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Clawbacks, Fiduciary Duties, and Block-Tagging (Part 4)

As we have previously noted on this Blog, XBRL and data tagging was, for awhile, at the forefront of SEC consideration then, after 2009, mostly disappeared.  That, however, changed.  The SEC's Investor Advisory Committee recommended increased using of tagging.  A number of commissioners have actively supported an increased use of structured data.  Few rules or proposals go forward without some evidence that tagging was at least considered.  

This increased focus on tagging could be seen in the clawback rule proposal (Rule 10D-1).  The provision would require certain specified disclosure in the proxy statement.  Specifically, the proxy statement would need to include, whenever there has been a triggering restatement, the amount of excess incentive based compensation, the amount still outstanding, and the identification of persons where the company decided not to persue the compensation, including the dollar amount of their excess incentive-based compensation.  

The proposal would require that the information be block-text tagged using XBRL.  Block-text tagging involves the tagging of narrative (in a block) rather than a specific financial term.  The proposal is significant for two reasons.  First, the SEC currently requires block text tagging in very narrow circumstances, limited mostly to footnotes in the financial statements  (although in some cases certain specific information within the footnote also must be tagged) and swap data repository financial resports.  See Exchange Act Release No. 74246 (Feb. 11, 2015) ("The Commission believes that block-text tags of complete footnotes and schedules in an SDR's financial reports will provide sufficient data structure for the Commission to assess and analyze effectively the SDR's financial and operational condition. Thus, the Commission believes that it is not necessary to impose additional costs on SDRs to provide detailed tagged footnotes and schedules in SDRs' financial reports.").  Second, the SEC currently does not require tagging of any kind in the proxy statement (although has proposed the tagging of the data in the proposed "pay versus performance" rule). 

The clawback proposal would, therefore, require block tagging of some of the narrative in the proxy statement. The pay versus performance proposal also would require some block tagging but in a much more limited fashion.  See Exchange Act Release No. 74835 (April 29, 2015) ("The proposal would require registrants to tag separately the values disclosed in the required table, and to separately block-text tag the disclosure of the relationship among the measures, the footnote disclosure of deductions and additions used to determine executive compensation actually paid, and the footnote disclosure regarding vesting date valuation assumptions.").  

The proposal, therefore, opens the door to block tagging of text in the body of an SEC filing, something that can be applied in other areas such as the MD&A.  See Exchange Act Release No. 59324 (Jan. 30, 2009) (noting commentator that supported "the application of interactive data format to MD&A because of a belief that interactive data format for MD&A disclosures would be more useful to investors than detailed tagging of the footnotes to the financial statements" and "recommended block tagging each section of the MD&A, with some level of detailed tagging for the numbers and tables.").   

Block text tagging would allow investors to use tools to extract this information in a cost effective manner, making the clawback process more transparent and facilitating comparisons among companies.  Proxy statements, in their current format, are largely unreadable.  See Remarks by Chair Schapiro, July 1, 2009 (" I have heard from both investors and companies a shared concern that our proxy statements are in danger of becoming unreadable, because there is so much information packed into them.").  Particularly for small investors, anything that allows information to be extracted and presented in a more accessible and informative manner will be an improvement and potentially increase the likelihood that these investors will return their proxy.

Commissioner Stein, in her public remarks, emphasized the importance of this step. 

  • In line with the Commission’s recent proposed rule on Pay Versus Performance, this proposal provides that disclosures will be tagged in eXtensible Business Reporting Language, or XBRL. As I have noted before, tagging increases comparability across companies. It also improves investors’ and other market participants’ ability to search for the information they care about.  I am pleased to see that we are continuing to include tagging in our proposed rules and are recognizing the importance of structured data going forward. 

Likewise, Commissioner Aguilar noted the proposed use of XBRL.  See Remarks by Commissioner Aguilar ("In addition, the required disclosures under these proposed rules would have to be provided in interactive data format using XBRL data tagging, making it easier for the SEC staff and investors to review.").  

Commissioner Piwowar, in his dissent, raised issues with the use of XBRL in the proxy statement.  As he stated: 

  • today’s proposal requires the disclosures to be coded and tagged in XBRL format as a separate exhibit.  This proposal, like pay versus performance, seeks to extend interactive data for proxy statements in a piece-meal fashion.  Would it be better to have a more comprehensive approach to providing interactive data contained in the proxy statement, as well as the non-financial section of the annual report on Form 10-K, rather than adding individual items in an ad hoc manner? 

Tagging the entire proxy statement would be beneficial.  Unfortunately, there is little likelihood such a possibility will surface anytime soon.  The Division of Corporation Finance is working on a disclosure effectiveness project but has focused on the periodic reports, with proxy disclosure relegated to a "later phase."   


Clawbacks, Fiduciary Duties, and Block-Tagging (Part 3)

Commissioner Piwowar dissented from the adoption of the proposed clawback rule.  His dissent provided some interesting insight into the internal process for the adoption of rules.  As he stated

  • The Commissioners received the original discussion sheet outlining the staff’s thinking exactly one year ago today, on July 1, 2014. We then received the first draft of the proposal, having been prepared by the staff and approved by the Chair’s office, at the end of May. 

By the time the final version was drafted, however, changes had been made.  As he noted:  "Up until two weeks ago, I was fully prepared to vote in favor of the proposal until significant changes were made that, in my opinion, were unsupportable."  Commissioner Piwowar had this to say about the final set of changes:  

  • There is a reason that a discussion sheet is circulated so far in advance – to allow for a deliberative process to occur among Commissioners and staff. Discussion sheets often generate reactions and new ideas that are incorporated into the draft proposal. For that reason, the ability to engage our economists, attorneys, accountants, examiners, and data specialists with additional lines of research and inquiry is critical to ensuring that the final work product represents the culmination of extensive deliberation and thought. Repeated instances of substantial eleventh-hour modifications by the Chair’s office deny the other Commissioners and the staff the benefits of such discussion.

Last minute changes are presumably more likely in a Commission with sharp divisions.  But in truth, the concern also arises from a well meaning but potentially counter productive statute, the Sunshine Act.  

Under the Sunshine Act, agencies are required to hold public meetings (except when in the public interest not to do so) when conducting agency business.  A meeting occurs anytime "at least the number of individual agency members required to take action on behalf of the agency" engage in deliberations that "result in the joint conduct or disposition of official agency business".  See 5 U.S. Code § 552b.   

As a result, anytime three commissioners at the SEC meet together to discuss proposed rules, they are arguably holding a "meeting" under the Sunshine Act.  Three or more commissioners at the SEC cannot, therefore, sit in the same room and hammer out compromises unless they are willing to do so at an open meeting.  This probably discourages compromise and probably reinforces the divisions that exist within the Commission.

The Sunshine Act was adopted at a time when agencies such as the SEC were less divided, with decisions typically by consensus.  It was possible in those circumstances to develop a consensus on a particular path forward in a secretive manner that was not in the best interests of the public.  Moreover, where this occurred, a dissent or negative vote was unlikely.  In those circumstances, the need for public meetings anytime a majority of commissioners gathered may have been greater.  

