,” thereby allowing shareowners “to identify boards that are ill-suited to protect their investments due to a lack of diversity or relevant expertise” and “to engage companies to recommend qualified, diverse, and independent candidates.” Their recommended standardized matrix would name each director and then indicate via checkmark whether he or she meets a laundry list of “Skills & Experience” and “Demographic Background” criteria, including tenure, sexual orientation, gender, age, and race/ethnicity.

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Pay Ratio Disclosures are an Employee-Relations Opportunity … Really

Most companies are now devoting substantial resources and effort to ensuring compliance with the SEC’s new rules requiring disclosure of the ratio of the CEO’s and median employee’s respective annual total compensation. Because the disclosure is required for fiscal years beginning on or after January 1, 2017, calendar-year-end companies must include it in their upcoming proxy statements.

As the number crunching and parsing of new SEC disclosure guidance (see Doug’s Notes here and here) begins to take shape, these companies will soon get a sense of the magnitude of their ratio and, therefore, of any concerns it may raise. Discussions are also taking place regarding the extent to which companies can, or should, provide supplemental proxy disclosure that adds explanatory context to the mandated ratio disclosures.

In the course of all of that analysis, it would be a shame to overlook “silver-lining” opportunities to engaging in proactive, positive dialogue with the company’s various stakeholders. And the most important constituency at most companies is the employees.

Pay ratio disclosures may be disconcerting to employees for a variety of reasons. Most obviously, while the CEO’s total compensation has long been public information, its stark numerical contrast to median employee compensation could be expected to generate negative emotional responses from some members of the workforce. Less obvious, but perhaps as disconcerting, may be the realization by half of your employees that they are compensated below the median. This realization could be further exacerbated by negative comparisons to peer company compensation medians and ratios, which will likewise now be public.

Failure to proactively address these issues could result in a disgruntled subset of employees, which could in turn lead to lost productivity , a general decline in workforce morale or even employee departures to seemingly higher-paying competitors. Therefore, it would be wise to proactively coordinate with the company’s HR department and internal communications personnel to fashion a tailored communication plan designed to at least minimize potential negative consequences.

But why not also turn this into an opportunity to highlight positives about the company? Rather than being defensive or dismissive, focus on communicating the company’s commitment to its stated values, culture of fairness, efforts to incentivize the proper employee conduct and the enterprise-wide benefits of attracting and retaining exceptional senior leadership. If communications are handled correctly, most employees will appreciate the company’s willingness to be transparent and forthcoming about a topic of such sensitivity (even if they don’t agree fully with everything you say).

Communication techniques will vary from company to company, depending on the company’s existing culture, size, industry, locations, complexity and other factors. Here are some tips for analyzing your own situation: read more…

New SEC Pay Ratio Disclosure Guidance

As everyone knows by now, the SEC amended Item 402 of Regulation S-K, as required by the Dodd-Frank Act, to state that all companies required to provide executive compensation disclosure under Item 402(c) of Regulation S-K must also provide new executive compensation disclosure regarding:

  • the median of annual total compensation of all employees,
  • the annual total compensation of the CEO, and
  • the ratio of those two amounts.

Companies must provide the pay ratio disclosure for their first fiscal year beginning on or after January 1, 2017.

There had been a chance, albeit dwindling, that the new rules might somehow be repealed or delayed before the 2018 proxy season. Recent statements by the SEC staff, followed by last week’s barrage of staff guidance on pay ratio disclosure, now make it clear that the rules will go into effect as written.

The new guidance.

A September 21 interpretive release “… reflects the feedback the SEC has received and encourages companies to use the flexibility incorporated in our prior rulemaking to reduce costs of compliance,” according to SEC Chairman Jay Clayton. As summarized in the accompanying press release, the guidance:

  • States the SEC’s views on the use of reasonable estimates, assumptions and methodologies, and statistical sampling permitted by the rule;
  • Clarifies that a company may use appropriate existing internal records, such as tax or payroll records, in determinations about the inclusion of non-U.S. employees and in identifying the median employee; and
  • Provides guidance as to when a company may use widely recognized tests to determine whether its workers are employees for purposes of the rule.

