This newsletter discusses noteworthy updates, key regulatory decisions and upcoming compliance reminders. You are welcome to contact us to discuss any of the topics. In this edition, we review:

SEC Continues Focus on Executives Perquisites

Enforcement Against Insider Trading Remains a Point of Emphasis for the SEC

Scaled Disclosure Accommodation Extended to Broader Range of Smaller Reporting Companies; Minor Changes to Cover Pages to SEC Periodic Reports and Registration Statements

SEC Commissioner Calls for Changes to Discourage Insider Sales During Stock Buybacks

Implications of In re Investors Bancorp on Outside Director Equity Compensation

SEC Adopts Amendments to Simplify and Update Disclosure Requirements

______________________________________________________________________________

SEC Continues Focus on Executive Perquisites

By William Cole and Jake Greenberg

The SEC continues to focus on improper disclosure of executive perquisites.  Recently, settlements in two additional SEC enforcement actions involving perks were announced.  These actions are consistent with a recent focus by the SEC in this area.

Recent Perk Cases

In July 2018, the SEC issued a cease-and-desist finding involving The Dow Chemical Company relating to allegedly undisclosed perks.  As in some other recent cases, the order included a monetary penalty ($1.75 million) and required the retention of a consultant for a period of at least one year.  In another recent action, the SEC charged the former CEO of Energy XXI, Ltd., an oil and gas company, with perk violations as well as allegations involving undisclosed personal loans and related party transactions.  Other recent cases are discussed in in our February 2018 edition, here.

The Dow case did not allege executive misconduct.  Rather, it alleged the failure to properly account for and to disclose approximately $3 million in perks.  The SEC alleged that the company inappropriately applied a “business purpose” standard in evaluating perks instead of the SEC’s more rigorous “integrally and directly related” standard.  The perks at issue appear relatively common and included travel to outside board meetings, sporting events, club memberships, limited use of personal assistant office time and membership fees to sit on a charitable board. The SEC’s requirement of an independent consultant to review policies and controls emphasizes the SEC’s focus on companies having proper disclosure controls and procedures and training.

Integrally and Directly Related Standard

In the Dow case the SEC alleged that Dow applied the incorrect standard in determining whether an item is a perk.  In determining whether an item is a disclosable perk, the SEC applies a two-step analysis (see Securities and Exchange Commission, “Executive Compensation and Related Person Disclosure,” Release Nos. 33-8732A, 34-54302A, File No. S7-03-06 (Aug. 29, 2006), at 74) (emphasis added):

  • An item is not a perquisite or personal benefit if it integrally and directly related to the performance of the executive’s duties.
  • Otherwise an item is a perquisite or personal benefit if it confers a direct or indirect benefit that has a personal aspect, without regard to whether it may be provided for some business reason or for the convenience of the company, unless it is generally available on a non-discriminatory basis to all employees.

If an item is "integrally and directly" related that ends the analysis.  For example, a car used for business travel, regardless of the type of car, would not generally be a perquisite because the car is both integral and directly related to the performance of the executive’s duties. The business purpose test applied by Dow was originally considered by the SEC but ultimately not adopted in 2006. The integrally and directly related standard is a stricter threshold.

Complaint Involving Energy XXI

The Energy XXI case focused on the conduct of the company’s former CEO, John Schiller Jr.  That case involved undisclosed perks, including a private bar stocked with liquor and cigars, personal use of company aircraft and shopping trips, among others.   The SEC also accused Mr. Schiller of financing “an extravagant lifestyle” by intermingling his personal finances with company finances, leading to a failure to report related person transactions, including loans from vendors and a prospective board member.  Although the company did not appear to have knowledge of the loans, the SEC did note that a director and officer (“D&O”) questionnaire was not timely completed. 

Company Disclosure Controls

Recent SEC cases reinforce the need for robust controls and procedures to ensure proper evaluation and disclosure of perks.  Proper procedures help reduce the likelihood of a disclosure issue but also may help reduce the severity of any penalty for an improper disclosure.  Recent cases emphasize the need for focus and training about the “integrally and directly related” standard and the importance of timely completion of D&O questionnaires or other controls that would identify issues concerning perks. 