In an era of divided agencies, however, tools need to be developed to manage the divisions.  Some ability to meet internally and iron out difference would seem useful.  Moreover, the divided nature of the Commission provides a check on any internal process that allows for discussions of ongoing Commission business. Commissioners unhappy with any resulting compromise can make their own views public either by dissenting or in a grudging concurrence.

Perhaps it is time to reexamine the Sunshine Act.   


Clawbacks, Fiduciary Duties, and Block-Tagging (Part 2)

The proposed rule provided that companies "must recover erroneously awarded compensation".  The only exception was where repayment was "impracticable." Impracticability was defined narrowly. "Recovery would be impracticable only if the direct expense paid to a third party to assist in enforcing the policy would exceed the amount to be recovered, or if recovery would violate home country law."  Such a determination could only be made after the company first made "a reasonable attempt to recover that erroneously awarded compensation."  

Other factors other than cost could not be concluded.  As the Commission reasoned: 

  • We believe the unqualified “no-fault” recovery mandate of Section 10D intends that the issuer should pursue recovery in most instances. For example, we do not believe the extent to which an individual executive officer may be responsible for the financial statement errors requiring the restatement could be considered in seeking the recovery. Further, we do not view inconsistency between the proposed rule and rule amendments and existing compensation contracts, in itself, as a basis for finding recovery to be impracticable, because issuers can amend those contracts to accommodate recovery. 

Exchange Act Release No. 75342 (July 1, 2015).  

In proposing a "must recover" standard, therefore, the Commission rejected a standard that would leave the matter to the discretion of the board.  Commissioner Gallagher gave this as one reason for his dissent.      

  • Specifically, we could have given boards of directors broad discretion with respect to clawbacks, allowing the Board to determine: (1) whether to pursue a clawback, (2) whether to settle a clawback obligation for less than the full amount, (3) whether there’s a de minimis amount of compensation that it’s not worth pursuing, or (4) whether to recover through an alternative method.  

From his perspective, the failure to provide boards with this type of broad discretion reflected "a view that a corporate board is the enemy of the shareholder, not to be trusted to do the right thing."  He did not make the case that boards would use the authority in an appropriate manner.  Instead, he argued that if the board did not, shareholders could respond by voting "against those directors."  

In a plurality system of voting, the common standard applicable to public companies, voting against directors will not ensure their defeat.  Moreover, as the chair of the SEC noted recently, even companies with majority vote provisions do not automatically remove directors when they fail to receive majority support.  The voting process will not, therefore, ensure that boards will properly exercise their discretion with respect to clawbacks.

What is supposed to ensure that directors do so is their fiduciary obligations to shareholders.  Directors should seek clawbacks where it is in the best interests of shareholders to do so.  Where they do not, shareholders can bring an action for breach of fiduciary duty.  Yet under state law there is no meaningful obligation to seek clawbacks.  Moreover, boards that decide not to do so will have no trouble justifying the behavior as consistent with their fiduciary obligations. 

The lack of discretion in Proposed Rule 10D-1 does not arise from an absence of trust.  It arosen part as a result of language in the statute (which provides that boards "will recover" erroneously paid amounts) and in part because shareholders have no meaningful recourse in the event the discretion is not properly exercised. Had fiduciary duties been more robust and shareholders had meaningful recourse under state law for improperly exercised discretion, greater discretion for the board in making a clawback decision would have been more defensible.     


Clawbacks, Fiduciary Duties, and Block-Tagging (Part 1)

In another 3-2 vote, the Commission proposed rules that would implement the clawback requirements mandated by Dodd-Frank.  Pub. L. No. 111-203, 124 Stat. 1900 (2010).  Continuing the trend of supplanting state substantive law in the corporate governance area, Section 954 of Dodd-Frank commanded that the SEC adopt rules governing clawbacks of compensation following certain restatements.  

As has been the case with most substantive governance provisions (say on pay is a significant exception), Congress required the SEC to do so through the adoption of listing standards.  As a result, the clawback provisions will apply only to listed companies.  

In many respects, the need for this type of requirement reflects a failing of corporate governance under state law. Had corporate practice already provided for clawbacks, there would have been little need for Congress to step in and command that these policies be implemented.  Moreover, Congress already provided for clawbacks in more narrow circumstances in Sarbanes-Oxley.  See Section 304 of the Sarbanes-Oxley Act of 2002.  The provision certainly alerted boards that Congress was concerned over the payment of performance based compensation based upon erroneous financial statements.    

Yet between 2002 (SOX) and 2010 (Dodd-Frank), Section 304 of SOX apparently did not have a significant effect on compensation practices.  It therefore required an act of Congress to mandate clawbacks. In other words, a board's fiduciary obligations were not sufficiently robust to require that directors come up with their own standards for collecting compensation paid as a result of inaccurate financial statements. Presumably had clawbacks been implemented as part of a system of private ordering, the provisions would likely have been more limited than what Congress ultimately adopted.  

We will discuss two aspects of this proposal.  First, some commentators and at least one dissenting commissioner argued that the board should have received broad discretion in determining whether to seek clawbacks.  Second, for the second time, the Commission has proposed provisions that would require the use of XBRL in the proxy statement.  Moreover, for the first time, the Commission has proposed the use of "block-tagging" in the text of a document (footnotes are block tagged in the financial statements).  


SEC Interpretations, the APA, and a Potential Reduction in Deference

The SEC has under consideration the appropriate interpretation of subsection (i)(9) of Rule 14a-8.  Because the staff is considering a change of interpretation (some would say a return to an earlier correct interpretation), arguments have been made that significant revisions in interpretation require notice and comment under the Administrative Procedure Act.  Under the Supreme Court's decision this term in Perez v. Mortgage Bankers Association, it is absolutely clear that they do not.  Agencies can change an interpretation, even a fundamental interpretation, without resorting to notice and comment.  

On that issue there was no real disagreement.  Some of the Justices, most noticeably Justice Scalia, worried about the implication of the interpretation in light of other administrative law doctrines that apply to agency interpretations.  In Auer v. Robbins, 519 US 452 (1997), the Court also held that agencies had the authority to resolve ambiguities in their own rules and that in general such interpretations are "controlling."  Allowing agencies to significantly change interpretations without notice and comment that then become "controlling" when reviewed by courts does accede to administrative agencies considerable authority.  As Justice Scalia noted: 

  • By supplementing the APA with judge-made doctrines of deference, we have revolutionized the import of interpretive rules' exemption from notice-and-comment rulemaking. Agencies may now use these rules not just to advise the public, but also to bind them. After all, if an interpretive rule gets deference, the people are bound to obey it on pain of sanction, no less surely than they are bound to obey substantive rules, which are accorded similar deference. Interpretive rules that command deference do have the force of law.

Justice Alito all but asked for a cert petition challenging Seminole Rock (the opinion relied upon by Auer). Thus, the Court is in agreement that additional process is unnecessary for changes in interpretations but those interpretations soon may be entitled to significantly less (if any) deference. 


The Mischaracterization of Shareholder Reform

The Chair of the SEC recently gave a speech indicating that she had asked the staff for some recommendations on the implementation of a universal proxy.  The speech is here.  