Of particular note is the staff’s articulation of a reassuringly low standard for determining whether a company is in compliance with the new rules:

“… if a registrant uses reasonable estimates, assumptions or methodologies, the pay ratio and related disclosure that results from such use would not provide the basis for Commission enforcement action unless the disclosure was made or reaffirmed without a reasonable basis or was provided other than in good faith.” (emphasis added)

Then, in separate supplemental guidance, the staff addresses various questions and provides illustrative examples regarding how reasonable estimates and statistical methodologies may be used to satisfy the rule’s requirements. Here is a brief summary derived from, or quoting the language of, the guidance itself: read more…

Join Us at the Fall 2017 GRC Forum, featuring NC Attorney General Josh Stein

You recently received an email invitation to our upcoming Governance, Risk & Compliance Forum. The GRC Forum is a half-day, interactive event devoted specifically to the issues faced by risk and compliance personnel at companies in all industries and at all stages of GRC development.

The Fall 2017 session will be held on Thursday, September 28 at the Duke Mansion in Charlotte. We’ll start with coffee and breakfast at 8:15 a.m. The three presentations will run from 9:00 a.m. until noon. There is no charge for attending, and attendees are expected to be approved for compliance certification and continuing legal education credit.

Topics to be covered.

The GRC Forum and related GRC Blog generally address topics related to assessing, enhancing and maintaining an enterprise-wide governance, risk and compliance function. Specific topics to be discussed at this upcoming Fall 2017 session will include:

  • Session I:  Update on the current state of corporate social responsibility, including CSR reporting and corporate America’s response to the Trump administration’s withdrawal from the Paris climate accord.
  • Session II:  A discussion of cybersecurity breach response policies and plans, including background on current data privacy and security laws in the U.S., the EU’s new comprehensive data protection law and the EU Network Infrastructure Security Directive, critical components of a comprehensive plan, and practical tips on how to create, draft, train on and implement a plan.
  • Session III:  Remarks by North Carolina Attorney General Josh Stein on compliance and public protection, followed by Q&A.

Who should attend?

GRC touches a variety of professionals, including:

  • compliance officers
  • risk management officers
  • boards of directors
  • legal departments
  • CFOs, internal auditors and other finance personnel
  • human resource directors
  • investor relations and public communications personnel

Companies of all sizes and in all industries are invited.

If you haven’t already, please click here to sign up. I hope to see you there.

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An Exhibit Hyperlink Reminder

This past spring, the SEC issued final rules designed to make it easier to access and retrieve exhibits to company filings through the use of hyperlinks. For most companies, this new requirement becomes effective for filings made on or after September 1, 2017, which means it’s time to be sure you are ready. (Smaller reporting companies and non-accelerated filers using ASCII format have until September 1, 2018 to comply.)

Item 601 of Regulation S-K, which requires companies to include an exhibit index that lists each exhibit included with the filing, now requires that each exhibit to Forms S-1, S-3, S-4 and S-8 (among others) under the Securities Act and Forms 10, 10-K, 10-Q and 8-K (among others) under the Exchange Act include an active hyperlink to the particular document on EDGAR. This applies whether or not the exhibit is incorporated by reference.

For periodic reports, an active hyperlink must be included for each exhibit listed when the report is filed. For registration statements, a hyperlink must be included in the initial filing and in each amendment (pre-effective and post-effective) thereafter.

The new rules exclude a short list of filings, including among others:

  • XBRL exhibits, and
  • exhibits that were filed on paper before EDGAR filings became mandatory, have not been re-filed electronically and are incorporated by reference.

