Non-GAAP Financial Measures – Agenda Item for Upcoming Audit Committee Meetings

On June 27, 2016, SEC Chair Mary Jo White delivered a speech, which focused, in part, on non-GAAP financial measures, which have become the new old “hot button” issue for the SEC. Chair White strongly urged companies to carefully consider the SEC’s new Compliance & Disclosure Interpretations (“C&DIs”) that were issued in May 2016 and to “revisit their approach to non-GAAP disclosures.” In addition, Chair White emphasized that appropriate controls should be considered and that audit committees should carefully oversee their company’s use of non-GAAP financial measures and disclosures.

The SEC’s mission with respect to non-GAAP financial measures has been the same since its adoption of non-GAAP rules in 2003 — “to eliminate the manipulative or misleading use of non-GAAP financial measures and, at the same time, enhance the comparability associated with the use of that information.” Although the SEC recognizes that “investors want non-GAAP information,” as Chair White mentioned in her speech, the concern is that instead of supplementing the GAAP information, non-GAAP financial measures have “become the key message to investors, crowding out and effectively supplanting the GAAP presentation.” To make her message crystal clear, Chair White also stated in her speech that the SEC is “watching this space very closely and [is] poised to act through the filing review process, enforcement and further rulemaking if necessary to achieve the optimal disclosures for investors and the markets.”

If a company uses non-GAAP financial measures, then the use of such measures and disclosures in the company’s SEC filings, earnings press releases, earnings calls and other presentations should be an agenda item for upcoming audit committee meetings. On June 28, 2016, the Center for Audit Quality issued a new publication, Questions on Non-GAAP Measures: A Tool for Audit Committees, which is designed to facilitate the conversation between audit committees and management about non-GAAP financial measures. Questions included in this publication focus on transparency, consistency, and comparability of non-GAAP financial measures. The publication also includes a few procedural questions that are important to assess whether appropriate controls exist with respect to the use and disclosure of non-GAAP financial measures.

SEC’s Views on Risk Factor Disclosures

On April 13, 2016, the SEC issued a Concept Release, Business and Financial Disclosure Required by Regulation S-K. In this release, which is part of the SEC’s initiative to review and improve its disclosure requirements, the SEC is seeking comments on whether its “business and financial disclosure requirements continue to elicit important information for investors and how registrants can most effectively present this information.” The Concept Release covers a wide range of topics, however, this blog post focuses on the SEC’s concerns about risk factor disclosures. Item 503(c) of Regulation S-K currently requires “disclosure of the most significant factors that make an investment in a registrant’s securities speculative or risky and specifies that the discussion should be concise and organized logically.”

Except for five specific examples of risk factors suggested by the SEC in Item 503(c) (the company’s lack of operating history, lack of profitable operations in recent periods, financial position, business or proposed business and lack of a market in the company’s securities), risk factor disclosure is principles-based. It is interesting to note that these five factors specified in Item 503(c) have not changed since the SEC published its initial guidance on risk factor disclosure in 1964. Continue reading “SEC’s Views on Risk Factor Disclosures”

Boards Should Put Time and Resources into Cybersecurity Issues – It Is Good for Business and Works as a Defense Strategy

We have previously blogged about Commissioner Aguilar’s recommendations at a NYSE conference, “Cyber Risks and the Boardroom” on what boards of directors should do to ensure that their companies are appropriately considering and addressing cyber threats. On October 20, 2014, the United States District Court for the District of New Jersey dismissed a derivative lawsuit (Palkon v. Holmes, Case No. 2:14-CV-01234) filed against directors and certain officers, including General Counsel, of Wyndham Worldwide Corporation (WWC). The Court’s opinion can be viewed as a real life validation of the principles outlined in the Commissioner’s speech. Continue reading “Boards Should Put Time and Resources into Cybersecurity Issues – It Is Good for Business and Works as a Defense Strategy”

FRIDAY AFTERNOON SMACKDOWN – THE SEC v. THE HOUSE OF REPRESENTATIVES

On Friday, June 20, 2014, the Securities and Exchange Commission filed an action against the Committee on Ways and Means of the U.S. House of Representatives and congressional staffer Brian Sutter seeking enforcement of subpoenas the SEC issued. The SEC is investigating whether laws against insider trading, specifically applicable to members and employees of Congress via the Stop Trading on Congressional Knowledge Act of 2012 (the “STOCK Act”), were violated by the disclosure of non-public information about Medicare reimbursement rates. This is pretty exciting stuff for securities lawyers. It isn’t everyday that one branch of the federal government sues another. (Generally, the facts set forth below are derived from the SEC’s court filing and have not yet been established as true in court.)

About a year after the STOCK Act became law, the SEC launched an investigation into whether information regarding the April 1, 2013 announcement by the U.S. Centers for Medicare and Medicaid Services (“CMS”) on the 2014 reimbursement rates for the Medicare Advantage program was leaked improperly prior to the official public announcement. In its brief filed with the United States District Court for the Southern District of New York, the SEC details the opening of a formal investigation to determine, among other things, the source(s) of information in an email sent from a lobbyist to a broker-dealer that issued a “flash report” indicating that certain Medicare reimbursement rates would actually increase, rather than decrease as had been expected. The flash report was issued approximately 40 minutes before the official CMS announcement regarding the reimbursement rates and was followed promptly by a dramatic increase in the price and trading volume of certain health care stocks.

On May 6, 2014 the SEC staff issued subpoenas to the House Committee on Ways and Means and Brian Sutter. Mr. Sutter is the Staff Director of the House Ways and Means Committee’s Healthcare Committee. Before becoming Staff Director, Mr. Sutter was a staff member to the Subcommittee. Both the Committee and Mr. Sutter have refused to comply with the subpoenas, citing a number of legal objections, including that the documents demanded are protected by the Constitution’s Speech or Debate Clause. The SEC is having none of that and, on June 20, 2014, the SEC filed an action to enforce subpoenas it issued in connection with its investigation, potentially setting up a Constitutional showdown.    

From my perspective, there are at least two interesting points here. First, the SEC appears to be aggressively enforcing the STOCK Act. Hopefully, the courts will find a way to support the SEC in its efforts to conduct the investigation. If the SEC cannot investigate, the STOCK Act may have little, if any, bite. (If you would like to read more about the STOCK Act, please see our summary in the April 2012 issue of Up to Date.) Second, it will be very interesting to watch the matter unfold from a Constitutional perspective.

Investing in Bitcoin? Think Twice Says the SEC.

Bitcoin has been in the news a lot recently and most of the news has been bad, including news of the bankruptcy of Mt. Gox, formerly one of the world’s largest Bitcoin exchanges. Most recently, on May 7, 2014, the SEC issued an Investor Alert to make investors aware of the potential risks of investments involving Bitcoin and other forms of virtual currency.

According to the Investor Alert, Bitcoin has been described as a decentralized, peer-to-peer virtual currency that can be exchanged for traditional currencies, or used to purchase goods or services, usually online. What most distinguishes Bitcoin and similar virtual currencies from more traditional currencies is the fact that they are not backed by any government and operate without any central authority or oversight.

In its release, the SEC discusses:

  • The heightened risk of fraud that investments involving Bitcoin may have, noting that “innovations and new technologies are often used by fraudsters to perpetrate fraudulent investment schemes.”
  • Potential warning signs of investment fraud, including “guaranteed” high investment returns, unsolicited sales pitches, unlicensed sellers, no net worth or income requirements for investors, and pressure to buy immediately.
  • Limited recovery options if fraud or theft results in the loss of Bitcoin.
  • Certain unique risks of investments involving Bitcoin, including lack of insurance usually held by banks and brokerage firms, historic Bitcoin exchange rate volatility, potential governmental restrictions, and the potential that Bitcoin exchanges may stop operating due to fraud, technical difficulties, hackers or malware.

If the SEC’s recent guidance is not enough to make you pause and think before investing in anything relating to Bitcoin, you may want to review the SEC’s July 2013 Investor Alert about the use of Bitcoin in Ponzi schemes, the Financial Industry Regulatory Authority’s recent Investor Alert cautioning investors about the risks of buying and using digital currency such as Bitcoin and the North American Securities Administrators Association listing of digital currency on its list of the top 10 threats to investors for 2013. In addition, the IRS has issued guidance stating that the IRS will treat virtual currencies, such a Bitcoin, as property, which has the potential to make transactions in Bitcoin far more complex than transactions in traditional currencies.

The SEC Proposed Extensive Additional Requirements for the General Solicitation of Investors Under Rule 506(c)

In addition to adopting the final rules governing general solicitation and advertising in connection with certain securities offerings where all purchasers are accredited investors, on July 10, 2013, the SEC also proposed new rules that in the SEC’s words are intended: 

to enhance the Commission’s ability to evaluate the development of market practices in Rule 506 offerings and to address concerns that may arise in connection with permitting issuers to engage in general solicitation and general advertising under new paragraph (c) of Rule 506.

All of the excitement all the hoopla over the past few days about the adoption of new general solicitation and advertising rules has been somewhat tempered by concern that these proposed rules will adversely impact the use of general solicitation in Rule 506(c) private placements under Regulation D.

Regulation D and Form D 

With respect to Regulation D and Form D, the proposals would, if adopted:

Add a new Rule 510T Requiring Issuers to Submit to the SEC General Solicitation Materials.  

New Rule 510T would require issuers, on a temporary basis, to submit (not “file” or “furnish”) to the SEC any written general solicitation materials used in a Rule 506(c) offering no later than the date the materials are first used in connection with the offering.  The SEC did not, however proposed that these materials, when filed with the SEC, be publicly available.  The rule would expire two years after its effective date.  The SEC believes that the collection of these materials will facilitate its assessment of market practices through which issuers solicit purchasers in Rule 506(c) offerings.  Prior to the effectiveness of Rule 510T, the SEC will make available an intake page on the SEC’s website to allow issuers, investors and other market participants to voluntarily submit any written general solicitation materials used in connection with a Rule 506(c) offering. 

Compliance with Rule 510T would not be a condition of the Rule 506(c) exemption.  Instead, Rule 507(a) would be amended to provide that Rule 506 would be unavailable for an issuer if the issuer, or any of its predecessors or affiliates, has been subject to any order, judgment or court decree enjoining such person for failing to comply with Rule 510T. 

Amend Rule 503 of Regulation D to Require:

  • For issuers that intend to engage in general solicitation pursuant to Rule 506(c), the filing of a Form D no later than 15 calendar days in advance of the first use of general solicitation.  Currently, Rule 503 requires that the Form D be filed within 15 after the first sale.
  • The filing of a Form D amendment within 30 calendar days after the termination of a Rule 506 offering.  Currently, Rule 503 does not require the filing of such a closing Form D. 

Amend Rule 507 to Disqualify Issuers from Using Rule 506 for New Offerings for Failing to Comply with Their Form D Filing Requirements.

The proposed rules automatically disqualify an issuer from using  Rule 506 in any new offering for one year if the issuer, or any predecessor or affiliate of the issuer, did not comply, within the last five years, with all of the Form D filing requirements in a Rule 506 offering.  The one year disqualification period would not start to run until the required Form D filings had been made and would not affect offerings of an issuer that are ongoing at the time of the filing non-compliance.   In addition, the five year look-back period would not extend back beyond the effective date of the new disqualification rule.  The rule would also provide that if a required Form D or amendment was filed within 30 days after its due date, it would not be considered late for purposes of the new disqualification rule.  The cure period will not be available if the issuer previously failed to comply with a Form D filing deadline in connection with the same offering. 

Currently, issuers are precluded from relying on Rule 506 in connection with a failure to file a Form D only if the issuer, any of its predecessors or affiliates have been subject to a court order enjoining such person for failure to comply with Rule 503, which requires the filing of a Form D.    

Add New Rule 509 Requiring Issuers to Include Legends in Certain Offering Materials. 

A new proposed Rule 509 would require issuers to include certain legends in any written communication that constitutes a general solicitation in any offering conducted in reliance on Rule 506(c) and require additional disclosures for private funds, such as private equity, venture capital and hedge funds in general. 

The generally applicable legends will look familiar to securities law practitioners and would include statements regarding sale only to accredited investors, reliance on an exemption from the registration requirements of the Securities Act, and transfer restrictions under applicable securities laws.

Private funds would be required to include additional legends indicating that the securities offered are not subject to the protection of the Investment Company Act of 1940 and additional disclosures in any written general solicitation materials that include performance data.   

Compliance with these additional disclosure requirements would not be a condition of the Rule 506(c) exemption.  Instead, Rule 507(a) would be amended to provide that Rule 506 would be unavailable if the issuer, or any of its predecessors or affiliates, has been subject to any order, judgment or court decree enjoining such person for failing to comply with Rule 509. 

Amend Form D to Require Additional Information Primarily in Connection with Offerings Conducted in Reliance on Rule 506, such as:

  • The issuer’s publicly accessible website address.
  • For offerings conducted under Rule 506(c), the name and address of any person directly or indirectly controlling the issuer.
  • Information about the size of the issuer (revenues or net asset value) where such information is otherwise publicly disclosed (currently, “decline to disclose” is an option on Form D with respect to this type of information).
  • Additional information about the number and types of accredited investors investing.
  • Additional information about the use of proceeds from offerings conducted under Rule 506.
  • If a registered broker-dealer was used in connection with the offering, whether any general solicitation materials were filed with FINRA.
  • In the case of pooled investment funds advised by investment advisers registered with, or reporting as exempt reporting advisers to, the SEC, the name and SEC file number for each investment adviser who functions directly or indirectly as a promoter of the issuer.
  • For Rule 506(c) offerings, the methods used to verify accredited investor status and the types of general solicitation/advertising used.

Rule 156 Amendments

In addition, the SEC also proposed to amend Rule 156 to apply the guidance in that rule to the sales literature of private funds.  Generally, Rule 156 presently provides guidance on the types of information in investment company sales literature that could be misleading for purposes of the federal securities laws.

New SEC Sheriff in Town

President Obama today nominated Mary Jo White to lead the Securities and Exchange Commission.  Ms. White is a former federal prosecutor who served as US Attorney for the Southern District of New York for approximately nine years.  Ms. White currently is a lawyer at the law firm of Debevoise & Plimpton LLP, where she Chairs the Litigation Department.  Assuming that Ms. White is confirmed by the Senate, White will replace Elisse Walter, who is serving out the rest of former SEC Chairman Mary Schapiro’s term. Ms. Schapiro resigned as SEC Chairman in December 2012.

Ms. White’s background is enforcement, not regulation.  It will be interesting to see if the SEC takes a stronger enforcement stance under Ms. White’s leadership.

Mary Schapiro Will Resign as SEC Chairman in December; Elisse Walter Was Designated to Lead the SEC

The SEC announced today that Mary Schapiro will step down as SEC Chairman on December 14, 2012.  Ms. Schapiro became chairman in the wake of the financial crisis in January 2009.  The SEC’s press release regarding her departure includes a long list of Chairman Schapiro’s accomplishments and praises her for strengthening and revitalizing the agency. 

President Obama issued a statement today on the departure of Chairman Schapiro, in which he announced that he intends to designate , a current Commissioner, as Chair upon Ms. Schapiro’s departure.

Ms. Walter, was sworn in as SEC Commissioner in July 2008. Prior to her appointment as SEC Commissioner, Ms. Walter served as Senior Executive Vice President, Regulatory Policy & Programs for FINRA. She held the same position at NASD before its 2007 consolidation with NYSE Member Regulation. Prior to joining NASD, Ms. Walter served as the General Counsel of the Commodity Futures Trading Commission (CFTC). Before joining the CFTC in 1994, Ms. Walter was the Deputy Director of the SEC Division of Corporation Finance. She graduated from Yale University with a B.A., cum laude, in mathematics and received her J.D. degree, cum laude, from Harvard Law School.

ISS Releases Proposed Updates to Proxy Voting Guidelines for Comment

The ISS recently released its 2013 proposed updates to their proxy voting guidelines. Five proposals would affect US based companies, of which one was directed at shareholder proposals and four focused on executive compensation, as follows:
• ISS would recommend a vote AGAINST or WITHHOLD from the entire board if the board failed to act on a shareholder proposal that received the support of a majority of shares cast in the previous year. Currently, ISS would make such a recommendation only if the proposal received the support of either (i) a majority of the outstanding shares or (ii) a majority of the votes cast in the last year and one of the two previous years.
• A revision in the methodology for selecting peer groups for executive compensation comparisons in say-on-pay proposals.
• The use of a comparison of realizable pay to grant date pay as part of the evaluation of pay-for-performance alignment.
• Adding the pledging of company shares by directors and officers as a factor that may lead to negative recommendations under the existing problematic pay practices evaluation.
• A change on say-on-golden parachute proposals to (i) include existing change-in-control arrangements maintained with named executive officers rather than focusing only on new or extended arrangements and (ii) to place further scrutiny on multiple legacy problematic features (e.g. single trigger equity, tax gross –ups, etc.) in change in control agreements.
The full proposals are available at http://www.issgovernance.com/policycomment2013. The comment period expires on October 31, 2012.