Yearly Archives: 2012

Supervisory and Company-Run Stress Test Requirements

Posted by H. Rodgin Cohen, Sullivan & Cromwell LLP, on
Thursday, November 15, 2012
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H. Rodgin Cohen is a partner and senior chairman of Sullivan & Cromwell LLP focusing on acquisition, corporate governance, regulatory and securities law matters. This post is an abridged version of a Sullivan & Cromwell publication by Janine Guido; the full version, including footnotes, is available here.

Summary

In October 2012, the Board of Governors of the Federal Reserve System (the “FRB”) published in the Federal Register final rules implementing the requirements of Section 165(i)(1) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) concerning supervisory stress tests to be conducted by the FRB (the “Annual Supervisory Stress Test Rule”) and Section 165(i)(2) of Dodd-Frank regarding semi-annual company-run stress tests (the “Semi-Annual Company-Run Stress Test Rule,” and, together with the Annual Supervisory Stress Test Rule, the “Stress Test Rules”). The Stress Test Rules apply to bank holding companies (“BHCs”) with total consolidated assets of $50 billion or more (“Large BHCs”) and nonbank financial companies designated by the Financial Stability Oversight Council (“Designated SIFIs,” and together with Large BHCs, “Covered Companies”). Concurrent with the Stress Test Rules, the FRB, Office of the Comptroller of the Currency (“OCC”) and Federal Deposit Insurance Corporation (“FDIC,” and together with the FRB and OCC, the “Agencies”) published separate final rules implementing the requirements of Section 165(i)(2) of Dodd-Frank regarding annual company-run stress tests (the “Annual Company-Run Stress Test Rules”) for supervised entities (BHCs, savings and loan holding companies (“SLHCs”) and depository institutions) with average total consolidated assets greater than $10 billion other than Covered Companies (together “Covered Institutions”). The Stress Test Rules and Annual Company-Run Stress Test Rules have substantial implications for capital planning, including capital distributions.

The specific application of the rules generally depends on the type of entity involved (for example, BHC, depository institution, or SLHC), the size of the institution and its applicable regulator. In summary, the requirements of the Stress Test Rules and Annual Company-Run Stress Test Rules are as follows:

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Business Roundtable and the Future of SEC Rulemaking

Posted by Jill Fisch, University of Pennsylvania, on
Thursday, November 15, 2012
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Jill E. Fisch is a Professor of Law at the University of Pennsylvania Law School.

The Securities and Exchange Commission has suffered a number of recent setbacks in areas ranging from enforcement policy to rulemaking. One of the most serious was the DC Circuit’s 2011 decision in Business Roundtable v. SEC, in which the court invalidated the SEC’s proxy access rule, Rule 14a-11, on the basis that the SEC had failed to conduct an adequate cost-benefit analysis. By imposing an onerous, and possibly insurmountable procedural burden, the decision threatens to paralyze rulemaking by the SEC and other administrative agencies. The effect is particularly troubling in light of the heavy rulemaking obligations imposed by Dodd-Frank and the JOBS Act.

In my article, The Long Road Back: Business Roundtable and the Future of SEC Rulemaking (forthcoming in Seattle University Law Review), I critically evaluate the Business Roundtable decision. Specifically, I argue that, although Rule 14a-11 suffered from a number of flaws, flaws I have noted in other work (see Fisch, The Destructive Ambiguity of Federal Proxy Access, 61 Emory L. J. 435 (2012)), the deficiencies in SEC’s rule-making that led to the adoption of Rule 14a-11 cannot accurately be ascribed to inadequate economic analysis. Nor is the demanding standard imposed by DC Circuit’s decision a product of the statutory constraints on SEC rulemaking. Rather it stems from the court’s skepticism about proxy access and the SEC’s policymaking generally.

The SEC’s inability to defend its proxy access rule against attack was, in part, a product of two important constraints on its policy formation – the notice and comment requirements of the Administrative Procedure Act and the Government in the Sunshine Act. Although commentators have defended both these requirements in terms of transparency and democratic values, they sacrifice consensus building as well as decision-making efficiency, and they allow for the increased influence of political forces and interest groups. These sacrifices are of particular concern in the context of SEC rulemaking and, I argue, were at the heart of a problematic Rule 14a-11.

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Let Shareholders Know How Their Money Is Spent

Posted by the Harvard Law School Forum on Corporate Governance & Financial Regulation, on
Wednesday, November 14, 2012
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Editor’s Note: Lucian Bebchuk is Professor of Law, Economics, and Finance at Harvard Law School. Bebchuk served as co-chair of the Committee on Disclosure of Corporate Political Spending, which filed a rulemaking petition concerning political spending, discussed on the Forum here and here. Posts discussing his articles on corporate political spending, Corporate Political Speech: Who Decides?, and Shining Light on Corporate Political Spending, both co-authored with Robert Jackson, are available here.

My most recent New York Times Dealbook column, published today, focuses on the expected SEC consideration of the rulemaking petition urging adoption of rules that would require public companies to disclose information about their political spending. As Robert Jackson and I reported in a recent post, SEC officials indicated last week that the Division of Corporate Finance is currently considering the petition and looking into whether to recommend that the SEC issue such rules.