Companies must submit all affected registration statements and reports in HyperText Markup Language (HTML) format, which is not generally a problem since that is the format already used by almost everyone. One potential glitch arises, however, if your exhibit list includes an old document that was filed in American Standard Code for Information Interchange (ASCII) format as part of a single large document (which is how things were done in olden days). Absent express guidance from the SEC staff, your alternatives are to link back to the single document while specifically referencing the relevant exhibit contained therein or to re-file the exhibit with the current document.

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The SEC Approves More Amendments to NYSE’s Notice Requirements

Back in September 2015, the New York Stock Exchange amended the NYSE Listed Company Manual to:

  • expand the pre-market hours during which NYSE-listed companies must provide prior notice of material news,
  • expand the circumstances under which NYSE may halt trading, and
  • provide guidance related to the release of material news after the close of trading.

Then last week NYSE did it again, this time to require listed companies to give NYSE’s Market Watch team at least 10 minutes prior notice before making any public announcement, including announcements made outside of normal trading hours (9:30 a.m. to 4:00 p.m. Eastern time), regarding:

  • any dividend or stock distribution required by NYSE Listed Company Manual Section 204.12, and
  • the fixing of a dividend or stock distribution record date.

As a practical matter, this means that companies must now give NYSE notice of a dividend or stock distribution 10 minutes before the announcement, rather than simultaneously with the announcement, as before. The SEC deems this important because, among other things, the record date determines (a) when the stock will trade ex-dividend and (b) the requirements regarding brokers’ cutoff dates for determining full and fractional shares.

Requiring notice 10 minutes before such announcements regardless of the time of day (rather than just during normal trading hours) allows NYSE to address any concerns with the content of the announcement and reduce the possibility of investor confusion if the disseminated information is inaccurate or misleading.

The SEC noted in a footnote (perhaps hoping that NYSE’s staff wouldn’t notice) that NYSE Market Watch will be available “at all times” (day or night) to review the announcement and will contact the listed company “immediately” if there is a problem.

The amended rule became effective on August 14.

Other expanded market notification information.

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Revisiting Rule 10b5-1 Trading Plans

I am sometimes surprised by the number of insiders who trade in their company’s stock outside of Rule 10b5-1 trading plans. It is often said, with some accuracy, that executive officers, directors and other insiders always possess material nonpublic information (MNPI) due to the very nature of their jobs. And in fact, many insiders are able to actually create MNPI merely by deciding to initiate a strategic change or direct a financial decision. If that is true, or at least arguable under the glare of 20/20 hindsight, then trading outside of a trading plan is a dangerous proposition.

The question, then, is, “Why take the chance?” A trading plan provides an easily implemented affirmative defense against insider trading claims, and courts have consistently deferred to valid trading plans, even under questionable circumstances. Furthermore, it is well-known that the SEC is vigorously pursuing insider trading violations of all shapes and sizes. (See this Doug’s Note.) For that matter, why doesn’t every company require that its insiders trade only under a trading plan?

The elements of a trading plan.

An enforceable trading plan must satisfy the following requirements:

  • The insider was not aware of any MNPI at the time it was adopted.
  • It specifies a non-discretionary trading method.
  • The insider may not exercise any subsequent influence over how, when or whether to make purchases or sales.
  • The insider must enter into the plan in good faith and not as part of a plan or scheme to evade the insider trading prohibitions.

That sounds easy, so what’s the problem?

Honestly, I’m not sure. Some companies may feel that prohibiting trades outside of a plan is unduly restrictive, i.e., an insider should be able to bear the risk if he or she wants to. But that mindset ignores the harsh consequences of an insider trading investigation by the SEC, including legal fees, management time and distraction and reputational damage, even if the insider is ultimately exonerated.

Sometimes companies reason that if the insider truly always possess MNPI by virtue of his or her job (see above), then the requirement that the trading plan be adopted only in the absence of MNPI can never be satisfied anyway. That concern is easily allayed by imposing a holding period between the date of plan adoption and the first trade date. At a minimum, there should be a least one intervening earnings release, and most companies impose a 90-day delay for that reason. Some companies mandate a 30-day delay, but that only partially accomplishes the goal. Less than 30 days is dangerous.