A universal proxy would simply require all sides in a contest to use the same proxy card.  Under the existing system, each side uses its own card and generally includes only its nominees.  Shareholders can, under state law, return only a single card.  As a result, they must pick one of the two cards and, as a result, can only vote for those candidates.  They cannot, therefore, vote for a mix of candidates from both slates.    

The approach is inconsistent with the practice that occurs at the meeting itself.  To the extent that the shareholder actually attends the meeting, he or she would receive a ballot that included all of the candidates and would be in a position to choose from both slates.  As a result, the proxy rules, rather than the shareholder voting process, interferes with shareholder choice.  

The proposal, therefore, would remove an unnecessary restriction on shareholder choice.  It would remove a restriction inconsistent with the existing practice at shareholder meetings.  Yet that is not how the WSJ characterized the change.  In an article titled "SEC Chief Tilts Again to Activists" the WSJ opened by noting that "[a]ctivist investors may get more firepower in their battles against a company’s board candidates."

The characterization is misguided.  First, the change does not clearly benefit one side or the other.  There probably are plenty of shareholders who vote for insurgent candidates but would like to also vote for some of management's nominees but in the absence of a universal proxy cannot.  Indeed, buried within the article was the observation that "[s]ome said the proposal isn’t expected to change many outcomes."

More importantly, however, shifts in the proxy rules designed to benefit all shareholders are probably always susceptible to a tendentious claim that they benefit activists.  This is because anything that makes the proxy process cheaper, rational and more accessible will benefit all shareholders.  Since activists are also shareholders, they likewise benefit.

The issue is not whether activists also benefit from a change in the proxy rules.  The issue is whether shareholders as a group benefit.  A universal proxy is a no brainer in that regard.  It removes indefensible barriers to shareholder choice and, as such, benefit all shareholders.     





Obamacare and Administrative Law: Overturning the Chevron Doctrine

In the area of administrative law, few principles are as hallowed as Chevron deference.  Under the doctrine, courts must accept any "reasonable" interpretation by an agency of ambiguous language in a statute.  The doctrine "is premised on the theory that a statute’s ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159 (2000). 

The idea, however, that Congress intended agencies to interpret ambiguous statutes is a fiction.  The reason for the doctrine is more about policy.  The approach reduces judicial involvement in the interpretation of statutes. Moreover, by deferring to agencies, the courts in effect make the executive branch responsible for the resulting interpretation.  In doing so, an unhappy electorate can ensure some degree of accountability.

Whatever the underlying rationalization, courts are stuck with the obligation to defer to agencies, at least where the reasonable interpretation is articulated in the form of rulemaking.  Where courts do not like an agency's interpretation, they either must find that the statute was not ambiguous or the resulting interpretation was unreasonable.    

In King v. Burwell, the most recent Obamacare decision, the Court (per Chief Justice Roberts) added another avenue for courts wanting to avoid administrative deference.  In that case, the Court had to interpret language in the Affordable Care Act that provided tax credits to persons purchasing insurance through "an Exchange established by the State".  The IRS had promulgated a rule that extended tax credits to those obtaining insurance over either a state or federal exchange.    

To the extent that the applicable language in the statute was ambiguous (something that the Court found), the interpretation adopted by the IRS was, under a traditional Chevron approach, entitled to deference.  The Supreme Court, however, disregarded the traditional presumption.  As the Court noted:

  • In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” Ibid. [FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 159 (2000)] This is one of those cases. The tax credits are among the Act’s key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep “economic and political significance” that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. This is not a case for the IRS. [citations omitted]

In conducting the analysis directly, the Court provided some certainty.  Reasonable interpretations by agencies can be changed and, so long as they remain reasonable and are not arbitrary, will be upheld.  See Perez v. Mortgage Bankers Association.  A future IRS could in theory conclude that only those obtaining insurance over a state established exchange would be entitled to credits.  So long as reasonable (and not arbitrary), a court would be obligated under Chevron to uphold the position.  By deciding to resolve the ambiguities in the statute, the majority in King deprived the IRS of any future discretion to change the interpretation.  

On the other hand, the Court opened the door to future decisions disregarding the Chevron presumption. Since the presumption is already a fiction, it will not be hard for future parties to make a credible case that Congress did not intend to leave the authority to construe ambiguity with the relevant agency.  In those circumstances, an agency's "reasonable" interpretation would no longer be entitled to deference.   


Rule 14a-8(i)(10) and a Change in the Burden of Proof

Rule 14a-8 permits the exclusion of proposals under certain circumstances.  Subsection (i)(10) provides that a shareholder proposal may be excluded if "substantially implemented" by the company.  17 CFR 240.14a-8(i)(10).  Substantial implementation means that the company must largely duplicate the contents of the shareholder proposal.  In addition, the temporal element requires that the company alternative actually be implemented.  

In two recent no action letters, the staff of the SEC found that the company "substantially implemented" shareholder proposals designed to allow shareholders to call special meetings at lower percentages.  In one of the letters, the proposal sought to set the percentage at 20% of the outstanding voting shares; the other sought to set the percentage at 25% of the outstanding voting shares.   

In both cases, the companies proposed amendments to the articles that would set the thresholds at the percentages requested by shareholders.  In both cases, however, the companies limited eligible shares to those held at least one year in a net long position.  Neither letter disclosed the impact of the holding period on the number of eligible shares.  As a result, it was at least possible that the holding period would reduce the percentage of eligible shares below the percentage of total outstanding shares needed to call a special meeting.  

The holding period made the calling of a special meeting more difficult, both legally and procedurally.  In making its decision, the staff did not require a significant discussion on either the logistical burden imposed on shareholders as a result of the holding period or the impact of the holding period on the number of eligible shares.  The effect was to read out of the rule the requirement that companies have the burden of proof in establishing the availability of an exclusion.  See Rule 14a-8(g). 

A letter on the topic has been submitted to the SEC in connection with the review of subsection (i)(9).


SEC v. e-Smart Techs.: SEC Wins Summary Judgment Case Against “Sham” Corporation

In SEC v. e-Smart Techs., Inc., et al., No. 11-895 (JEB), 2015 BL 89408, March 30, 2015, the United States District Court for the District of Columbia denied Tamino Saito’s (“Defendant”) motion for summary judgment and granted the SEC’s motion.   

The SEC alleged that Defendant violated sections 10(b) of the Securities Exchange Act of 1934 (“Act”) and rule 10b-5 by materially misrepresenting investors in the sale of securities. In addition, the SEC alleged violations of Section 16(a) of the Exchange Act.  

According to the SEC’s allegations, E-Smart Technologies, Inc. (“e-Smart”) was a publicly traded company that failed to deliver on promises made to investors in relation to a new e-Smart technology capable of reading and identifying a person’s fingerprints without using an external database. The SEC alleged that Defendant, as the chief technology officer, “repeatedly lied about the actual capabilities of any product that e-Smart had produced.” He was alleged to have claimed “that the company had a highly functional smart card that was ready for commercial deployment, e-Smart had in fact only developed a prototype that did not even work as promised.” 

Rule 10b-5 makes actionable a false or misleading statement made in connection with the purchase or sale of a security. The statement alleged to be false must be made with scienter, a “mental state embracing intent to deceive, manipulate, or defraud” and can arise from intentional misconduct or extreme recklessness. Section 16(a) requires officers, directors, and 10% shareholders to file ownership reports with the SEC. 15 USC 78p(a).

