Life Science Update

A week ago, panelists at an ambitious program mounted by the Boston Bar Association took a broad look at major trends in life science deals and risks.  Some interesting highlights follow.

Did COVID hurt or help life science dealmaking?  Both; people became more accessible via Zoom, but the lack of personal contact impeded ability to benefit from establishing personal rapport and trust.  Bottom line, deal flow did not slow down though deals were harder to make.

Lack of scientific conferences hurt.  Ability to discuss presentations with companies impeded recognition of deal synergy.

Obvious intense interest in bio-tech drew capital, but also fear of regulation of drug profits and of FDA regulation and of heightened anti-trust focus dampened interest in the eyes of some.  So did “frothy” price premiums being sought during a “hot” market.  Some of the froth came from VCs raising larger funds, as well as SPAC interest (see immediately prior post).

Near the end of program, a deeper visit to SPAC-land.  Life science SPACs were said to be a small percentage of SPAC activity.  75% of all life science SPACs are today trading within 5% up or down from issuance price.  It was suggested that the best SPAC promoters are serial sponsors because they have a list of reliable investors.

Interesting technical discussion of how to frame patent claims, particularly with the tension between maximizing patent protection today with specific claims vs. seeking protection over time in face of rapid innovation.  Patents are written today, examined in three years, litigated in ten years.  Do you articulate your claims narrowly or reach for protection by making functional claims?

Whack-a-SPAC

We all recall the game Whack-a-Mole.  That is what is happening to the SPAC marketplace.  Aside from questions in the marketplace as to the advisability of using this model as an investment vehicle or a method of going public, seems the SEC is focusing on significant disclosure issues.

In December, the SEC noted the possible conflicts of interest between public investors and those persons active in the formation or management of a SPAC; the SEC cannot bar the typical model of SPAC formation, but it sure can make SPACs provide sharp focus on what the SEC sees as excessive promoter profit and thus investor risk.

SPACs sometimes are promoted by celebrity endorsements or clients.  In March the SEC warned investors (in a formal “Alert”)  that a famous name does not a good investment make.

Last month the Acting Director of SEC Corp Fin took a swipe at the common perception that “going public” through a SPAC was easier than a regular IPO, by announcing that the Commission would treat SPAC acquisitions the same way as IPOs, subject to the “full panoply” of applicable law.

It is unclear if the current SPAC fever will abate; much can be said in favor of the model, affording curated investment opportunities to the retail investor and liquidity in the marketplace, as well as enforced guidance to emerging entities in complying with the world of Regulation that comes with a public market security.  But however intense the SPAC market becomes, it is not going away; and, apparently, neither is the SEC.

Securities Law Developments– ESG and Climate

The Congress, the SEC and NASAA have joined the chorus of investors and ESG-focused funds in seeking much greater disclosure of the entire suite of ESG concerns.  A renewed pressure from government is not surprising given the politics of the current Administration.

The SEC has had guidance since 2010 relative to climate change, aimed at causing reporting companies to share risk and response perceptions.  Trump chair Clayton, at the very end of his tenure last December, questioned the sufficiency of current regulation, and this February the Acting SEC Chair stated that it was the SEC’s duty to provide disclosure.  Of course, the general overlay of the disclosure regime is that disclose must be made of any material risk, even if it is neither topical nor specifically addressed in SEC Rules or guidance.  Company failures became more focused based on litigation against Exxon finding material misstatements in connection with the impact of climate on expected corporate action.

Reportedly (Jim Hamilton’s World of Securities Regulation),  ESG Funds took in over $51B last year, so this is not a trivial segment of the marketplace, and the SEC does not even have guidance on what “ESG” encompasses.  An SEC task force has been established to determine ESG policy, and it seems inevitable that proposed guidance, or specific Rule-making, will follow.