Then there’s the question of trading plan disclosure, which is not required by SEC rule. Some companies are perfectly happy to voluntarily disclose the adoption of a trading plan in Item 8 of Form 8-K. Others worry that disclosure (whether in a Form 8-K or as a footnote to the related Form 4, or both) draws too much attention to an event that would otherwise have minimal fanfare, making it better to avoid trading plans altogether. That reasoning seems to minimize the potential liability of trading outside of a plan and to overlook the benefits of disclosure. For example, disclosure gives the company the opportunity to provide color around the reasons for the insider’s trade and manage the message, rather than letting the market speculate as to the insider’s motivations. It also enhances market perception of the company’s commitment to transparency.

A few bonus tips.

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An Unexpected Free Cash Flow Comment from the SEC Staff

It is surprising how much attention free cash flow continues to generate in SEC disclosures. After all, it’s been used for decades as a non-GAAP financial measure. In fact, back in 2003, the SEC’s non-GAAP financial measure FAQs stated that companies should be “cautious” when using it, noting that it does not have a uniform definition and might inappropriately imply that it represents residual cash flow available for discretionary expenditures.

Fast forward to the much-scrutinized 2016 non-GAAP financial measures C&DIs, which essentially repeated the old free cash flow FAQ, though now companies need only be “aware” of, rather than “cautious” about, the absence of a uniform definition. This softer language presumably reflects the staff’s general softening toward non-GAAP measures, which it now sees as helpful disclosure so long as it’s done properly.

Then unexpectedly (at least to me), Monsanto Company received the following comment in a February letter that appears to have resulted from the staff’s routine review of Monsanto’s Form 10-K:

“We note you define free cash flow as the total of net cash provided or required by operating activities and net cash provided or required by investing activities. Pursuant to Question No. 102.07 of the Staff’s Compliance & Disclosure Interpretations (“C&DIs”) on Non-GAAP Financial Measures, issued May 17, 2016, please advise of your consideration given to redefining this measure or its computation as the typical calculation of free cash flow (i.e., cash flows from operating activities less capital expenditures). Please provide us with any proposed revisions to your disclosure of free cash flow to be included in future filings.”

The comment seems inconsistent with the staff’s position that free cash flow does not have a uniform definition and that companies need simply provide a “clear description of how this measure is calculated.” The staff expresses no issue with the clarity of Monsanto’s description, but rather just doesn’t seem to like the definition itself.

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Virtual Coins are ‘Securities’ After All

On July 25, the SEC issued a Rule 21(a) investigative report concluding that the sun rises in the east and sets in the west. No, wait, that’s not right. The report actually concluded that tokens offered by an unincorporated “virtual organization” known as The DAO (presumably short for “decentralized autonomous organization”) in what is known as an “initial coin offering” (ICO) were securities and, therefore, are subject to the federal securities laws.

Despite loads of cool-sounding techno-jargon in The DAO’s marketing materials and multiple breathless articles by mainstream media touting ICOs as the next big thing, the SEC had no trouble slotting The DAO tokens into the U.S. Supreme Court’s 71-year-old Howey definition of a “security,” which should come as no surprise to anyone.

What’s going on?

ICO’s have sprung out of nowhere in the past couple of years to rival traditional venture capital in the amount of funds raised for early stage technology projects. In fact, Shawn Langlois, social media editor of MarketWatch, said in a recent column that “the total crypto market cap now stands at a whopping $87 billion.”

Basically, promotors sell virtual coins in ICOs in exchange for U.S. currency or some other form of virtual currency (for example, bitcoin or ether). The ICO proceeds are then ostensibly used to fund development of the company’s digital platform, software or other technology project. The virtual coins typically can be resold in a secondary market on virtual currency exchanges.

Not surprisingly, the SEC says in its related Investor Bulletin that “some promoters … may lead buyers of the virtual coins … to expect a return for their investment or to participate in a share of the returns provided by the project.” And therein lies the problem.

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