The Senate Committee on Banking, Housing and Urban Affairs held a hearing today on the nomination of Mary Jo White to chair the Securities and Exchange Commission. The Senators showed high support for White’s nomination and, contrary to expectation, asked few tough questions about her ties to Wall Street banks arising from her work at the law firm Debevoise & Plimpton LLP and other potential conflicts of interest.
Topic: Corporate Governance
U.S. Supreme Court Issues Two Significant Decisions Involving Securities Law Matters
On February 27, 2013, the U.S. Supreme Court issued opinions in two significant securities law cases, Gabelli v. Securities and Exchange Commission, 568 U.S. ___ (2013) and Amgen Inc., v. Connecticut Retirement Plans and Trust Funds, 568 U.S. ___ (2013). In the Gabelli decision the Court addressed the ability of the government to bring civil enforcement actions seeking civil penalties where the alleged fraudulent conduct occurred outside the five-year statute of limitations period. In the Amgen decision the Court addressed the class certification pleading requirements in security holder class action suits.
SEC Petitioned for Rulemaking to Accelerate 13F Filing Deadline
Last week, the NYSE Euronext, the Society of Corporate Secretaries and Governance Professionals, and the National Investor Relations Institute submitted a joint petition (available here) to the SEC, requesting that the Commission amend the beneficial ownership reporting rules under Section 13(f) of the Securities and Exchange Act of 1934, as amended. Fund managers subject to the 13(f) reporting requirements currently have until 45 days after the last day of each calendar quarter to file their Form 13F; the petition suggests that the time period be shortened to two business days.
SEC Approves PCAOB Auditing Standard No. 16 – Communications with Audit Committees
Yesterday, the SEC issued an order approving new Auditing Standard No. 16, Communications with Audit Committees (“AS 16”). AS 16 was previously approved by the Public Company Accounting Oversight Board (“PCAOB”) at an open meeting held on August 15, 2012. As we noted in our August client alert reporting on this new standard (available here), AS 16 retains most of the preexisting communication requirements, but also adds a number of new topics that the auditor must discuss with the audit committee and requires that the auditor seek specific responses from the audit committee when discussing certain topics. In response to comments, the SEC also clarified that the new standard will apply to audits of foreign private issuers. Significantly, the SEC concurred with the PCAOB that AS 16 will apply to emerging growth companies (“ECGs”) and will be effective for fiscal periods beginning on and after December 15, 2012.
ISS Offers Companies Opportunity to Update Peer Group Information; Action Required by December 21, 2012
As part of its 2013 Policy Updates, ISS is revising its methodology for determining the peer group used to perform its quantitative pay-for-performance evaluation. In determining a company’s peer group, ISS’s new methodology will incorporate information from companies’ self-selected pay comparison peer groups, as disclosed in the proxy statement. ISS recognizes that some companies may have modified their peer groups since their most recent disclosure or may intend to do so in the preparation of their 2013 proxy statements.
Departure of SEC Chairman Schapiro Creates Uncertainty Regarding Rules to Remove the General Solicitation Ban in Certain Private Offerings
On November 26, 2012, SEC Chairman Mary Schapiro announced that she will leave the Commission on Friday, December 14. Commissioner Elisse Walter will take over as Chairman.
On August 29, 2012, the SEC proposed rules to implement Section 201(a) of the JOBS Act, which requires the SEC to eliminate the prohibition against general solicitation and general advertising (together, “general solicitation”) in securities offerings conducted pursuant to Rule 506 of Regulation D under the Securities Act of 1933 (the “Securities Act”) and Rule 144A under the Securities Act. The Commission voted 4-1 to propose the rules, with Democratic Commissioner Aguilar as the lone dissent, but Commissioner Walter, also a Democrat, expressed reservations about the proposal in her opening statement at the Commission’s meeting. Republican Commissioners Gallagher and Paredes strongly supported the proposed rules.
2012 CPA-Zicklin Index of Corporate Political Accountability and Disclosure Released
The second annual CPA-Zicklin Index of Corporate Political Accountability and Disclosure was released yesterday by the Center for Political Accountability in conjunction with the Carol and Lawrence Zicklin Center for Business Ethics Research at The Wharton School of the University of Pennsylvania.
PCAOB Issues Release Providing Information for Audit Committees About its Inspection Process
On August 1, 2012, the Public Company Accounting Oversight Board (“PCAOB”) issued an informational report about its inspection process that is intended to serve as a guide for audit committees to learn more about the inspection process and offer questions the audit committee may ask the audit firm about its inspection results. The PCAOB issued the release with the goal of helping audit committees engage in more informative discussions with audit firms about the inspection process in order to aid audit committees in their oversight responsibilities related to financial reporting. PCAOB inspections of an audit firm examine both aspects of a limited number of audits performed by the firm (Part I of the inspection report) and elements of the firm’s overall system of quality control over its audit process (Part II of the inspection report, which is confidential). The release provides information about both parts of the PCAOB’s inspections and lists specific suggestions for initiating or enhancing discussions with audit firms about the inspection results.
SEC Approves NASDAQ Rule Change for Independent Directors
On July 19, 2012, the SEC approved a proposed change to NASDAQ’s rules regarding membership on a listed company’s audit, compensation and/or nominations committee. NASDAQ sought to modify an exception to its Rule 5605, which allows a non-independent director to serve on such committees “under exceptional and limited circumstances” for up to two years. The amendment provides an exception allowing a non-independent director to serve on a company’s audit, compensation and/or nominations committee, where the director has a family member serving as a non-executive employee of the company, so long as the listed company’s board concludes that the director’s membership on the relevant committee is “required by the best interest of the company and its shareholders.”The SEC’s release is available at here.
Business Roundtable Publishes Principles of Corporate Governance 2012
Business Roundtable (BRT) today issued its Principles of Corporate Governance 2012, which update its April 2010 principles. The principles were updated to “reflect the new circumstances of Dodd-Frank Wall Street Reform and Consumer Protection Act implementation and the continuing evolution of best practices.” The new Principles of Corporate Governance include important updates in five key areas: