Insider Trading Update: SEC Rules Coming

The SEC is expected this fall to issue Rules restricting the use of so-called Rule 10b5-1 “Plans,” which are used as trading safe harbors by executives and directors of public companies to permit trading even while they may possess material inside information.

Briefly, a Plan provides a program for permitted trades, buy or sell, based on pre-determined metrics: date, number of shares, price or other triggering events.  The theory is that the Plan runs automatically and thus the trader is not by definition using inside information.

The SEC effort is being informed by the SEC’s Investor Advisory Committee, which Committee has just made recommendations to the Commission.  These include a cooling off period of four months before trading can begin under a Plan, and a ban on multiple Plans for one person.

It is not clear whether the SEC will attack the ability to de facto alter a Plan by aborting its operation in certain defined circumstances; such alteration can render a Plan subject to inside information manipulation.  Plans are on the SEC’s own list of rulemaking priorities, driven by the 3-2 Democratic majority.

DEI in Corporate America–Perspectives

Corporate America treats DEI as a problem to be fixed, and often relies on DEI training as part of the process.  This approach was roundly criticised last week by a panel of corporate experts convened by the New England Chapter of the National Association of Corporate Directors, which posited that DEI rather should be framed as a “search for excellence.”

Directors should ask themselves: “what result do we want” rather than “how do we fix” what DEI addresses. How can a corporation create equity “at scale?”  Equity is not a zero sum game, where the winners’ existence must imply that there are losers also.  These recommended concepts must be invented in the marketplace as they have not been taught in business schools.

What does “diversity” mean?  Companies should not try to define it, as these lists inevitably center on one or more cohorts: race, sex, economics, color, country of origin, gender, etc.  Diversity should be approached holistically: it means human beings and how do we advance all of them as a group?

DEI is a cultural effort, not a response to “events.”  Reputational risk to enterprises is of great and of  growing importance.  Institutional investors are driving home this point. There is a delta between promises and progress today– why?  Should not DEI be placed into the purview of a “Risk Committee” along with all other potential pitfalls?

SPAC Attack

SPACs are under attack in litigation file in New York Federal Court, claiming these entities should be closely regulated as investment companies under the ’40 Act.  SPACs typically invest their funds in market securities during they year or more they seek a company to acquire.

Not surprisingly, about sixty law firms (many of great size, all with SPAC business) have fought back, asserting that these investments are incidental and transitory and that the ’40 Act was not designed for the SPAC model (no doubt true as eighty years ago there were no SPACs).   SPACs seem to be relying on an implicit “grace period” which is nowhere specified in law or regulation.

If a SPAC is an investment company then the “promote” kept by the founders (typically 20% of the deal) would be illegal as to amount and form under the law; indeed, one plaintiff in current litigation so alleges.

It seems unlikely that these suits will prevail, particularly as the SEC has failed to object to SPACs conceptually for many years, and since there are today hundreds of funded SPACs on the hunt for an acquisition.

Parenthetically, the Singapore Stock Exchange just last week adopted rules that will permit SPACs to be traded, subject to mandatory quality standards which echo better US practice.

SEC Hits Brokers and Advisers on Cyber

The SEC supervises brokers and investment advisers and people in those professions know that periodic compliance visits can get very granular.  We all also know that the SEC is deeply interested in protecting the investing public.

Latest SEC move: at end of August, the Commission levied hundreds of thousands of dollars of fines against brokerages and advisory firms based on failure to maintain cyber security over customer data. Client emails were hacked though on the cloud.  The Commission also has complained against at least one firm where there was no hack but a failure to maintain robust data security.

Although rules covering cyber for brokers and advisers are old and general, they do require written policies (SEC) and periodic review (Advisers Act).  Clearly the SEC has broad general supervisory powers, so it is clear that they do not think there is a need for more rule-making as part of its enforcement tool kit.

Anti-Trust Regulation: Change in the Rules

Assuming the parties to a deal are of sufficient size prior to the deal itself, the FTC requires filing and clearance of all M&A deals above a certain size under the infamous Hart-Scott-Rodino Act.  That size of deal trigger is now $92M (it is updated regularly, which means it is increased).

It has long been established that the size of a deal can be reduced as follows: from the deal consideration in an acquisition of equity, if any debt of the target to third parties is paid at closing then the amount of that payment is deducted from the deal size.

Last week, advice from the FTC website has reversed this practice if the selling equity holders will benefit from the retirement of that debt.   While one can appreciate a certain symmetry to cash deals (where assumption of target debt always was counted in determining deal size), parties to equity M&A transactions now will need to calculate FTC reporting requirements utilizing this new metric.

Harvard Study: Failure of Corporations to Benefit Stakeholders

On the second anniversary of the signing by many major corporations of the Business Roundtable Statement calling on business to operate for the benefit of all stakeholders, the Harvard Governance Program accuses corporate America of, in effect, intending to con the American public.

The Roundtable Statement admonishes companies to work to benefit not only shareholders but also customers, employees, suppliers and communities.  After a survey of over 130 signatory companies, the Harvard Program concludes that “signatory companies did not intend or expect their endorsement to be followed by changes in how they treat stakeholders.”  Details of study results follow.

Signatory CEOs did not bring the signing to their boards, evidence of lack of serious intent.

Almost 100 signatories updated their governance guidelines and failed to elevate status of stakeholders other than shareholders.

Forty shareholder proxy proposals were presented to various companies based on the Statement and every one of them was opposed by managements.

Corporate by-laws continue to emphasize shareholder return.

About 85% of proxy statements do not even mention joining the Statement.

Director compensation remains tied to shareholder return and typically is paid in company stock.  No comp program links director compensation with other stakeholder interests.

