Search results for: conflict minerals

Connecticut Senator Richard Blumenthal has written to SEC Chair White urging that the SEC label so-called “fee-shifting” bylaws major risk factors and require companies to disclose them before any initial public offering.  Moreover, Blumenthal believes the SEC should take the position that fee-shifting provisions are inconsistent with the federal securities laws and should refuse to permit registration statements to move forward for any company that has adopted these provisions.

I believe that Senator Blumenthal is a good and decent man, and I base this in part on some indirect personal knowledge of him.  I also think that there are legitimate concerns with fee-shifting bylaws and that a debate on those and other provisions is perfectly appropriate.  However, I find it seriously troubling that our legislators feel obliged to tell the SEC how to do its job, particularly at such a granular level.  Are they trying to do away with the SEC?  Do our senators and congressmen believe that they can do a better job regulating our capital markets and disclosure directly rather than through the SEC?

I happen to think that, in general, the SEC has done a superlative job in both areas.  Of course, there have been errors of commission (no puns intended) and omission (e.g., can you say “Madoff”?), but over the 80+ years of its existence, the SEC has generally been an apolitical beacon of serious and legitimate regulation.  And I suspect there’s a strong correlation between the SEC’s screw-ups and congressional interference (or lack of funding).

I don’t think for a nanosecond that Senator Blumenthal wants to do away with the SEC.  So why is he trying to do so by more subtle means?

What do you think?

How Congo Became a Corporate Governance IssueA few months ago, the U.S. Court of Appeals for the D.C. Circuit upheld portions of Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, known as the “conflicts mineral rule.” The rule, enacted by Congress in July of 2010,requires certain public companies to provide disclosures about the use of specific conflict minerals supplied by the Democratic Republic of Congo (DRC) and nine neighboring countries. In the D.C. Circuit case, the National Association of Manufacturers, or NAM, challenged the SECs final rule implementing the conflicts mineral rule, raising Administrative Procedure Act, Exchange Act, and First Amendment claims. The D.C. Circuit agreed with NAM on its third claim and held that the final rule violates the First Amendment to the extent the rule requires regulated companies to report to the SEC and to post on their publically available websites information on any of their products that have not been found to be “DRC conflict free.” Despite this adverse ruling, the SEC made it clear that the conflicts minerals rule is here to stay: in a statement on the effect of the D.C. Circuit’s decision, the SEC communicated its expectation that public companies continue to comply with those deadlines and substantive requirements of the rule that the D.C. Circuit’s decision did not affect. So, what is the conflicts mineral rule, how far does it reach, and what are public companies doing to comply?

In an unusual attempt to curtail human rights abuses in Africa through regulation of U.S. public companies, the conflicts mineral rule requires companies to trace the origins of gold, tantalum, tin, and tungsten used in manufacturing and to Continue Reading Despite First Amendment concerns, the conflict minerals rule is here to stay

As mentioned on Brock and Dave’s Blog and a recent article by Bloomberg, the conflict minerals disclosure required by the Dodd-Frank Act appears to be close to final.  These proposed rules are highly controversial because of the estimated high costs for public companies to comply with the new rules compared to the small perceived benefit to investors.  In fact, we have previously blogged regarding the likelihood that the SEC has grossly underestimated the compliance costs.

Under the proposed conflict minerals rules, companies must disclose whether certain minerals used in production chains originate from the Democratic Republic of the Congo or its neighboring countries.  Minerals sourced from these areas of central Africa often fund militia and other military groups’ operations which have exacerbated internal conflicts and human rights violations.   Congress believes that by requiring these disclosures public companies may be encouraged to seek alternative sources, materials, or suppliers to project a more socially responsible image to consumers.

In a letter to the SEC, Senator Leahy and other members of Congress have taken issue with the proposed final rules apparently circulating around the Capitol.  In the letter, the Senator and his colleagues have informed the SEC that they believe the proposed final rules contravenes Congress’s legislative intent by allowing the conflict mineral reports to be “furnished” rather than “filed.”  The difference, of course, is not just semantics.  Items “filed” in periodic reports are subjected to liability under the Securities Act of 1933, including Section 11 and Section 12(a)(2), because the information is incorporated by reference into Securities Act registration statements.  Items “furnished” are subject only to liability under the Securities Exchange Act of 1934, primarily Rule 10b-5.  Because Section 11 liability presents essentially “strict liability” for issuers, it would be much easier for a plaintiff to win a judgment against an issuer for faulty conflict minerals disclosure if the disclosure is “filed” rather than “furnished.”