As we have noted previously, other controls or training areas that may be considered include:

  • tracking personal use of company assets (such as tickets for entertainment events);
  • developing a methodology for calculating the aggregate incremental cost of perks;
  • ensuring that the compensation committee approves all aspects of compensation, including perks;
  • implementing a requirement to pre-approve perks and utilize a cost limit; and
  • ensuring that an internal or external audit team reviews the company’s proxy disclosures and underlying support documentation.

For more information on recent perk cases and more detail on potential controls for companies to consider see our article from February 2018, here.

Enforcement Against Insider Trading Remains a Point of Emphasis for the SEC

By Enrique Miranda and R. Randall Wang

Illegal insider trading refers to the buying and selling of securities while in possession or aware of material, nonpublic information in breach of a fiduciary duty or other relationship of trust or confidence.  The SEC  believes that such trading undermines investor confidence in the fairness and integrity of the markets, and recent cases indicate that the detection and prosecution of insider trading remain one of its enforcement priorities.

Late last year, Christopher J. Lollar, a petroleum engineer, settled SEC charges of insider trading. Lollar, an engineer for energy company Apache Corporation (“Apache”), became aware of a major oil and gas discovery through his work and purchased a number of Apache shares and call options before the public announcement of the discovery. After the announcement, Lollar sold the shares and options, resulting in alleged profits of $214,295. As part of the settlement with the SEC, Lollar agreed to disgorge the alleged profits, plus interest, and pay a civil penalty of $214,295.

In another case that settled earlier this year, Yao Li, a former executive for Alliance Fiber Optics Products, Inc. (“AFOP”), was alleged to have made a profit of approximately $200,000 by engaging in short sales and sales of already owned shares prior to three disappointing earnings announcements. The SEC used various data analysis tools to detect suspicious patterns, such as improbably successful trading in advance of earnings announcement over time. As an executive, Li learned through regular meetings that AFOP was likely to miss the revenue guidance in three different quarters. Additionally, AFOP had a policy which specifically prohibited its employees from engaging in short selling. In addition to a cease and desist order, Li agreed to disgorge $196,203, plus interest, and pay a civil penalty of $196,203. As part of his settlement, Li also agreed to a five-year prohibition on acting as an officer or director of a public company.

In late June 2018, three friends were charged with insider trading. Sebastian Pinto-Thomaz, an analyst for a credit agency, learned of the confidential plans for Sherwin-Williams Co. to acquire The Valspar Corp. through his work and then tipped two of his friends, Abell Oujaddou and Jeremy Millul, who purchased Valspar securities prior to the announcement of the acquisition. Following the announcement, Oujaddou and Millul sold their holdings, generating profits of almost $300,000.  Along with the charges brought by the SEC, the U.S. Attorney’s office for the Southern District of New York brought criminal charges against Pinto-Thomaz, Oujaddou, and Millul.

More recently, Rep. Chris Collins, along with his son Cameron and the father of his son’s girlfriend, Stephen Zarsky were indicted on insider trading charges, and concurrently charged by the SEC.  Collins, a director of Innate Immunotherapeutics, an Australian biotech company, allegedly shared confidential information regarding Innate’s failed clinical trial results with family and friends.  Cameron Collins and Zarsky are charged with selling Innate shares before the public announcement of the negative clinical trial results and avoiding losses of more than $700,000, as well as tipping others on the basis of the material, nonpublic information.  After the announcement, the company’s stock price dropped by more than 92 percent. 

Although Rep. Collins did not sell shares himself, he is alleged to have breached his duty of confidentiality to the company and to have received a personal benefit from his tip of material, nonpublic information to his son Cameron by providing a gift of information to a close relative.  Similarly, Cameron Collins and Zarsky are alleged to have received a personal benefit from such tip, to have improperly traded while aware such information was material and nonpublic, and to have personally benefited by tipping other relatives and friends.

The SEC also settled charges with Lauren Zarsky, Cameron Collins’ girlfriend, and her mother, Dorothy Zarsky, for trading on the basis of material, nonpublic information. Lauren Zarsky agreed to disgorge $19,440, plus interest, and pay a civil penalty of $19,440.  Dorothy Zarsky agreed to disgorge $22,600, plus interest, and pay a civil penalty of $22,600. Lauren Zarsky, a CPA, also agreed to be suspended from appearing or practicing before the SEC as an accountant, which includes a prohibition on participating in the financial reporting or audits of public companies.

In light of these cases, companies should consider reviewing their insider trading policies, as discussed in our last newsletter, including the scope of restricted participants and training and education programs. In addition to criminal charges, insider trading penalties can results in large monetary fines as well as cease and desist orders and officer or director bars. 

Scaled Disclosure Accommodation Extended to Broader Range of Smaller Reporting Companies; Minor Changes to Cover Pages to SEC Periodic Reports and Registration Statements

By Kaitlyn Pettet and R. Randall Wang

The SEC approved amendments to the definition of “smaller reporting company” (an “SRC”) increasing the public float threshold (the cap on portion of shares held by public investors) to $250 million, up from the prior $75 million threshold.  An issuer with a public float of less than $700 million may also qualify for SRC status under the amended rule if its annual revenues are less than $100 million. 

No change was made to the exclusion of issuers that are an investment company, an asset-backed issuer, or a majority-owned subsidiary of a parent that is not an SRC.

Benefits of SRC Status

The less rigorous reporting requirements for SRC’s provide a number of benefits to qualifying companies.  The SEC noted in its proposed rule that extending SRC status to a greater number of registrants may encourage companies that have been hesitant to go public to do so, thus increasing capital formation.  SRC status significantly reduces filing and audit expenses for qualifying companies.  An ICBA study estimates that SRC status—thus exemption from the 404(b) reporting requirements—could cut audit fees for certain types of qualifying institutions by as much as 50%.   Some of the reduced filing requirements for SRCs are the following:

  • Audited historical financial statements:
    • Two years of income statements (rather than three)
    • Two years of cash flow statements (rather than three)
    • Two years of changes in stockholders’ equity (rather than three)
  • Acquired company financial statements – maximum of two years (rather than three)
  • Pro forma financial statements – fewer circumstances when required
  • Two-year MD&A comparison (rather than three)
  • Two years of summary compensation data (rather than five)
  • Three named executive officers (rather than five)
  • No requirement to provide:
    • Selected or supplementary financial data
    • Risk factors in periodic reports
    • Stock performance graph
    • Quantitative and qualitative disclosures about market risk
    • Executive compensation analysis, certain stock award tables, pension or deferred compensation benefits tables or pay ratio disclosure
    • Compensation committee report

However, SRCs are subject to some additional disclosure requirements. For example, for related-person transactions, the threshold is the lesser of $120,000 or 1% of total assets, rather than the $120,000 threshold under S-K Item 404, and the disclosure must go back two years. SRCs are also subject to additional Item 404 disclosure requirements relating to the company’s parent and related persons receiving underwriting compensation.

Methods of Calculation

A company’s public float, the total market value of the company’s outstanding common stock (voting and non-voting) held by non-affiliates or non-insiders, is the amount reflected on the first page of the company’s 10-K as the “aggregate market value of the common stock held by nonaffiliates of the registrant.”   The public float is measured as of the last business day of the most recently completed second fiscal quarter, based on the last sale price or the average of the bid and asked prices in the principal trading market.  For an initial registration statement, a registrant must choose a date that is within 30 days of the filing to determine SRC eligibility.

A company’s “annual revenues” for the $100 million SRC limit calculation is the total revenues as presented on the income statement for the most recently completed fiscal year for which audited financial statements are available. If the company is a financial institution however, it must calculate its gross revenues earned from traditional banking activities.

A company that determines it does not qualify under the new calculation of smaller reporting company will remain unqualified until it meets the subsequent qualification thresholds at the 80% level: (i) public float of less than $200 million, if it previously had $250 million or more; or (ii) less than (a) $80 million of annual revenues, if it previously had $100 million or more and (b) $560 million of public float, if it previously had $700 million or more. 

For the first fiscal year after September 10, 2018, existing public companies may qualify by applying the new initial qualification thresholds rather than the lower subsequent qualification thresholds.