The House of Representatives, echoing NASAA proposals to the SEC, has  pending a bill (H.R. 1277) which would compel registered issuers to disclose gender, racial, ethnic and veteran status of  senior management and boards.  Claims abound that diversity at the top results in better economic performance.  While I have not seen what I consider to be clear statistical support for this proposition (it is possible for example that the company with better general management also has a propensity for diversity, which may be admirable but not causal of better economic performance), it is quite possible we will see SEC action in this arena also.

The SEC these days seems willing to set policy through disclosure regulation. I note that the SEC has an Office of Minority and Women Inclusion, and the Bill would encourage this Office to propose “best practices.”  (I do not suggest that these developments are not positive, only that they reflect an activism that has been absent historically.)

Securities Law Developments– Easier Private Offering Rules

On March 15, rules adopted by the SEC during the Trump administration became effective, loosening access to crowd-funding, expanding access to public offerings under less rigorous standards pursuant to SEC’s Regulation A, permitting companies to shift quickly from one financing to the next to accelerate receipt of investment funds, and permitting companies to hold pre-offering discussions with investors in order to “test the waters” for their financing plans.

Crowdfunding: Since 2012, small companies could offer shares to small investors, in small individual amounts, without registering with the SEC, if they did so utilizing an organized service platform that screened investors and required the generation of relatively modest disclosures to investors.  This March, the total possible to raise under this process increased approximately five-fold to $5M, and the amount that sophisticated (“accredited”) investors could provide individually was increased.

Regulation A: This process of obtaining SEC approval for the issuance of immediately tradeable shares, with fewer disclosure requirements and a faster process than filing a full registration with the SEC, started out covering only small offerings of $5M; in 2015 the cap was increased to $50M and in March to $75M.  Crowd-funding offerings also were included in liberalized rules permitting discussions with investors prior to actually filing papers with the SEC.

Testing the Waters: Companies choosing between whether to raise capital through Regulation A or through crowdfunding are now both permitted to speak with investors prior to starting an offering, including through use of social media.

Integration: Historically, the SEC has restricted companies from making in effect continuous offerings of securities under different exemptions from registration, in the belief that a company continuously using exemptions and collecting in the aggregate substantial sums was simply skirting the registration requirements for public offerings. This resulted in a series of difficult regulations not understood by most companies.  While companies even today are advised to consult with counsel in this area, as of March it became possible to effect different offerings with a separation of as few and 30 days.

These changes reflect a couple of realities: the high expense and delay of a full public registration creating practical problems for smaller enterprises; and, the continuing recognition that innovation is a driver of progress and employment.  These realities need to be parsed against the prevalence of fraud in securities offerings, which remains a huge problem (and which can be measured by following the SEC website which documents daily the numerous outrageous frauds being committed in the marketplace).

Securities Law Developments– an Introduction

The political currents that have roiled US society often are echoed in the policy choices made by the Securities and Exchange Commission.  I do not recall a time when partisanship was not part of the SEC culture, and the combination of sharpening political dialog and the SEC structure of affording two of the five directorship seats to the party not holding the Oval Office has led to some interesting and contentious rule-making.

Followers of the SEC have the ability to observe these contrary currents by examining the “legal press” over the last couple of month.  Loosening of the restrictions on raising private capital, adopted by a 3-2 Republican majority during the Trump administration, became effective last month.  At the same time, the current SEC is embracing, and being asked further to embrace, a heightened disclosure agenda which has run, historically, contrary to Republican efforts to encourage capital formation in support of American free enterprise.

It may be that this yin-yang is a beneficial dynamic.  Each “camp” advances its “agenda” but must keep a weather eye fixed on the opposing viewpoint, thereby rubbing the most controversial edges off their respective proposals.  It is hard to make an argument against reasoned rules preventing misinformation and other rules promoting full disclosure of risk, and the last few months show promise of a happy, if controversial, medium in each arena.

The next two blog posts will explore:

first, the expansion of capital formation tools that became effective March 15 by reason of actions taken by the Clayton Commission prior to the change in Federal Administration; and

second, the movement towards broader embracing of robust “ESG” disclosure.