The column argues that the case for adopting such rules is very strong. In future elections, shareholders of public companies should not be left in the dark on whether and how their money is spent on politics.

The column, titled Let Shareholders Know How Their Money Is Spent, is available here.

The Expanded Role of Economists in SEC Rulemaking

Posted by the Harvard Law School Forum on Corporate Governance & Financial Regulation, on
Wednesday, November 14, 2012
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Editor’s Note: The following post comes to us from Craig M. Lewis, chief economist and director of the Division of Risk, Strategy, and Financial Innovation at the U.S. Securities and Exchange Commission. This post is based on Mr. Lewis’s remarks at the SIFMA Compliance & Legal Society Luncheon, available here. The views expressed in this post are those of Mr. Lewis and do not necessarily reflect those of the Securities and Exchange Commission, the RSFI division, or the Staff.

I would like to talk about economic analysis in support of Commission rulemakings, and, in particular, the role of economists from the Division of Risk, Strategy, and Financial Innovation (or “RSFI”) and the recently issued guidance on economic analysis.

Background on the Division of Risk, Strategy, and Financial Innovation

Without going into a description of the history of RSFI — which would not take long in any event, as the Division is only three years old — it may be useful to set the stage for how, in my mind, the Division fits into the overall structure of the Commission.

First, who are we? Often referred to as the SEC’s “think tank,” RSFI consists of highly trained staff from a variety of academic disciplines with a deep knowledge of the financial industry and markets. For example, we currently have over 35 PhD financial economists on staff, and hope to hire more this fall. We also have statisticians, financial engineers, programmers, MBAs, and other experts, including individuals with decades of relevant industry experience.

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Building Relationships with Your Shareholders Through Effective Communication

Posted by James D.C. Barrall, Latham & Watkins LLP, on
Tuesday, November 13, 2012
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James D. C. Barrall is a partner at Latham & Watkins LLP and co-chair of the Benefits and Compensation Practice. This post is based on a Latham & Watkins Corporate Governance Commentary.

Introduction

In recent years, shareholders of US public companies have increasingly invited dialogue with management, sometimes even demanding personal interaction with directors. This trend is part of a new paradigm in the corporate governance realm. Historically, despite some management engagement with shareholders, companies have seen little in the way of direct dialogue between shareholders and members of the board of directors. For most public companies, governance strategies have seldom included systematic engagement with shareholders beyond quarterly earnings calls, investor conferences and traditional investor relations efforts.

That was then, this is now. More than ever before, institutional shareholders are aggressively exerting their influence in the name of holding companies and management accountable. Emboldened (or pressured) by recent events — high-profile corporate governance and executive compensation controversies, the financial collapse and public criticism of pay disparities — these shareholders increasingly seek to influence board-level decisionmaking, often deploying incendiary buzzwords such as “corporate mismanagement,” “excessive risk taking,” “pay-for-failure” and the like. All told, the new paradigm represents a significant shift for most public companies.

In this Commentary, we discuss:

  • The current state of corporate governance and signposts along the way to the existing state of affairs
  • How and when public companies can benefit from shareholder engagement
  • The components of an effective shareholder engagement program

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Taxing Control

Posted by June Rhee, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Tuesday, November 13, 2012
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The following post comes to us from Richard M. Hynes, Professor of Law at University of Virginia School of Law.

Early corporate law scholarship argued both that anti-takeover devices are inefficient (they reduce the value of the firm) and that firms adopt efficient governance terms before they make their initial public offering. Some of this scholarship asserted that firms go public without anti-takeover devices and adopt them later when agency costs are higher. However, subsequent research revealed that most firms adopt anti-takeover devices before completing their initial public offerings. For example, over eighty-six percent of firms that have gone public in 2012 have a staggered board of directors, and both Google and Facebook chose dual-class capital structures that allow the founders to retain voting control disproportionate to their economic stake.

The literature offers a number of explanations for this apparent puzzle. Capital market imperfections may prevent initial public offering prices from reflecting differences in corporate governance terms. Firms may choose inefficient terms due to bad legal advice or because of frictions in the market for financing prior to the initial public offering. Anti-takeover protections could be efficient after all, at least for some firms, because they correct for myopic investors or some other problem. Finally, managers may choose anti-takeover provisions to signal something about their firms. In an essay forthcoming in the Journal of Corporation Law I offer a very different explanation, one based on the tax code.

My argument begins with a variant of one of the existing explanations for anti-takeover protections. The heart of the argument is that managers are not driven solely by a desire for material gain but derive some happiness or utility from the control they exercise over their firm. To the extent that managers derive happiness from control, they may not choose governance terms that maximize the dollar value of the firm. However, unless there is some contracting failure, they will still choose efficient terms — terms that maximize the total value of the firm (the dollar value plus the control value).