Other Changes

The annual revenues threshold for financial statements of acquired businesses was increased from $50 million to $100 million, and as a result acquirers (including non-SRCs) may omit the earliest of the three fiscal years of audited financial statements of such businesses.

The new rule also eliminated the exclusion of SRCs from the accelerated filer and large accelerated filer definitions so as to maintain the current thresholds at which companies are subject to those requirements, including the timing of the filing of periodic reports and Section 404(b) of the Sarbanes-Oxley Act.  As a result, some registrants may qualify as both and SRC and an accelerated filer. 

Finally, the new rule includes minor changes to the cover pages of registration statements and periodic reports (to remove the parenthetical next to the “non-accelerated filer” definition), including Forms 10-K and 10-Q, as of the September 10, 2018 effective date of the amended rules.  A registrant should now check all applicable boxes, e.g., both the Smaller Reporting Company box and the Non-Accelerated Filer box, as appropriate.

The adopting release, including the list of the scaled disclosure requirements for SRCs and changes to the cover pages of SEC forms can be found here.

SEC Commissioner Calls for Changes to Discourage Insider Sales During Stock Buybacks

By Cortney Patterson and Paul William

In a June 2018 speech, SEC Commissioner Robert Jackson, Jr. took aim at insiders’ sales of stock during corporate stock buyback programs and called for an open comment period on SEC rules governing “safe harbors” for stock buybacks.  Jackson’s speech suggested he believed that executives who authorize stock buybacks and then sell their personal shares during such repurchase programs may act to undermine the incentive structure that is theoretically inherent to stock-based compensation – the creation of long-term, sustainable value.  His concern is that stock buybacks, which generally boost the current stock price, reflect a short-term focus at the expense of innovation and the generation of long-term shareholder value.

Jackson’s statement may have been in response to the latest proliferation of share repurchase programs in the U.S.  In the first quarter of 2018 alone, American corporations bought back $178 billion in stock.  As reported by Forbes, publicly-traded U.S. companies are currently on track to repurchase $1 trillion worth of their own shares in 2018.

The following results were reported from research conducted by Mr. Jackson’s staff, which studied 385 buybacks over a fifteen-month period prior to January 2018:

  • In about half of those buybacks, at least one executive, committee member or director of a public company sold shares in the month following the buyback announcement.
  • Twice as many companies have insiders selling in the eight days after a buyback announcement as sell on an ordinary day.
  • On average, in the days before a buyback announcement, insiders trade in relatively small amounts (less than $100,000 worth).
  • During the eight days following a buyback announcement, insiders on average sell more than $500,000 worth of stock each day.

Though Jackson’s study leaves many unanswered questions, his speech indicates that stock buyback rules may become a focus for the SEC.

Jackson proposed a dual approach to revising the SEC’s current buyback rules – expanded committee disclosure and limiting the application of existing stock buyback safe harbors.

Jackson recommended new procedures and requirements for compensation committees, essentially requiring them to review and approve the extent that insiders will be permitted to participate in a buyback.  Jackson’s proposal would also require disclose of the committee’s decision to investors, along with an explanation of why the decision is in the company’s long-term interests.  Following the committee’s decision and its disclosure, Jackson suggested that it may be appropriate to restrict the availability of the Rule 10b-18 safe harbor to any company that permits executives to sell stock following a stock buyback announcement.  Rule 10b-18 of the Securities Exchange Act of 1934 provides certainty from charges of illegal market manipulation for companies and their affiliated purchasers when the company or its affiliates repurchase the company’s shares of common stock in compliance with the Rule.  A board would be forced to choose between the certainty afforded stock repurchases made in compliance with Rule 10b-18 and denying insiders the right to sell shares earned as compensation.

Other data points highlight the growing focus on stock buybacks.  For example, in June 2018, 21 Democratic U.S. Senators asked the SEC to examine its current rules around stock buybacks and to revisit Rule 10b-18.  There has also been a trend for certain shareholder activists in recent years to submit shareholder proposals calling to exclude the impact of stock buybacks from performance metrics used in determining executive compensation.