Defendant, who represented himself pro se, and the SEC both relied on experts and both sought to exclude the reports that each had produced. The court declined to adopt the motion submitted by the SEC, noting that dong so was a “drastic step” and that Defendant was pro se.

With respect to the SEC’s expert report, the court denied Defendant’s motion to exclude.  Defendant claimed that the SEC’s expert report should be struck because: (1) the expert  lacked the expertise because he and his firm were not experts “in all aspects” of the card’s technology; (2) the expert failed to adequately test the card because he failed to employ a “distance test”; (3) the report included  a “mish-mash of generalized assertions, without reference to dates and without conducting any specific tests, or having any first hand knowledge or experience with testing defendant’s cards”; and (4) the  report “adopts” the statements of others. The court disagreed with these assertions and did not strike the expert report prepared for the SEC.

With respect to the alleged misstatements, the court laid out a five-step process for analyzing the SEC’s allegations: (1) the extent to which e-Smart misrepresented its card’s capabilities; (2) whether Defendant was responsible for making any false assertions; (3) whether Defendant possessed the requisite scienter; (4) to what extent any misrepresentations were material; and (5) whether Defendant’s statements were made in connection with the purchase or sale of securities.

The court determined e-Smart made several misrepresentations. Defendant, however, contested his responsibility for the misstatements.  With respect to the SEC’s contention that Defendant had the ultimate authority over statements made regarding the card’s capabilities and was therefore the “maker” of the statement under Rule 10b-5, he asserted that he did not sign the relevant report but that someone else had attached his signature to the certification. The court, however, rejected this argument, finding that Defendant had not provided documentary evidence “to support such a serious allegation”.

Next, the court determined Defendant acted with scienter. The court found that there was “no way” Defendant was unaware of the actual capabilities of e-Smart’s technology. Because the capabilities of e-Smart’s one and only product would be important to an investor’s decision to participate, the court also held Defendant’s misrepresentations were material.  Id. (“Given [Defendant’s] role at e-Smart, there is simply no way he could have been mistaken about the state of its technology. As noted above, he was the only member of e-Smart’s management team that had “ever operated a smart card business or [had] any experience with the manufacture and marketing of smart card products,” and as far as e-Smart’s core technology was concerned, he purportedly invented it.”). 

Finally, the court held that Defendant’s misrepresentations were made in connection with the purchase or sale of a security. The standard requires that any action “touching the sale of securities” is considered “in connection.”

The SEC’s second claim alleged Defendant violated section 16(a) of the Act. As the court noted, scienter is not required in a section 16(a) action. The court found that at various times, Defendant served as an officer and/or director of the company and had not filed the requisite reports reflecting his beneficial owneship of the shares. 

As a result, the court granted the SEC’s motion for summary judgment on both claims and denied Defendant’s motion for summary judgment.

The primary materials for this case can be found on the DU Corporate Governance Site.


Same Sex Marriage and the Securities Laws

The securities laws often employes the term "spouse" and "marriage."  In a recent interpretive release, the Commission issued an interpretive release clarifying that the terms included same sex marriage.  The interpretation purportedly arose as a result of the Supreme Court's decision in US v. Windsor when it struck down the Defense of Marriage Act (DOMA).  As the Commission stated

  • In light of this decision, the Commission will read the terms “spouse” and “marriage,” where they appear in the federal securities statutes administered by the Commission, the rules and regulations promulgated thereunder, releases, orders, and any guidance issued by the staff or the Commission, to include, respectively, (1) an individual married to a person of the same sex if the couple is lawfully married under state law, regardless of the individual’s domicile, and (2) such a marriage between individuals of the same sex. This guidance is consistent with Windsor.

The guidance appropriately clarified the issue, although Windsor seemed more an opportunity than an explanation.  With or without the Supreme Court's interpretation, it would be hard today to interpret marriage in a way that excluded same sex couples.  

The guidance, however, still leaves an unaddressed interpretive issue.  The Commission has also occasionally used the term "spousal equivalent" in various rules. The staff has never clarified that the relationship includes civil unions or civil partnerships.    

The term “spousal equivalent” was first employed in 2000 when the Commission amended the standards for auditor independence. See Exchange Act Release No. 43602 (Nov. 21, 2000). The term was defined as “a cohabitant occupying a relationship generally equivalent to that of a spouse.” The Commission did not, however, address whether the term included civil unions or civil partnerships. 

This was not surprising. Such relationships essentially did not exist at the time the rule was adopted.  The SEC revisited the phrase in 2010. The language engendered commentary, including an inquiry about whether the term included civil unions or civil partnerships. Investment Advisers Act No. 3220 (June 22, 2011) (adopting release). The final release did not, however, address the issue. The impact of the term on civil unions and civil partnerships, therefore, remained unclear. 

The ambiguity arises out of the conventional definition of “cohabitant.” The term includes persons who “live together as if married, usually without legal or religious sanction.” To the extent limited to relationships “without legal or religious sanction,” spousal equivalent would arguably not include civil unions and civil partnerships.  The staff should, therefore, clarify that these relationships are included in any definition of family member. 


SEC v. StratoComm Corp.: Assessing Appropriate Relief for Securities Fraud and Registration Violations

In SEC v. StratoComm Corp., 1:11-CV-1188, 2015 BL 62316 (N.D.N.Y. Mar. 09, 2015), the United States District Court for the Northern District of New York held injunctive relief, bars from participation as an officer and director or in a penny stock offering, disgorgement, and civil penalties sought by the Security and Exchange Commission’s (SEC) were warranted.  The court had previously found StratoComm Corp., Roger Shearer, and Craig Danzig (“Defendants”) liable for securities fraud and registration violations in connection with the offer and sale of StratoComm stock.

In a prior ruling, the court found that various of the Defendants violated antifraud provisions of the federal securities law, including Sections 5(a), 5(c), and  17(a) of the Securities Act of 1933 and Sections 10(b) and of the Securities Exchange Act of 1934.  The court also held Danzig violated section 15(a) of the Exchange Act, for acting as an unregistered broker, and Shearer under Section 20(a) as a controlling person. The SEC then moved for judgment imposing relief. 

The Defendants opposed the SEC’s motion for relief, arguing any violation of the securities law was unintentional and that the costs of the litigation made any large financial payment "an impossibility."  

Under the securities laws, the issuance of a permanent injunction required a finding of the risk of future violations.  See Section 21(d), 15 USC 78u(d) (Commission may seek injunction "whenever it shall appear to the Commission that any person is engaged or about to be engaged in acts or practices constituting a violation of any provision").  

In determining the applicability of an injunction and other relief, courts consider six factors: (1) whether defendant has been found liable for illegal conduct; (2) the degree of scienter involved; (3) whether the infraction is an isolated occurrence; (4) whether the defendant continues to maintain his past conduct is blameless; (5) whether the defendant is in a position that future violations could be anticipated; and (6) the totality of the circumstances.