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The Economic Consequences of Proxy Advisor Say-on-Pay Voting Policies

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Monday, November 12, 2012
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David Larcker is the James Irvin Miller Professor of Accounting at Stanford University.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) imposed a requirement that public companies allow shareholders the opportunity to cast an advisory vote on executive compensation (typically annually). This requirement is commonly referred to as say-on-pay (SOP). Shareholders that disagree with a firm’s executive compensation program can cast anon-binding (or precatory) vote “against” the management compensation program disclosed in the proxy statement for the annual shareholder meeting. Presumably firms with a substantial proportion of negative votes will make appropriate changes to their compensation program.

In the paper, The Economic Consequences of Proxy Advisor Say-on-Pay Voting Policies, which was recently made publicly available on SSRN, my co-authors (Allan McCall of Stanford University and Gaizka Ormazabal of the University of Navarra) and I examine the changes that boards of directors make in anticipation of the initial SOP votes and the shareholder reaction to those changes. Since the SOP vote is advisory, boards are under no obligation to make changes pursuant to its outcome. A board may simply wait to see the outcome of the vote before deciding whether changes to compensation programs are warranted. However, if a board anticipates substantial opposition to its executive compensation program and believes that this opposition is costly to shareholders (e.g., because it invites derivative lawsuits, negative press, regulatory scrutiny, or distracts executives and employees), it might rationally take preemptive actions to decrease the probability of receiving negative votes. In such a setting, the board of directors will be interested in anticipating whether institutional investors (who hold the majority of outstanding shares) will vote for or against a SOP proposal.

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Protecting Investors through Independent, High Quality Audits

Posted by the Harvard Law School Forum on Corporate Governance & Financial Regulation, on
Monday, November 12, 2012
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Editor’s Note: The following post comes to us from Jeanette M. Franzel, board member of the Public Company Accounting Oversight Board. This post is based on Ms. Franzel’s remarks at the NACD 2012 Board Leadership Conference, available here. The views expressed in this post are those of Ms. Franzel and should not be attributed to the PCAOB as a whole or any other members or staff.

I want to commend the NACD on its mission to “advance exemplary board leadership” and on the extensive training and resources devoted to leading practices for board members, including audit committees and other specialized board committees.

The principal elements of the Sarbanes-Oxley Act — strengthening the role of audit committees, establishing the PCAOB to oversee auditors, and enhancing auditor independence and corporate accountability — aligned the interests of the PCAOB and audit committees. We both focus on auditor oversight to help ensure independent, high quality, and reliable audits to protect investors.

Recent questions about financial reporting and auditing, as well as related regulatory initiatives in the U.S. and around the world, highlight the benefits of and need for greater communications between regulators and audit committees.

Today, following the recent financial crisis, we find ourselves once again evaluating how best to protect investors through high quality financial reporting and reliable audits.

As you know, in pursuing our core mission of protecting investors through audit oversight, the Board has a number of initiatives to consider improvements in major areas of audit practice. I’d like to provide an update on several of the Board’s key initiatives that have a direct impact on audit committees, including our concept release on auditor independence and audit firm rotation, the new auditing standard on communications with audit committees, and our recent informational release that deals with communications with audit committees about PCAOB inspection results.

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Final Rules from the Federal Banking Agencies

Posted by Dwight C. Smith, Morrison & Foerster LLP, on
Sunday, November 11, 2012
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The following post comes to us from Dwight Smith, partner focusing on bank regulatory matters at Morrison & Foerster LLP, and is based on a Morrison & Foerster memorandum by Mr. Smith and Charles Horn.

On October 19, 2012, the Office of the Comptroller of the Currency (“OCC”), the Federal Deposit Insurance Corporation (“FDIC”) and the Federal Reserve Board (“Board”) approved final rules, which were proposed for comment in January of this year, [1] implementing the Dodd-Frank Act’s company-run stress testing requirements for all insured depository institutions with total consolidated assets of $10 billion or more. [2] In addition, the Board has simultaneously published final stress-testing rules, covering the Dodd-Frank Act’s requirements for Board-run and
company-run stress-testing requirements for banking organizations with more than $50 billion in total consolidated assets. [3]

Most of the changes between the proposed rules and the final rules involve the procedures and timelines, rather than the substance, of the required stress-testing. Highlights of the regulatory actions include:

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Regulation of the Investment Advisers

Posted by Daniel M. Gallagher, Commissioner, U.S. Securities and Exchange Commission, on
Saturday, November 10, 2012
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Editor’s Note: Daniel M. Gallagher is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on a statement from Commissioner Gallagher; the full speech, including footnotes, is available here. The views expressed in the post are those of Commissioner Gallagher and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

In January 2011, the Commission, with Commissioners Casey and Paredes dissenting, issued a staff report on a study, conducted pursuant to Section 913 of the Dodd-Frank Act, of the effectiveness of the existing regulatory standards of care that apply when brokers and investment advisers provide personalized investment advice to retail customers. In addition to mandating that study, Section 913 authorized, but did not require, the Commission to adopt rules establishing a duty of care for brokers identical to that which applies to investment advisors — in other words, a uniform fiduciary duty for brokers and investment advisors — and to undertake further efforts to harmonize the two regulatory regimes.

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