Monthly Archives: November 2015

SEC Rulings on Shareholder Proposals and Ordinary Business Rule

Elizabeth Ising is a partner and Co-Chair of the Securities Regulation and Corporate Governance practice group at Gibson, Dunn & Crutcher LLP. This post is based on a Gibson Dunn client alert by Ms. Ising, Sarah E. Fortt, Julia LapitskayaRonald O. MuellerKasey Levit Robinson, and Lori Zyskowski.

On October 22, 2015, the Securities and Exchange Commission’s (“SEC” or “Commission”) Division of Corporation Finance (the “Division”) issued Staff Legal Bulletin No. 14H (“SLB 14H”), setting forth a dramatically different standard for when it will concur that a shareholder proposal that conflicts with a company proposal can be excluded from the company’s proxy statement under Rule 14a-8(i)(9). The Division also reaffirmed its views on the application of the “ordinary business” standard in Rule 14a-8(i)(7). SLB 14H is available here.

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Making Capital Formation Work for Smaller Companies and Investors

Luis A. Aguilar is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on Commissioner Aguilar’s recent public statement; the full text, including footnotes, is available here. The views expressed in the post are those of Commissioner Aguilar and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

Small businesses are vital to our nation’s economic growth and well-being. In fact, our nation’s small business owners create almost two out of every three new jobs and employ more than half of the U.S. workforce. It is therefore important to provide opportunities for entrepreneurs and investors to come together and put capital to productive uses through the development of new ideas, products, and services that make America stronger and create new jobs that bring financial security.

Ultimately, the success of small businesses depends on their ability to access capital. To that end, because many small businesses are thought to have more difficulty than established businesses in getting traditional loans, Congress has provided the Commission with authority to promulgate rules to facilitate access by small businesses to financing from the capital markets.

In order for these rules to be successful, and, just as critically, sustainable, the Commission is tasked with creating an ecosystem for capital formation that works for small businesses and investors alike. Thus, the challenge is to develop a system that enables businesses to raise capital in a cost-effective way and, at the same time, provide ways to benefit and protect investors. After all, without investors, there can be no capital formation.

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Seven Myths of Boards of Directors

David Larcker is Professor of Accounting at Stanford University. This post is based on an article authored by Professor Larcker and Brian Tayan, Researcher with the Corporate Governance Research Initiative at Stanford University. Related research from the Program on Corporate Governance includes The Costs of Entrenched Boards by Lucian Bebchuk and Alma Cohen, and How Do Staggered Boards Affect Shareholder Value? Evidence from a Natural Experiment by Alma Cohen and Charles C. Y. Wang.

Corporate governance experts pay considerable attention to issues involving the board of directors. Because of the scope of the board’s role and the vast responsibilities that come with directorship, companies are expected to adhere to common best practices in board structure, composition, and procedures. Our paper, Seven Myths of Boards of Directors, which was recently made publicly available on SSRN, reviews seven commonly accepted beliefs about boards of directors that are not substantiated by empirical evidence.

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Opening Remarks at Equity Market Structure Advisory Committee Meeting

Mary Jo White is Chair of the U.S. Securities and Exchange Commission. The following post is based on Chair White’s opening remarks at the October 2015 Meeting of the Equity Market Structure Advisory Committee, available here. The views expressed in this post are those of Chair White and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

The discussions at our inaugural meeting underscored for me how invaluable this Committee’s insights are as the Commission continues its efforts to ensure that the equity markets optimally meet the needs of investors—both large and small—and issuers of all sizes. With the careful consideration, input, and approval of each of the Commissioners, we have been able to assemble a diverse group of widely respected experts to effectively represent the views of key stakeholders in the equity markets. And I thank each of you again for your service.

Since we announced the formation and membership of the Committee in January, we have had requests from other market participants with valuable perspectives to join the Committee; some of those requests have been reiterated recently. I wish we could accommodate them all. While this was not practical, to ensure transparency of our efforts and representation of all viewpoints on a committee of this kind, we have taken a number of additional steps to broaden our means of obtaining input. These include presentations at all Committee meetings by expert panels; the independent provision of relevant data, analysis, and public briefings by Commission staff for feedback from all interested parties; an open comment file; and a transparent public agenda. These mechanisms are designed to ensure that the Commission and the Advisory Committee benefit from the full range of perspectives on important market structure topics.