The court agreed to issue the injunction.  The court pointed to Shearer and Danzig's status as “recidivist violators” under the securities laws, the degree of scienter, the non-isolated nature of the offenses, id. (“Contrary to Defendant’s arguments, the instant infractions were not isolated occurrences but rather appeared to be a part of a longstanding and somewhat elaborate scheme to defraud investors”), and what the court described as “protestations of innocence”.  See Id. (“Defendants' protestation of innocence is a factor that weighs in favor of the sought-after injunctive relief.”).  

The court also found that both disgorgement and prejudgment interest were appropriate. Disgorgement is calculated by a “reasonable approximation of profits causally connected to the violation,” and “any risk of uncertainty should fall on the wrongdoer whose conduct created the uncertainty.” The court determined that Defendants made approximately $4,086,245.00 from the alleged transactions, an amount increased by $882,464.68 for prejudgment interest.

Defendants asserted that the amounts were “excessive” because “(1) a subset of investors submitted affidavits attesting that they were not ‘duped’ by StratoComm and Shearer (and therefore approximately $1.16 million, representing their investments, should not be included in the disgorgement calculation); (2) Shearer did not ‘loot’ the company ‘for his own financial gain’; and (3) StratoComm and Shearer are experiencing extreme financial hardships.”  The court rejected the argument, noting in part that “the purpose of disgorgement is not to compensate for losses but to deprive the wrongdoer of ill-gotten gain.” StratoComm and Shearer were therefore found joint and severally liable for the amount.  Danzig was not required to disgorge any funds.  Id.  (“Because StratoComm and Shearer are required to pay disgorgement in the full amount of the investors’ contribution, with interest, disgorgement by Danzig of a portion of that money would result in a double payment for the same conduct.”)..   

The court also held that Shearer and Danzig should be barred from the offering of penny stock and that Shearer should be barred from acting as an officer or director of any public company.  Finally, the court held each Defendant liable for “third-tier” civil penalties, imposing  penalties of $100,000 against StratoComm, $50,000 against Shearer, and $25,000 against Danzig.

The United States District Court for the Northern District of New York granted in part and denied in part Plaintiff’s motion for relief, ordering injunctive relief, disgorgement, a participation bar, and civil penalties against Defendants.

The primary materials for this post can be found on the DU Corporate Governance website.


Legal Reform and Business Development Companies

The House had under consideration legislation that would reform the regulatory regime for business development companies.  These are closed end companies that invest 70% of their assets in private and distressed operating companies.  The legislation creating these companies was put in place in 1980 to improve funding sources for these middle market companies.

The House subcommittee on Capital Markets and Government Sponsored Enterprises held a hearing this week on the proposed reforms.  The list of witnesses (I was one of them) is here.  There are a number of interesting developments in the area.  

First, the legislative proposal would permit BDCs to invest a higher percentage of their assets in financial rather than operating companies (the percentage would increase from 30% to 50% under the current draft).  The concern is that BDCs, as leveraged entities, will be investing a greater portion of their assets in other leveraged entities, increasing the risk.  In addition, the concern is that this will result in less lending to operating companies, an important segment of the economy.  The latter issue is discussed in my testimony.

Second, commercial banks appear to be entering the area. Goldman has formed a BDC.  The registration statement is here.  Concerns have arisen as to whether this constitutes a circumvention of the Volcker Rule by allowing what would otherwise be prohibited proprietary trading.  As discussed in my testimony, the Volcker Rule specifically allows for ownership of BDCs by commercial banks (although they are limited to 25% if they want to avoid making them an affiliate).  Thus, the practice is expressly authorized under the Volcker Rule.

Nonetheless, bank entry into the area does raise concerns.  Large commercial banks have inherent advantages.  See The "Great Fall": The Consequences of Repealing the Glass-Steagall Act.  Discussion has occurred over whether the market perceives banks as providing "implicit guarantees" of subsidiaries or entities that they create.  To the extent that the market believes there are implicit guarantees, the borrowing costs of banks sponsored BDCs may be less.  This may provide a competitive advantage that allows for increased market share.  

Bank sponsored BDCs can make loans like any other BDC.  The issue is whether banks sponsored BDCs will have different lending criteria.  To the extent that commercial banks, for example, have a more conservative approach to lending (in fact or in practice), the result could be a decline in funding to some operating companies.    


AIG and the Odds of Dispassionate Reversal

In Starr International v. US, 2015 WL 3654465, Court of Federal Claims, June 15, 2015, the trial of AIG lasted 37 days.  One has to wonder why.  The court clearly viewed the deal received by AIG as harsh, singling out the insurance company for unique and arbitrary treatment.  As the court reasoned:

  • The weight of the evidence demonstrates that the Government treated AIG much more harshly than other institutions in need of financial assistance. . . . Other major institutions, such as Morgan Stanley, Goldman Sachs, and Bank of America, encountered similar liquidity shortages. Thus, while the Government publicly singled out AIG as the poster child for causing the September 2008 economic crisis (Paulson, Tr. 1254–55), the evidence supports a conclusion that AIG actually was less responsible for the crisis than other major institutions. The notorious credit default swap transactions were very low risk in a thriving housing market, but they quickly became very high risk when the bottom fell out of this market. Many entities engaged in these transactions, not just AIG. The Government's justification for taking control of AIG's ownership and running its business operations appears to have been entirely misplaced. The Government did not demand shareholder equity, high interest rates, or voting control of any entity except AIG. Indeed, with the exception of AIG, the Government has never demanded equity ownership from a borrower in the 75–year history of Section 13(3) of the Federal Reserve Act.

But those conclusions did not require a trial.  The treatment of AIG relative to the commercial banks was readily apparent on the first day the trial began.  The trial did allow the court to conclude that the treatment had “no legitimate purpose”. 

  • The Government's unduly harsh treatment of AIG in comparison to other institutions seemingly was misguided and had no legitimate purpose, even considering concerns about “moral hazard.” The question is not whether this treatment was inequitable or unfair, but whether the Government's actions created a legal right of recovery for AIG's shareholders. 

But in the end, the holding seems to be that the government lacked the authority to take an equity stake in and run, the company. 

  • there is nothing in the Federal Reserve Act or in any other federal statute that would permit a Federal Reserve Bank to take over a private corporation and run its business as if the Government were the owner. Yet, that is precisely what FRBNY did. It is one thing for FRBNY to have made an $85 billion loan to AIG at exorbitant interest rates under Section 13(3), but it is quite another to direct the replacement of AIG's Chief Executive Officer, and to take control of AIG's business operations. A Federal Reserve Bank has no right to control and run a company to whom it has made a sizable loan. As FRBNY's outside counsel from Davis Polk & Wardwell observed on September 17, 2008 in the midst of the AIG takeover, “the [government] is on thin ice and they know it. But who's going to challenge them on this ground?” PTX 3283, Davis Polk email. Answering this question, the “challenge” has come from the AIG shareholders, whom the Government intentionally excluded from the takeover process.

Thus, because the Fed's actions were not authorized, the action was “illegal.” One has to wonder, however, whether the legal conclusion was influenced by the judge's distaste over the government's actions.  If the case is appealed, the appellate court will reconsider the legal analysis, presumably in a dispassionate manner.  The appellate court may well disagree (certainly Justice has indicated disagreement) and, if it does, will reverse, the 37 day trial and the "unduly harsh" treatment notwithstanding.     