Expensing R&D

The significant 2017 Tax Act benefit allowing R&D expenses to be deducted in the year incurred, rather than amortized over many years, terminates for years starting January 1, 2022, unless Congress amends that sunset provision.

And for companies which have farmed out R&D offshore, the write-off period in extended from 5 to 15 years.

The supposition behind the original legislation, aside from keeping jobs inside the US, was that future economic power would come through R&D and that the economy and US would better off if that R&D was plugged into US-based enterprises for commercialization.

What can business do in the circumstances?  Political activity of course could solve the problem.  For a temporary hedge, or indeed if there is no relief then a permanent hedge, comes from the obvious: speed up 2021 R&D, carefully account so that something that can be classified as a business expense does not leak into the R&D column, and concentrate as much as possible on US-based research.

Only changing the current law to extend the credit addresses the root issue: long-term best cash management through immediate write-offs of research costs.  And notwithstanding speed of write-off, it is of course possible that the better mouse-trap is being designed off-shore, and that the best net economic decision is to ignore geography in R&D; a significant invention is going to be more cash-positive than an R&D write-off time-line.  Thus the best solution addresses both preserving the one-year write-off and eliminating any distinction between  US tax treatment of R&D based on geography.

It is one thing to keep physical production on-shore, one can make an economic analysis about the cost-benefit ratio in that case.  Innovation is not the same as rolling steel.

Personal Note: New Poetry Book

Today please forgive a personal note; I try to keep my posts on a wholly professional level, which means mostly law, sometimes government, and (in years, unlike this, when the Red Sox field a professional baseball club) baseball.

Your friendly neighborhood electronic bookstore (Amazon, Barnes and Noble)n ow carries my third book of poetry, entitled OBLIGATORY COVID CHAPBOOK.  A chapbook is a trade term for a short book of poetry written around a theme; and, you can of course guess the theme of this one.  Just log on and enter my name or the name of the book,  and this book should pop up.  (If you have a problem just email me and I can get a copy to you.)

Although the theme of this book is no doubt deeply depressing, I hope that it helps put into perspective our commonly shared experience, and permits better processing of what is likely (hopefully) the most trying period of our respective lives. I would appreciate your ordering a copy of this volume and, if you find it favorable, a complimentary post on the vendor’s site is always greatly appreciated.

And to all of you, survivors: this one’s for you.

Best, Steve

Federal Ban on Non-Comps?

President Biden has announced that he will work with Congress to “eliminate all noncompete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets.”  In late February, Senators and Representatives introduced a bill to ban all non-comps except in acquisitions and partnership dissolutions.

Business people are well aware of the historical debate over non-comps, which have slowly fallen out of favor in some jurisdictions (including a near-ban in California and a sharp retrenchment in Massachusetts).  Without repeating all the arguments, what can we expect to see in the future?  Below, some speculations:

Big tech often has spoken about its need to protect the technology that made it big, a large employer and the bringer of modern science to the economy and to the entire population.  Big tech is under attack today from many quarters in many countries, not only in the US.  Will this mind-set also weaken the appeal of the big tech argument about needing non-comps?

If the American economy continues to move away from manufacture, would this trend place pressure on fostering start-ups which will replace other lost opportunities?  Will this broad societal trend lend support to a general perception that non-comps stifle start-ups which are the wave of the US’s future?

To the extent that non-comps become legally disfavored, enforcement of perceived rights of former employers will move to efforts to protect competitive advantage through enforcement of trade secret rights; we see this trend already under the Federal Defend Trade Secrets Act, which is premised on the almost unassailable legitimacy of claims of ownership rights by the businesses that invent a technology or process.  These are sometimes difficult cases, however; high requirements of proof, often involving technical matters of some subtlety.  Full-time employment for litigation attorneys?

Finally, there is substantive debate as to whether non-comps, on a net economic basis, actually do harm workers who sign them, rather than help them.  There are current claims, for example, that research shows that eliminating non-comps causes reduced employee compensation and satisfaction (putting aside impact on companies and innovation).