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Evolving Equity Markets Require Constant Attention

Luis A. Aguilar is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on Commissioner Aguilar’s recent address at a Meeting of the Equity Market Structure Advisory Committee. The full text, including footnotes, is available here. The views expressed in the post are those of Commissioner Aguilar and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

I want to extend a warm welcome to the members of the Equity Market Structure Advisory Committee (“Committee”). I appreciate the work that you do and, in turn, how this work informs the Commission’s efforts to fulfill its mission. I also want to welcome everyone in the audience, whether participating in person or via the internet.

Well, if we needed more proof of the importance of this Committee, we’ve gotten it. Although, it’s been only five months since this Committee’s first meeting, we have already witnessed two major market disruptions. The first was a software glitch in July that halted trading at one major exchange for several hours. That event highlighted a glaring shortcoming in our current market infrastructure, specifically, the fact that the primary exchanges still have no back-up plan for their opening and closing auctions. This was especially disconcerting because in November 2013, the exchanges issued a public statement acknowledging the importance of developing backup plans for their critical functions—including their opening and closing auctions.

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Corporate Power Ratchet

Leo E. Strine, Jr. is Chief Justice of the Delaware Supreme Court, the Austin Wakeman Scott Lecturer on Law and a Senior Fellow of the Harvard Law School Program on Corporate Governance. This post is based on Chief Justice Strine’s recent essay, Corporate Power Ratchet: The Courts’ Role in Eroding “We the People’s” Ability to Constrain Our Corporate Creations forthcoming in the Harvard Civil Rights-Civil Liberties Law Review and issued earlier as a working paper of the Harvard Law School Program on Corporate Governance. Related research on corporate political spending from the Program on Corporate Governance includes Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History, and Conservative Collision Course?: The Tension between Conservative Corporate Law Theory and Citizens United, both by Leo Strine and Nicholas Walter (discussed on the Forum here and here), and Shining Light on Corporate Political Spending and Corporate Political Speech: Who Decides?, both by Lucian Bebchuk and Robert Jackson (discussed on the Forum here and here).

Leo Strine, Chief Justice of the Delaware Supreme Court, the Austin Wakeman Scott Lecturer on Law and a Senior Fellow of the Harvard Law School Program on Corporate Governance, recently issued an essay that is forthcoming in the Harvard Civil Rights-Civil Liberties Law Review. The essay, titled Corporate Power Ratchet: The Courts’ Role in Eroding “We the People’s” Ability to Constrain Our Corporate Creations, is available here. The abstract of Chief Justice Strine’s essay summarizes it as follows:

At the beginning of our nation and throughout much of our history, corporations, as the creation of society, were seen as distinctive from human citizens. Human beings were born with certain inalienable rights that government could not take away. By contrast, corporations were the opposite of Lockean-Jeffersonian citizens, in the sense that they had only such rights as society gave them. Under this understanding, society could charter corporations and benefit from their wealth-creating potential while reserving for itself the right to limit corporate activities through externality-reducing legislation and other means so as to protect the public interest.

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Recap of the 2015 Proxy Season

Avrohom J. Kess is partner and head of the Public Company Advisory Practice at Simpson Thacher & Bartlett LLP. This post is based on a Simpson Thacher presentation by Mr. Kess, Yafit Cohn, Arthur B. Crozier and Lissa Perlman. The complete presentation is available here.

Simpson Thacher & Bartlett LLP recently released a PowerPoint deck, titled “Recap of the 2015 Proxy Season: What Happened, Lessons Learned and Looking Ahead to 2016.”  The deck (available here) provides an overview of the 2015 proxy season, as well as in-depth analysis regarding key developments, proposals and trends from the proxy season.

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Getting Ready for Proxy Access

Nicolas Grabar is a partner at Cleary Gottlieb Steen & Hamilton LLP focusing on international capital markets and securities regulation. This post is based on a Cleary Gottlieb publication by Mr. Grabar & associate Leah LaPorte Malone. Related research from the Program on Corporate Governance about proxy access include Lucian Bebchuk’s The Case for Shareholder Access to the Ballot and The Myth of the Shareholder Franchise (discussed on the Forum here), and Private Ordering and the Proxy Access Debate by Lucian Bebchuk and Scott Hirst (discussed on the Forum here).

Proxy access will be a leading issue in the 2016 proxy season, and now is the time to make a plan. We have a detailed deck on these questions, available here, but in a nutshell this is what’s happening:

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