The Ban on Some Fee Shifting Bylaws?

The Delaware house adopted the ban on fee shifting bylaws. The bill is here. The legislation awaits the signature of the governor.

The provision does not necessarily apply to actions under the federal securities laws (except possibly actions arising out of a breach of a duty).  Nonetheless, it is also possible that the provision does not expressly address these actions because Delaware corporations lack the authority under Section 109(b) to regulate causes of action other than those involving a corporation's internal affairs.   


XBRL, the Proxy Statement, and the SEC's Ambivalence about Data Tagging (Part 2) 

The failure to require the tagging of financial statements in Regulation A+ offerings reflected a continued ambivilence by the Commission (at least some of the Commission) with respect to machine readable data. It is hard to believe that a $2000 cost will reduce the number of offerings.  At the same time, requiring the use of XBRL format would have provided analysts and other market professionals with a more cost effective method of analyzing the offerings.

Yet XBRl requirements continue to surface.  In Exchange Act Release No. 74835 (April 29, 2015), the Commission proposed a rule (by a 3-2 vote, Commissioners Gallagher and Piwowardissenting) that would require disclosure of pay versus performance.  The proposal would require the disclosure of pay versus performance in tabular format.  See Proposed Rule 17 CFR § 229.402(v).  The Release proposed that the columns in the proposed table be in XBRL.  See Id. ("We are proposing that the disclosure provided in each column of the proposed table, including any footnote disclosure, be provided in interactive data format using XBRL.").  As the Release stated: 

  • The proposal would require registrants to tag separately the values disclosed in the required table, and to separately block-text tag the disclosure of the relationship among the measures, the footnote disclosure of deductions and additions used to determine executive compensation actually paid, and the footnote disclosure regarding vesting date valuation assumptions. The interactive data would have to be provided as an exhibit to the definitive proxy or information statement filed with the Commission, in addition to appearing with and in the same format as the rest of the disclosure provided pursuant to proposed Item 402(v) of Regulation S-K (e.g., in ASCII or HTML). Registrants would be required to prepare their interactive data using the list of tags the Commission specifies and submit them with any supporting files the EDGAR Filer Manual prescribes. We believe requiring the data to be tagged would lower the cost to investors of collecting this information, would permit data to be analyzed more quickly by investors and other end-users than if the data was provided in a non-machine readable format, and would facilitate comparisons among public companies. In addition, requiring the data to be tagged would facilitate analysis of how information related to a single issuer changes over time.

Two of the Commissioners supporting the proposal specifically referenced the requirement of tagging (and the IAC's encouragement of the use of tagging).  As Commissioner Stein noted

  • Finally, I have been a consistent advocate for data tagging of Commission forms, so I am very pleased to see that pay versus performance disclosure, as proposed, will be tagged in eXtensible Business Reporting Language, or XBRL.  The proposed rule sets forth an approach toward incorporating machine readable data for communicating compensation and performance information.  XBRL streamlines the collection and reporting of financial information.  XBRL data tagging involves a process in which a company essentially marks certain parts of its financial disclosure with specific defined terms from a shared dictionary, referred to as a “taxonomy”.  All registrants use the same shared taxonomy, which allows for comparability across companies. 
  • In order to achieve comparability, we need structured data in formats like XBRL.  Today’s proposal would represent the first piece of data in the proxy statement to be tagged and is hopefully a harbinger of things to come.   We should be moving toward having the entire proxy statement tagged, and this is a great first step. 
  • As the SEC Investor Advisory Committee noted in its recommendation advocating for more data tagging, “modern technology provides the SEC with the opportunity to unlock far greater value from the information that it collects and stores.”  I personally believe that tagging the entire proxy statement would unlock great value for both the Commission and shareholders. 
  • The current proposal is to have pay versus performance disclosure tagged in XBRL.   It is my hope and expectation that this disclosure would be tagged in Inline XBRL once available, which would allow companies to file the required information and data tags in one document rather than repeated in separate exhibits.  I understand that Inline XBRL is not yet available on the SEC’s Electronic Data Gathering Analysis and Retrieval (EDGAR) system, but soon will be.  When that day comes, Inline XBRL should be used for pay versus performance and all other parts of the proxy statement.  

As Commissioner Aguilar noted

  • Today’s rules also take an important step forward in furthering the usability and comparability of executive compensation disclosures by requiring that “pay versus performance” information be provided in an interactive data format using XBRL. This is a new development in the corporate governance context that has long been discussed. Indeed, in its 2010 Concept Release on the U.S. Proxy System, the Commission stated that if issuers provided reportable items in interactive data format, “shareholders may be able to more easily obtain specific information about issuers, compare information across different issuers, and observe how issuer-specific information changes over time as the same issuer continues to file in an interactive data format.” More recently, in 2013, the Commission’s Investor Advisory Committee recommended that the Commission prioritize tagging of data that would provide increased transparency with respect to corporate governance issues, including portions of the proxy statement that relate to executive compensation. Although data tagging is already required in other contexts, today’s proposed rules would, for the first time, implement an interactive data format into a Commission rulemaking involving the proxy process and corporate governance. 

At the same time, however, the proposal included questions that suggested significant ambilence about the requirement of tagging. 

  • Should we require that, as proposed, disclosure about the relationship between executive compensation and registrant performance be tagged? Why or why not? Would tagging the relationship of executive compensation to financial performance enhance comparability among different registrants? Alternatively, instead of requiring that the disclosure about the relationship be tagged, should tagging this disclosure be optional? If a registrant chooses to add more information to the prescribed table, should we require this additional information to be tagged as well, even if registrant-specific extensions are necessary? 

The Chair had little to say on the issue, only that: 

  • Under the proposal, companies would be required to provide information in an interactive data format, XBRL, a requirement that would be phased-in for smaller reporting companies.  Requiring the disclosure in interactive data format could increase the comparability and usefulness of the disclosures.  I also encourage shareholders, companies, and other interested parties to weigh in on this and all aspects of the proposed rules.

The statement suggests ambiguity.  In any event, the proposal represents the first time the Commission has actually proposed a rule that would require the tagging of the proxy statement.  To the extent adopted, it will be a significant step forward with respect to tagging SEC filings.   


XBRL, the Proxy Statement, and the SEC's Ambivalence about Data Tagging (Part 1) 

In the first decade of the new millenium, the SEC was at the forefront of ensuring the electronic readability of financial information.  By 2009, the Commission had put in place an ambitious rule that required the use of XBRL.  See Jeremy Liltes, Enhancing SEC Disclosure with Interactive Data ("In 2009, the Commission adopted an ambitious rule (the Interactive Financial Data Rule) that mandated the submission of financial statement data in eXtensible Business Reporting Language (XBRL). That same year, the SEC also began requiring the use of interactive formats for mutual fund risk/return data, nationally recognized statistical rating organization ratings (NRSRO) data, and Form D notices of exempt offerings.").  