Whether or not the legislative intent espoused by Senator Leahy in his letter is correct, we believe the foundation of the entire law is flawed.  As we have blogged before, we strongly disagree with the increasing frequency in which social policy has been weaved Continue Reading Conflict minerals rule may be reaching a conclusion

Section 1502 of the Dodd-Frank Act mandates the SEC to adopt rules requiring reporting companies to disclose whether certain minerals used in production chains originate from the Democratic Republic of the Congo or its neighboring countries. Minerals sourced from these areas of central Africa often fund militia and other military groups’ operations which have exacerbated internal conflicts and human rights violations. The goal of the recent legislation is to provide transparency to consumers to allow them to make certain choices with respect to the products that they purchase from public companies. Moreover, the disclosure requirements may encourage public companies to seek alternative sources, materials, or suppliers to project a more socially responsible image to consumers.

The SEC estimated approximately 1,200 companies would be affected by the new disclosure rules and would result in an increase in aggregate compliance costs of approximately $71 million. However, a recent Tulane University study argues that the SEC woefully underestimated this cost and that the actual cost is almost $8 billion. The study indicates that some of the reasons for the SEC’s underestimation include a flawed calculation of the number of affected companies, failure to account for the impact on suppliers or privately-held companies in an issuer’s supply chain, and inadequate estimates of costs for internal due diligence reform. Although final conflict mineral disclosure rules have not yet been promulgated, a bi-partisan congressional group has openly urged the SEC to promptly do so.

To view the SEC’s proposed conflict mineral disclosure rules, click here. To view the study conducted by Tulane University, click here. For more information, view Gustav Schmidt’s contact information by clicking here.

Image by Clker-Free-Vector-Images from Pixabay

My apologies to those of you who thought I would expound on the corporate governance implications of Madonna’s early oeuvre; but I want to write about materiality, and I’m a sucker for a catchy title.

Those of us who spend our waking (and many sleeping) hours thinking about disclosure know that materiality is the linchpin of disclosure; if something is material, you at least have to consider disclosing it – though of course, probability and other factors can impact that decision.  We also know that there are any number of judicial interpretations of what is and is not material.  However, it seems to me that we are approaching a tipping point in how materiality may impact disclosures.

Take, for example, the position of SEC Commissioner Elad Roisman, who has stated, in effect, that there is no need for SEC rules explicitly requiring disclosures concerning climate change and other ESG matters, because existing rules already require disclosure of anything that is material to a company.  (For example, see his keynote address to the 2020 National Conference of the Society for Corporate Governance.)  I have been a member of the Society for many years, and I have heard many of my fellow members express similar views.  However, if that is the case, taking that view to its logical extreme, why have any specific disclosure requirements at all?  Why not just say “tell us what’s material”? Continue Reading Living in a material world

If you find the title of this posting confusing, let me explain:  On June 28, the SEC announced revisions to the definition of “smaller reporting company”that will significantly expand the number of companies that fit within that category (i.e., “smaller gets bigger”).  As a result, more public companies will be able to reduce the disclosure they are required to provide under SEC rules (i.e., “which means less”).  The new definition will go into effect 60 days after publication in the Federal Register.

Background

The SEC adopted the reduced disclosure requirements applicable to smaller reporting companies, or SRCs, in 2007. These reduced requirements were intended to ease the costs and other burdens of disclosure for small companies.  The reduced requirements enabled SRCs, among other things, to:

  • present only two (rather than three) years of financial statements and the related management’s discussion and analysis;
  • provide executive compensation for only three (rather than five) “named executive officers”;
  • omit the compensation discussion and analysis in its entirety;
  • present only two (vs. three) years of information in the summary compensation table; and
  • omit other compensation tables, pay ratio disclosure, and narrative descriptions of various compensation matters.

In addition, SRCs that are not “accelerated filers” (companies that must file their Exchange Act reports on an accelerated basis) need not provide an audit attestation of management’s assessment of internal controls, required by the Sarbanes-Oxley Act.  More on this below. Continue Reading Smaller gets bigger, which means less (the new definition of “smaller reporting company”)

The still relatively new SEC Chair, Jay Clayton, has let it be known that one of his missions is to improve the health of our IPO market and, thereby, to improve our capital markets generally.  His minions – including a senior SEC Staff member I recently heard in Washington – have been spreading this gospel according to Jay.

I wish him (and them) luck, but I wonder if the mission is impossible.  I’m thinking of some recent articles, including one by the inimitable Andrew Ross Sorkin entitled “Fixing the ‘Brain Damage’ Caused by the I.P.O. Process”, that makes the resuscitation of IPOs seem unlikely.  As if the title weren’t off-putting enough, one of the executives quoted in the article described his company’s IPO process as “a way of living in hell without dying”.  Not a good start.

Continue Reading Can the US IPO market be brought back from the dead?

waldryano
waldryano

I don’t know when Congress decided that every piece of legislation had to have a nifty acronym, but the House Financial Services Committee recently passed (on a partisan basis) what old-fashioned TV ads might have called the new, improved version of the “Financial CHOICE Act”.  The word “choice” is in solid caps because it stands for “Creating Hope and Opportunity for Investors, Consumers and Entrepreneurs”.

Whether and for whom it creates hope, opportunity or something else entirely may depend upon your perspective, but whatever else can be said of the Act, it is long (though at 589 pages, it is slightly more than half as long as Dodd-Frank), and it addresses a very broad swath of issues.  Here’s what it has to say about some key issues in disclosure, governance and capital formation, along with some commentary. Continue Reading The Financial CHOICE Act – everything you’ve ever wanted, and more?

William Hinman, the new Corp Fin director
William Hinman, the new Corp Fin director

As has been rumored, the SEC announced today that William H. Hinman will be the new director for the SEC’s Division of Corporation Finance.

Mr. Hinman, who recently retired as a securities and corporate finance partner from the Silicon Valley office of Simpson Thacher & Bartlett LLP, has advised in some of the larger IPOs in the technology section in recent history such as Alibaba, Google and Facebook. Mr. Hinman replaces Keith Higgins, the former director of Corp Fin who left in January.

Given newly appointed SEC Chair Clayton’s stated desire to substantially reduce regulation and burdens to increase the IPO market, hiring Mr. Hinman seems to align with Chair Clayton’s vision. The number of public companies has decreased 37% since the high water mark set in 1997. While there may be many reasons for the decrease in IPOs and in the number of public companies, overly burdensome disclosure obligations certainly ranks among the top reasons (see conflict minerals, pay ratio, CD&A, XBRL . . . ).

While I doubt we will be going back to 20 page Form 10-Ks, let’s hope that the new Chair and Corp Fin director can jettison some of the most burdensome and least effective disclosure, that they can help make the public capital markets for potential small- and mid-cap issuers more robust, and that the SEC can move forward with other important initiatives.

 

I recently attended the Winter Meeting of the Council of Institutional Investors and thought you would like to know what the Council and its members are thinking.

The British Library
The British Library

What was NOT discussed – proxy access

First, one dog that didn’t bark was proxy access.  There was virtually no mention of the subject. I can only assume that proxy access has been adopted by a sufficient number of companies that it is no longer controversial or even worth discussing.

Coming to a company near you – majority voting…

What was worth discussing was majority voting in uncontested director elections, and if you are a mid- or small-cap company, you’d be well advised to think about it.  Among other things, the Council sent a letter last year on the subject to the companies in the Russell 3000, and was not encouraged by the responses.  Most large-cap companies have it, and it seems to be inevitable that smaller companies will be pressured to adopt it as well.  Frankly, I don’t think it’s worth fighting over, and early adoption might give a company a leg up on other governance challenges. Continue Reading News from the institutional investor front