The Program’s report ascribes all sorts of cynical motives to what it seemingly considers to be management duplicity.  Putting aside the accuracy of such accusations, it is hard to parse the results of the Program’s report with the professed growing corporate focus on ESG, DEI, climate change, etc.  The Harvard study was headed by Professor Lucien Bebchuk, long a sharp critic of corporate management, who expressed suspicion at the beginning of the favorable press surrounding the Roundtable pronouncement based in part on lack of Board involvement.

Radio Silence for Two Weeks

I am off to install my youngest in Reed College in Portland, OR and thus it is unlikely I will post for the next two weeks; this hiatus is temporary and I look forward to again posting on corporate, SEC and other legal matters on my return.  Meanwhile, I wish a pleasant and vacation-ful August to all.

SEC: NASDAQ, DEI A-OK

Last Friday the SEC approved changes to the NASDAQ Rules designed to push NASDAQ-listed companies down the DEI path to more diverse boards of directors.  (Sorry about the headline above, by the way; I could not resist.)

The Rule changes are simple: companies must disclose self-identified gender, racial and LGBTQ+ board data, and to explain why, if true, a given company does not have at least two “Diverse” board members (meaning at least one female and one minority or LGBTQ+ person).  The Rules also make available a complimentary recruiting service to assist members with hiring compliance.

Two aspects of this action are interesting.

Although the intent of the Rule is admirable, how did the SEC parse approval within the context of the Commission’s obligation to monitor rules of SROs (self-regulatory organizations, such as exchanges) as part of regulating securities market operations.?  Without express statutory mandate, the Commission reverted to a list of consistent, if not specific, analogies: prevent fraud, prevent manipulation, promote just trade, perfect a free and open market, protect investors and the public interest, encourage equitable fees for members and  issuer companies and investors. Such tenuous bases indicate the degree to which the SEC over the years has broadly interpreted its regulatory mandate within the content of social trends and pressure.

Second, without negative implication, I am intrigued with the conflation and designation of desired board member categories; the designation assumes sufficient management value and contribution from only two members off a robust list of those societal populations under greatest mistreatment, an assumption which  must be questionable.  Indeed, a better argument could be made, by asking why every category is not in fact included, as each category is disadvantaged but in different ways for different reasons.  Is it assumed that each woman, together with a given member from a very diverse list of other disadvantaged populations, will inject sufficient sensitivity as to be beneficial in board management.  Perhaps pressing for a greater number of new board members was thought to be a bridge too far?

Since I adopt the view that the desire for the perfect should not prevent achieving the good, I have no quarrel with the SEC from a policy standpoint.  But it is interesting that we reached this point based on unclear statutory authority and with a very generalized assumption about human behavior.

SEC Upends its Own Whistleblower Regulations

The SEC hands out millions of dollars each year to individuals who alert the Commission (or sometimes other regulatory agencies) of ultimately proven securities fraud.  During the Trump years, the Commission underwent formal procedures under the Administrative Procedures Act (“APA”) to limit these awards in two regards: to give discretion to the SEC to reduce the formula pay-outs in very large cases, and to decline to provide pay-outs where other agencies have similar whistleblower payment programs.

The new Democratic majority intends to reverse these limitations, but also has this week announced that in the interim they will ignore the rules revisions.  This announcement has been criticized by the two remaining Trump-appointed (and now minority) Commissioners as bad policy, creating uncertainty and the precedent that the marketplace can no longer rely on formally adopted rules as governing regulatory action.

However correct that the majority may be, in claiming that the Trump era changes weakened the attractiveness of blowing the whistle against wrongdoing, the dissenting Trump Commissioners seen correct in their criticism.  The APA process for rulemaking is statutory, robust and designed to create knowable, actionable and clear guidance.  Politics aside, seems to me that “the law is the law.”  The SEC always has been politicized at its core, at least at the Commissioner level, where the party in the White House names 3 of the 5 members; but the job of the staff is to enforce what’s on the books today, not what the majority party intends to do in the future.

The professional qualifications of the minority Commissioners are excellent, and so is their argument against the recent policy statement abandoning the law.

Finally, although I readily confess that there is no substantive link between the above legal observations and famous lines by Lauren Bacall in the classic film To Have and Have Not.  I confess that every time “whistleblowing” arises in a professional context, those lines spring inappropriately to mind: “If you want me, all you have to do is whistle. … You know how to whistle, don’t you, Harry?  You just put your lips together and blow.”

Suing Victims over Cyber Attacks

Monday of this week, in a Texas Federal court, SolarWinds sought to have dismissed a shareholder suit alleging that the company tricked investors by not disclosing in advance company vulnerability to cyber attacks of its software product Orion.  Plaintiffs claimed SolarWinds misled investors by not warning them of the risk; the company replied that there was no suggestion of an intent to mislead, nor of recklessness (which would be the legal equivalent of intent), pointing out that the SolarWinds hack has been generally recognized as highly sophisticated.

The company does make a general observation about the direction of litigation that is worthy of note: any time something bad happens to a public company, a class action is filed against the company for a securities law misstatement harming stockholders.

Interestingly, plaintiffs also claimed against two PE firms because those firms held a large stake in SolarWinds equity.  Seemingly, the PE firms were major investors but not involved in operations.  We do not know all the facts, but mere stockholdings, however large the holdings, better not create liability for actions of the company (absent actual exercise of management control) or else the legal separation between investors and the company in which they invest will be destroyed by mere stock ownership.  That is not the current law,  today the “veil is not pierced” by stock ownership alone, and any change in the law in this regard would have massive market, litigation and insurance consequences.

Finally, while law firms that bring shareholder derivative suits under the securities laws are the traffic cops of the market-place and sometimes do uncover problematic action, the addition of ancillary defendants in litigation, to increase the chances of monetary recovery even on a nuisance suit basis, is unfortunate.