Thereafter, however, the emphasis on electronic readability and tagging went into a black hole, with little additional progress.  In 2013, the Investor Advisory Committee, after little more than a year into its existence, adopted a recommendation calling on the SEC to embrace tagging.  The recommendation encouraged the SEC to embrace a culture of "Smart Disclosure" that promoted "the collection, standardization, and retrieval of data filed with the SEC using machine-readable data tagging formats." In addition, however, the recommendation called the tagging of "portions of the proxy statement . . . that relate to executive compensation"

The SEC has, since the adoption of the recommendation, occasionally reintroduced XBRL and tagging back into the regulatory framework.  But at the same time, the Commission has missed a number of opportunities to promote a culture of smart disclosure.  In adopting Regulation A+, the Commission required that Part 1 of Form 1-A be in XML through an online fillable form that "which captures key information about the issuer and its offering using an easy to complete online form".  This is the approach used for Form D.  The approach allows the information to be read electronically and facilitates compliance by providing an online form that can be filled out by those engaging in a Regulation A+ Offering. 

But the same release also, with little analysis, declined to require that the financial statements be tagged.  As the adopting release stated: 

  • Although we solicited comment on whether issuers conducting Tier 2 offerings should be required to provide their financial statements to the Commission and on their corporate websites in interactive data format using XBRL, we are not adopting any such requirement in the final rules. 461 Commenters that addressed this issue opposed requiring the use of XBRL in Regulation A filings.462 We agree and do not believe that requiring the use of XBRL in Regulation A filings would be an appropriately tailored requirement for smaller issuers at this time. 

The release cited only three letters (BIO Letter; MoFo Letter; US Chamber of Commerce).  The letters did little besides assert that the requirement would be costly.  The MOFO Letter simply stated that the approach was not approrpriate but provided no analysis.  See MOFO Letter  ("We do not believe it would be appropriate to require Tier 2 issuers to present their information in an interactive data format.").  The Chamber complained of cost but provided no support.  See Chamber Letter ("XBRL remains a work in process and has undergone a number of growing pains that make compliance with it costly, particularly for small issuers. An exemption to XBRL compliance for Tier 2 issuers would allow these businesses to focus more of their resources on raising capital, expanding their operations, and creating jobs.").  

Finally, BIO gave the issue the most extended treatment but again, while objecting on the basis of cost, provided no supporting data.  See BIO Letter ("The cost burden of such a requirement, and therefore the amount of capital diverted from R&D, would be significant – a harmful burden that would divert capital raised in the offering to reporting rather than research.").  

At least one commissioner objected to this treatment.  See Helping Small Businesses and Protecting Investors, Remarks of Commissioner Aguilar, March 25, 2015 ("I would have also liked to see the increased use of tagged data, particularly using XBRL, to allow the SEC and the public to better analyze an issuer’s information. Today’s amendments require tagged data in XML fillable format in only certain documents, including Part I of Form 1-A and Part I of Form 1-K. However, unlike registered companies, companies using Regulation A-plus will not be required to submit financial statements using XBRL format."). 

The paucity of authority is noticeable since the conclusions may easily be wrong.  To the extent that costs of tagging financial statements was ever actually prohibitive, that is no longer the case.  Since the adoption of the 2009 requirements, third party venders have entered the market and provided greater efficiencies.  According to noe study, the costs of tagging financial statements can be $2000 or less.  See Leslie Kramer, The Future of Financial Reporting, Financial Executives International, Dec. 1, 2014 ("a survey done by Financial Executive International found that the median annual cost for small companies to file these reports is just $2,000, and that there are third-party providers offering XBRL preparation services at even lower prices.").   


Wavering on Waivers—Bad Boy/Bad Actor Waivers Under Federal and State Law (Part 5)

Post Script

In a MarketWatch opinion published May 20, 2015, the columnist discussed the Deutsche Bank order issued by the SEC on May 1, 2015 (SEC Rel. 33-9764) granting Deutsche Bank a waiver from being an ineligible issuer under SEC Rule 405 notwithstanding Deutsche Bank’s guilty plea to wire fraud in April 2015 related to the worldwide manipulation of LIBOR (the London Interbank Offered Rate). The guilty plea, together with other related actions, resulted in Deutsche Bank paying fines and penalties of $2.519 billion. According to the dissent filed by Commissioner Kara M. Stein: 


  • Deutsche Bank’s illegal conduct involved nearly a decade of lying, cheating, and stealing. This criminal conduct was pervasive and widespread, involving dozens of employees from Deutsche Bank offices including New York, Frankfurt, Tokyo, and London. Deutsche Bank’s traders engaged in a brazen scheme to defraud Deutsche Bank’s counterparties and the worldwide financial marketplace by secretly manipulating LIBOR. The conduct is appalling. It was a complete criminal fraud upon the worldwide marketplace. 


Commissioner Stein noted that this was Deutsche Bank’s third waiver request in eight years, and she did not see any evidence “that Deutsche Bank’s culture of compliance and the reliability and accuracy of its future disclosures establishes good cause for a waiver.”  In her dissent, Commissioner Stein also noted that 100% of the twelve WKSI waivers granted since August 2013 went to large financial institutions. One can question whether the SEC will show the same leniency to smaller issuers applying for waivers under Rule 506 or Regulation A, or even well-known seasoned issuer (WKSI) status. 

Reprinted from The Colorado Bar Association, Business Law Section, May 2015


Wavering on Waivers—Bad Boy/Bad Actor Waivers Under Federal and State Law (Part 4)

Seeking a Waiver From the SEC

Notwithstanding Commissioner Gallagher’s comments to the contrary, on March 13, 2015, the SEC Division of Corporation Finance issued updated guidance for persons seeking “Waivers of Disqualification under Regulation A and Rules 505 and 506 of Regulation D.” The guidance makes it clear that waivers will be treated separately from any enforcement proceeding that results in the disqualification and will be considered by the Division of Corporation Finance’s Office of Small Business Policy rather than by enforcement. When considering a waiver

request, the guidance advises that the Division will consider the following factors, with the understanding that no single factor will be dispositive:  

  • Who was responsible for the misconduct and what role the bad actor or actors have or had with respect to the party seeking the waiver. Depending on the circumstances and the conduct at issue, if misconduct committed by one or more individuals resulted in the waiver applicant’s disqualification, and the applicant removes or terminates its association with those individuals, the Division would generally view such actions taken as favorable to the waiver request.  
  • Whether the misconduct occurred over an extended period or whether it was an isolated instance.  
  • What remedial measures the party seeking the waiver has taken to address the misconduct, when those remedial measures began, and whether those measures are likely to prevent a recurrence of the misconduct and mitigate the possibility of future violations.  
  • The severity of the impact on the issuer or third parties, such as investors, clients or customers, if the waiver request is not granted, and weigh any such impact against the facts and circumstances relating to the misconduct to assess whether disqualification would be a disproportionate hardship in the light of the parties involved in, and the nature of, the misconduct. 


In Colorado

Like securities regulators in many states, the Colorado Securities Commissioner has the authority to issue cease and desist orders under C.R.S. §11-51-606(1.5), seek injunction under § 11-51-602, refer actions for criminal enforcement under § 11-51-603, or seek civil enforcement under § 11-51-604(14). Depending on how they are worded, orders issued by the Securities Commissioner or by a court in a state enforcement action may, or may not, fit within the Bad Actor Provisions of Rule 506(d). 


It is important for Colorado lawyers when working with clients before the SEC and the Colorado Division of Securities (or the securities agency of any other state) to understand that waivers may be separate from the enforcement discussion. Many, if not most, enforcement actions are resolved by consent, without a hearing or a trial. If defense counsel in a securities enforcement proceeding in a federal or state forum is not familiar with the Bad Boy and Bad Actor Provisions, the sanctions against a respondent can be much more severe than the language of the eventual order. Disqualification from capital raising Rules 505 or 506, or from the Colorado Crowdfunding Act (when available), can be an unexpected consequence of a consensual settlement. 

Furthermore, where Colorado has specific Bad Actor Provisions (such as those included in proposed H.B. 15-1246, the Colorado Crowdfunding Act), a federal waiver may not be sufficient to avoid disqualification under state law. Where the discussions with the SEC or with the State Division of Securities are likely to result in sanctions which may result in disqualification from various capital raising alternatives under federal or state law, counsel and their

clients should consider the ramifications before agreeing to any consensual order. That would be the time to discuss waivers and the concern that a federal waiver may not be sufficient under state law. Perhaps the concerns can be dealt with by limiting the language of the order; perhaps a waiver from the SEC and applicable state authorities will be required. The respondent should understand these issues before consenting to any sanction. 

Reprinted from The Colorado Bar Association, Business Law Section, May 2015


Wavering on Waivers—Bad Boy/Bad Actor Waivers Under Federal and State Law (Part 3)

Federal and State Ability to Create and then Waive a Disqualification

The SEC has the authority to bring enforcement actions that might result in a bar under the Bad Boy Provisions or the Bad Actor Provisions; so do the states. In Colorado specifically, the Colorado Division of Securities has the statutory authority to conduct investigations and issue subpoenas (C.R.S. § 11-51-601), enforce the securities laws by injunction (C.R.S. § 11-51-602), seek criminal penalties through the state attorney general’s office or through a district attorney (C.R.S. §§ 11-51-603, 603.5), seek civil enforcement (C.R.S. § 11-51-604(14)), and conduct administrative proceedings, including a very prompt-acting cease and desist proceeding (C.R.S. § 11-51-606(1.5)).

Depending on the findings in such proceedings, the respondent’s or defendant’s ability to use Rule 506 (or Rule 505) may be impacted. This clearly should be a consideration for any person negotiating a settlement of any SEC or state enforcement action because the result may be more than bargained for—not only the sanctions included in the order, but an incidental treatment as a Bad Boy, Bad Actor, or both. While the sanctions may be painful, the resultant inability to raise capital may be devastating. 

As the New York Times reported on March 13, 2015 (at page B6), in a speech the previous day SEC Chair Mary Jo White discussed the fact that during 2013 and 2014, the SEC rejected 14 requests for waivers from the Bad Actor Provisions while granting 13 waiver requests. One of the more controversial waivers granted was to Oppenheimer & Company which settled a case that fell within the Bad Actor Provisions. Despite more than 30 regulatory actions over the previous decade, the SEC granted Oppenheimer a waiver. In her speech, Chair White attempted to distinguish enforcement actions from the resultant waivers that may be applicable. 

SEC Chair White was responding to a speech a month earlier by Commissioner Daniel Gallagher. Commissioner Gallagher conflated the enforcement actions taken by the SEC with waivers. He described the SEC’s authority to impose sanctions as being “both remedial and punitive in nature.” He went on to say “that until such time as the Commission officially decides whether disqualifications will continue to be treated as sanctions or whether we will revert to the historical practice of treating them apart from the enforcement process, I will condition my vote on enforcement recommendations matters on an understanding of the planned disposition of requested waivers. A settlement should involve a meeting of the minds on all aspects of the resolution. A settlement should bring finality.” In the opinion of Commissioner Gallagher, where waivers are an important consideration, they should be considered with the other sanctions. 

Reprinted from The Colorado Bar Association, Business Law Section, May 2015


Wavering on Waivers—Bad Boy/Bad Actor Waivers Under Federal and State Law (Part 2)

Disqualifications Brought to Rule 506

Historically, even with a disqualification under Rule 505, an issuer could use Rule 506. That has no longer been the case since September 23, 2013, when Rule 506(d) became effective due to the mandate set forth in the Dodd Frank Wall Street Reform and Consumer Protection Act of 2010. Rule 506(d) (the “Bad Actor Provisions”) is a disqualification from the ability to use Rule 506 by bad actors. While the Bad Actor Provisions are similar to the provisions under Regulation A (before the 2015 amendments), they were not the same. For example, 

  • In Rule 506(d) one of the categories of covered persons includes beneficial owners of 20 percent or more of an issuer’s voting equity securities, whereas in Rule 262 of Regulation A and Rule 505 of Regulation D, the category includes beneficial owners of 10 percent or more of any class of the issuer’s equity securities.
  • Another category of covered persons in Rule 506(d), but not in Rule 262 and Rule 505, includes any investment manager of an issuer that is a pooled investment fund and any director, executive officer, or other officer participating in the offering, of any such investment manager or general partner or managing member of such investment manager.  
    • Although the disqualifying events in Rule 506(d) are also similar to disqualifying events in Rule 262, they are broader in certain respects. In addition to certain administrative orders, industry bars, injunctions involving securities law violations and specified criminal convictions covered under Regulation A and Rule 505, the disqualifying events in Rule 506(d) also include:
      • Commission cease and desist orders involving scienter-based antifraud provisions of the federal securities laws and violations of Section 5 of the Securities Act; and 
      • Final orders of certain state and federal regulatory authorities that impose a bar from association with a regulated entity, engaging in the business of securities, insurance or banking, or engaging in savings association or credit union activities, or a final order based on a violation of any law or regulation that prohibits fraudulent, manipulative or deceptive conduct and is issued within ten years of the proposed sale of securities. 

As amended, the Rule 262 Bad Actor disqualification is substantially the same as the Rule 506(d) Bad Actor disqualification. In neither rule is there a requirement that the actions from which the disqualification derives be scienter-based, although some actions (such as a criminal conviction, (Rule 262(a)(1) and Rule 506(d)(1)(i)) or a “scienter-based anti-fraud provision of the federal securities laws” (Rule 262(a)(5)(i) and Rule 506(d)(1)(v)(A)) do require some level of intent. Notably, the Bad Actor rules do not include final orders of Canadian provincial regulators in the list of disqualifying events. 

The effective date for new Rule 262 is June 19, 2015, although there are complex transition rules in Rule 262(b).  For the Bad Actor Provisions of Rule 506(d) to be applicable, the disqualifying events must have occurred on or after September 23, 2013. Where the events occurred before the effective dates of the rules (September 23, 2013 for Rule 506; June 19, 2015 for Regulation A), the issuers must still comply with the disclosure requirements of Rule 262(d) or Rule 506(e) (as applicable). (Note that the “disqualifying event” is not the action that led to the criminal conviction or final order of the applicable federal or state regulator, but the conviction or order.)  Much of this is explained in the SEC’s “A Small Entity Compliance Guide” (September 19, 2013). 

Reprinted from The Colorado Bar Association, Business Law Section, May 2015 

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