1) SEC Announces Program to Facilitate Analysis of Corporate Financial Data
On December 30th, the SEC issued this press release that announced the launch of a pilot program to facilitate investor analysis and comparisons of public company financial statement data through “structured data sets.”
2) PwC Releases Report on Director and Investor Views on Trends Shaping Governance and Board of the Future
The report compares the results of two surveys conducted in the summer, one of which was an investor survey and the other was a director survey. This new report cites notable differences in opinion, such as:
Investors are much more skeptical than directors about impediments to replacing underperforming directors.
- Investors are more skeptical about overcoming board diversity challenges. 85% of investors believe there are impediments to increasing gender diversity compared to just 14% of directors.
- Board composition and performance are receiving increased scrutiny. Both investors and directors sense this trend and express even more concern about lower levels of voting support for director nominees than last year.
- 99% of directors say they understand their company’s risk appetite at least moderately well, compared to only 61% of investors who believe they do.
3) ISS Issues 20 FAQs on “Equity Plan Scorecard”
On December 22nd, ISS issued 20 FAQs on its new Equity Plan Scorecard
4) ISS Issues 9 FAQs on Independent Chair Policy
On December 22nd, ISS issued 9 FAQs on its new “Independent Chair Policy.”
5) NYSE Proposes to Delist Companies for Late 10-Q Filings
The NYSE proposed to amend its continued listing requirements relating to the late filing of a company’s annual report with the SEC (set forth in Section 802.01E or the Late Filer Rule) of the Listed Company Manual. As amended, the Late Filer Rule will (i) expand the rule to impose a maximum period within which a company must file a late quarterly report on Form 10-Q in order to maintain its listing and (ii) clarify the NYSE’s treatment of companies whose annual or quarterly reports are defective at the time of filing or become defective at some subsequent date.
6) NASAA Unveils Online Filing System for State Form D Filings
On December 15th, the North American Securities Administrators Association, Inc. (NASAA) unveiled its Electronic Filing Depository (EFD) for use in connection with state Form D filings in Rule 506 offerings.
7) Recent Insider Trading Decision Makes It Harder to Bring Cases in 2nd Circuit
On December 10th, the Court of Appeals for the Second Circuit issued a decision dismissing indictments against two defendants in United States v. Newman. The Court ruled that the government must prove that a remote tippee knows of the personal benefit received by a tipper in exchange for disclosing nonpublic information and the Court held that the government must prove that the personal benefit is “of some consequence.” As a result, in this case the benefits alleged by the government were not sufficient to support a conviction.
8) NASDAQ Listing Fee Increase and Structure Change
A new fee structure and increased fee rates for the Nasdaq Global Select, Global and Capital Markets will become effective on January 1, 2015, subject to several transition provisions. All companies that list securities on these Nasdaq markets after January 1, 2015 will be subject to the all-inclusive annual fee, subject to transitional relief for companies that apply to list on Nasdaq prior to January 1, 2015 but complete their listing after that date. Effective January 1, 2018, all Nasdaq-listed companies will be subject to the all-inclusive annual fee.
Companies that are listed on the Nasdaq Global Select, Global or Capital Markets before January 1, 2015 and want to opt into the all-inclusive annual listing fee structure for 2015 must complete and file the opt-in form available through the NASDAQ OMX Listing Center not later than December 31, 2014. Companies should be aware that this election is irrevocable. Companies that do not opt into the all-inclusive annual fee will continue to be billed under the current annual fee structure for 2015, and will also continue to be subject to additional fees for listing additional shares, corporate actions and other Nasdaq regulatory fees, as applicable. Nasdaq-listed companies should compare their current and anticipated listing and other fees under the current fee structure (using the new fee rates) with the fees payable under the new all-inclusive fee structure to determine whether they might benefit from opting into the all-inclusive fee structure. Further information is available in the Nasdaq Continued Listing Guide.
9) Federal Court Rules Against Corp Fin No-Action Response in Shareholder Proposal Context
The U.S. District Court for the District of Delaware determined that Wal-Mart should not have excluded a shareholder proposal from its 2014 proxy statement, even after the Company receivied a favorable SEC no-action letter. The proposed related to an amendment to the Compensation, Nominating and Governance Committee charter to add oversight of implementation of policies that would evaluate whether Wal-Mart should sell a product that endangers public safety, has the substantial potential to impair Wal-Mart’s reputation or would be considered offensive to the values that are integral to the Wal-Mart’s brand. Trinity wanted the committee to consider whether or not the company should sell guns equipped with magazines holding more than 10 rounds of ammunition.
10) SEC Grants Whole Foods No-Action Request
The SEC granted Whole Foods no-action request yesterday allowing the company can exclude a 3%/3-year shareholder proposal and instead place the company’s own 9%/5-year proposal on the ballot. In allowing exclusion, the SEC relied on the Rule 14a-8(i)(9) counter-proposal basis.
11) House Passes Disclosure Modernization and Simplification Act
HR 4569 directs the SEC to study ways to simplify financial reporting for small and emerging growth companies and would permit public companies to include a summary page of all material information in 10-Ks.
12) House Passes SBIC Advisers Relief Act
HR 4200 amends ’40 Act to reduce regulation of advisers to Small Business Investment Companies, which are professionally-managed investment funds that finance small businesses.