Future debate may attempt to analyze other important avenues of inquiry, such as the impact of corporate stock ownership guidelines and the different roles of board members and executive officers in making decisions about stock buybacks.  While we wait, in light of the current attention being paid to the issue of share buyback programs by regulators and legislators alike, it may be prudent for directors to evaluate their companies’ current policies and practices, if any, with respect to stock repurchase programs and executive participation specifically.

Implications of In re Investors Bancorp on Outside Director Equity Compensation

By Robert Endicott and Laura Venn

Companies should consider a December 2017  Delaware Supreme Court decision, In re Investors Bancorp, Inc. Stockholder Litigation, when structuring equity incentive plans, as the case may result in additional challenges to director compensation.  The Delaware Supreme Court held that where (1) a stockholder-approved equity incentive plan allows significant discretion to the directors in awarding compensation under the plan and (2) stockholders properly allege that the directors breached their fiduciary duties when exercising such direction, the directors’ actions will be subject to “entire fairness” review, rather than the more deferential “business judgment” rule.  

Typically, the actions of the board of directors are subject to the business judgment rule when “a fully informed, uncoerced, and disinterested majority of stockholders approve the board’s authorized corporate action” – the so-called “ratification defense.”  The Delaware Supreme Court noted that the ratification defense has been recognized in matters involving three different types of stockholder-approved equity incentive plans: 

  • Specific awards to directors as approved by the stockholders;
  • Self-executing plans (i.e., the directors have no discretion when making the awards); and
  • Plans that allow directors to exercise discretion and determine the amounts and terms of awards after stockholder approval.

The plan in question in In re Investors Bancorp fell within the third category.  Prior to this case, a series of Delaware Chancery Court decisions suggested that directors could retain their discretion to make awards after stockholder plan approval, but that if such a plan contained “meaningful limits” on the awards directors could make to themselves, then the ratification defense could be successfully asserted (and the business judgement rule applied) if the awards were challenged.  In In re Investors Bancorp, the Delaware Supreme Court addressed this notion by articulating that the directors must exercise such discretion in accordance with their fiduciary duties. Therefore, even if stockholders approve the general parameters of an equity incentive plan, if stockholders can properly allege that the directors’ exercise of discretion within those parameters constituted a breach of their fiduciary duties, the directors then must demonstrate that their actions were entirely fair to the company. 

It is worth noting the particular facts of the case, as they arguably are outside the parameters of “meaningful limits.” As a result, the implications of the holding are not entirely clear for stockholder approved equity incentive plans that allow director discretion going forward.  First, prior to approval of the plan, the stockholders were told that awards under the plan would be made to incentivize future performance; however, the board instead used the awards to reward past efforts.  Second, the rewards were 10 to 20 times higher than the compensation paid to the directors the prior year, 10 times higher than director compensation at similarly sized companies that year, and 8 times higher than director compensation at much larger companies that year.  Third, the CEO received an award under the plan that was 3,683% higher than the median award other companies granted their CEOs, and the COO received an award 5,384% higher than the median award to executives at other companies.

Despite the “inordinately” high awards that set the facts of this case apart, boards of directors should still implement best practices when structuring equity incentive plans in light of the In re Investors Bancorp decision.  Such practices include: 

  • Implementing equity incentive plans that provide for specific awards to directors or that are self-executing to ensure the availability of the ratification defense in the event a stockholder challenge to the plan.
  • Structuring equity incentive plans that allow for director discretion to include specific limits on amounts of cash and equity compensation that each director may be awarded annually in order to minimize director discretion.
  • Establishing a robust process for board determinations of awards, as well as maintaining a clear and detailed record that documents how the board determined such awards and how the awards compare to past compensation and peer companies’ compensation.
  • Increased scrutiny by the board’s compensation consultant of the equity incentive plan to determine the appropriate amount of director cash and equity compensation.

SEC Adopts Amendments to Simplify and Update Disclosure Requirements

On August 17, 2018, the SEC adopted amendments to eliminate or modify certain disclosure requirements that have become redundant, overlapping, outdated or superseded in light of other SEC rules, GAAP or changes in the information environment. The changes affect several disclosure requirements in Regulations S-K and S-X and various SEC forms. The SEC also referred certain proposed changes to the FASB for further consideration. Please see our Client Alert here for additional information.