We put aside the logic of having the Federal Government act on this range of issues.  That is a wholly different debate.

 

ESG in Perspective

These past few years have been tidal, in the sense that ideas have become broadly perceived forces that sweep everyone standing on the beach up onto strange shores.  This is not to say that the phenomenon is bad — but it does create lack of clarity as to the path forward.

Enter the acting head of the SEC, Allison Herren Lee, who has signaled that the SEC is headed towards far more granular ESG disclosure than present regulations and practices elicit.  The reasons: investors have vastly increased interest in ESG, and the retail investor cannot get useful data from current practices.  This thinking is consistent with the Biden administration’s prompt reversal of Trump guidance designed to devalue attention to ESG in the investment of retirement funds.

Disclosure often does force substantive change, so in a sense the SEC is a strong tool for corporate change.  But that does not mean that the path forward is clear, even putting aside the view of supporters of the prior administration that ESG is not an important factor.

First, note that the pitch for better disclosure is couched in terms of aiding retail investors; they are of course not the primary market drivers.  Second, to the extent funds invest for the retail investor, they compete on performance metrics and thus the proposition that ESG assists the bottom line is put to the asset test by the market-place.  The ESG folks argue that ESG is better for the world and for profits.  It is hard to argue against the benefit to the world, but as to profits: that is a work in process as to whether profits are maximized in the longer run. (One can hope so, but by definition we cannot measure today the bottom lines in a decade.)  Third, as noted by Lee, funds often lend their shares and do not vote them at all when it comes to corporate meetings.

Shortly after the Business Roundtable call to ESG arms a couple of years ago, attempting to redefine the constituencies to which corporations should answer, the Harvard Governance Project sharply questioned whether that redefinition was going to get actual traction by action, as opposed to being just a PR-type thing to say.  Without having enough data to speak today as to whether the Crimson Guys were correct, there is no doubt but that enhanced disclosure will drive one of two results: palpable change in corporate action, or investor fear driving retrenchment from social policy and a return to current “total shareholder return” thinking.

NASDAQ Culture Wars

Should NASDAQ require disclosure of diversity on boards, or require such diversity?  Board diversity is mandated under California law in many instances, and same is true in several European countries.

Last December, NASDAQ asked the SEC to approve a rule requiring public disclosure for their listed companies, and requiring subsequent designation of up to two directors (one woman, one otherwise diverse).  Such proposal, somewhat softened as to timing by a February modification,  reflects much current thinking about both how our society works, and the benefit of diversity in governance.

This morning’s lawyer press reports the SEC has tabled for now any action on the NASDQ proposal.  This follows a letter sent to the SEC by twelve Republican members of the Senate Banking Committee, stating that the obligation of a company is to appoint the best board members and not be bound by a “narrowly defined” definition of diversity.

Here is the list of definitions of diverse candidates from the NASDAQ proposal; you be the judge if this list is “narrowly defined”:  a person who identifies as female; plus one person who self-identifies as either an underrepresented minority of LGBTQ+.”  Underrepresented= “Black or African American, Hispanic or Latinx, Asian, Native American or Alaska Native, Native Hawaiian or Pacific Islander or two or more races or ethnicities.”

Even if diverse boards were proven to provide better governance (there is such research available although to my mind it is not adjusted for certain variables, including that boards with diversity may simply have better non-diverse directors; intuitively, it does seem to me likely correct), should a governmentally constituted self-regulatory organization enforce that viewpoint based on current evidence? Any evidence?  If a board is under-performing this can be judged by corporate performance, without inquiring as to why the board is not delivering best leadership.

Of course, securities markets are all about information, and the disclosure of diversity clearly is valued data on the part of some investors, who can reach their own judgment as to impact of diversity on board quality.

Are the regulated securities markets the proper arena in which National government should address societal prejudice?  While I sympathize with the NASDAQ, and may harbor unkind suspicions about the Republican letter, this question seems to me legitimately open to debate.