Yearly Archives: 2020

Statement by Chairman Clayton on Strengthening the SEC’s Whistleblower Program

Jay Clayton is Chairman of the U.S. Securities and Exchange Commission. This post is based on Chairman Clayton’s recent public statement. The views expressed in this post are those of Mr. Clayton and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Good morning. This is an open meeting of the U.S. Securities and Exchange Commission, under the Government in the Sunshine Act. This morning, we have two items on the agenda.

Before we begin with today’s agenda, I want to note the passing of Justice Ruth Bader Ginsburg and the joint statement of the Commission recognizing her as a giant of the law who authored many opinions that meaningfully impacted the lives of all Americans, including our nation’s investors. Of particular relevance to our work at the Commission was United States v. O’Hagan, which upheld the misappropriation theory of insider trading and has served as a critical element of our securities law framework.

At today’s meeting, we are considering amendments to the rules governing the Commission’s whistleblower program. Over the past ten years, the whistleblower program has been a critical component of the Commission’s efforts to detect wrongdoing and protect investors and the marketplace, particularly where fraud is well-hidden or difficult to detect. Enforcement actions from whistleblower tips have resulted in more than $2.5 billion in ordered financial remedies, including more than $1.4 billion in disgorgement of ill-gotten gains and interest, of which almost $750 million has been, or is scheduled to be, returned to harmed investors.

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Statement by Commissioner Caroline Crenshaw on Whistleblower Program Rule Amendments

Caroline Crenshaw is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent public statement. The views expressed in the post are those of Commissioner Crenshaw, and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

The remarkable Justice Ginsburg once wrote that the Commission possessed a “robust whistleblower program designed to motivate people who know of securities law violations to tell the SEC”. [1] Our nation has a long history of motivating whistleblowers to come forward, dating all the way back to 1777, when the Continental Congress passed our first whistleblower protection law. [2] And over time our laws have evolved to not just protect whistleblowers, but also to incentivize and encourage them to take personal and professional risks to help our government stop wrongdoing.

I am proud of the Commission’s whistleblower program. In 10 years, we have received more than 1,500 submissions, resulting in more than $2.6 billion in financial remedies. Over the last two years, the Commission has worked to streamline and accelerate the awards determination process. To date, we have paid more than $523 million to whistleblowers who risked their livelihoods to do the right thing. I want to thank the Commission’s staff and the Office of the Whistleblower for making that happen.

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Letter to House Subcommittee by SEC Chairman Jay Clayton

Jay Clayton is Chairman of the U.S. Securities and Exchange Commission. This post is based on his letter to the House Subcommittee on Investor Protection, Entrepreneurship, and Capital Markets Chairman Brad Sherman. The views expressed in this post are those of Mr. Clayton and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

I appreciated our discussion last month on a number of policy issues related to good corporate hygiene, including issues related to executive compensation and trading when in possession of material non-public information. I believe you and I agree generally on the importance of a robust control environment for senior executives and on a number of specific, related points, and wanted to provide you with more detail regarding my views.

Importance of a Strong Control Environment.

As I have emphasized to market participants on many occasions, the importance of good corporate hygiene cannot be overstated, nor can the importance of related controls designed to prevent not only insider trading but also, ideally, the appearance of impropriety or misalignment of interests. This perspective and related controls are especially important in times of heightened market volatility and uncertainty. In such circumstances, the potential for executives to possess material non-public information increases as we have witnessed during this time of COVID-19-induced economic and market stress.

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Statement by Commissioner Peirce on Procedural Requirements and Resubmission Thresholds under Rule 14a-8

Hester M. Peirce is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent statement at an open meeting of the SEC. The views expressed in this post are those of Ms. Peirce and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Thank you, Chairman Clayton. I support today’s [Sept. 23, 2020] amendments to certain procedural requirements and the resubmission thresholds under the shareholder proposal rule. While it can be difficult to discern the signal from the noise around today’s amendments, the reality of the situation is that we are making simple, sensible, and long over-due changes to the shareholder proposal rule.

Shareholder proposals are costly: they require the thoughtful attention of management and the board, procurement of legal advice, engagement with shareholder proponents and SEC staff, the printing and mailing of proposal materials, and vote tabulations. The shareholder-proponent does not bear these costs; the company and—by extension—all of its shareholders shoulder them. Today’s amendments acknowledge this disconnect and recalibrate the ownership thresholds to ensure that a shareholder-proponent has a meaningful economic stake or investment interest in the company before she is able to impose such costs on the company and its shareholders. These changes, in other words, help to ensure that the shareholder-proponent’s interests are aligned with those of her fellow shareholders.

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Statement by Commissioner Crenshaw on Procedural Requirements and Resubmission Thresholds under Rule 14a-8

Caroline Crenshaw is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent public statement. The views expressed in the post are those of Commissioner Crenshaw, and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

Today [Sept. 23, 2020] the majority of the Commission is approving amendments to the procedures governing shareholder proposals. The amendments are described as a “modernization,” [1] designed to reduce costs for corporations. Even if I agreed that was necessary, I cannot agree with the method.

Before today, a shareholder needed to hold only $2,000 worth of a company’s securities for one year in order to submit a proposal for voting. This threshold allowed a broad array of investors to “speak” with a company and its shareholders. After today’s change, shareholders must own $25,000 worth of securities to have that same say. [2] This is a high threshold for the right to put to a vote something as anodyne as a proposal to require a majority vote to elect board members. [3] In addition to raising the price in the first instance, the rule also raises the bar for resubmitting proposals, making it significantly harder for those proposals to gain any traction. [4]

To be clear, I am not suggesting that every individual investor’s idea is a good one. What I am suggesting is that there are benefits, and not just costs, to giving corporate boards the opportunity to engage with shareholders. Shareholder proposals provide a proven, effective pathway for sending good ideas to management, while allowing bad ideas to fall away. [5] After today, fewer of those ideas will surface and those conversations will not occur. This is because we have shut them down. This is problematic for multiple reasons.

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Weekly Roundup: September 18–24, 2020


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This roundup contains a collection of the posts published on the Forum during the week of September 18–24, 2020.

SEC Expands Definition of “Accredited Investor”


Remarks by Commissioner Peirce on The Role of Asset Management in ESG Investing


How Boards Can Prepare for Unplanned Catastrophic Events


Direct Listings 2.0—Primary Direct Listings


Expanding Opportunities for Investors and Retirees: Private Equity


ESG Disclosures: Frameworks and Standards Developed by Intergovernmental and Non-Governmental Organizations



Six Ways Boards are Enhancing Their Evaluations and Related Disclosures


A Brief Response Regarding Stakeholder Governance


Federal Forum Provisions May Be Permitted


The Seven Sins of ESG Management


Remarks by Commissioner Lee at the Council of Institutional Investors Fall 2020 Conference



Statement by Commissioner Lee on the Amendments to Rule 14a-8


Statement by Chairman Clayton on Modernizing the Shareholder Proposal Framework for the Benefit of All Shareholders

Jay Clayton is Chairman of the U.S. Securities and Exchange Commission. This post is based on Chairman Clayton’s recent public statement. The views expressed in this post are those of Mr. Clayton and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Over the past three years, we have engaged in a number of retrospective reviews of the rules that implement our securities law framework. These reviews often, but not always, have yielded the unassailable conclusion that modernization is necessary and appropriate. This should come as no surprise given how much has changed in the past 20, 30, 40 or more years since key rules were last comprehensively reviewed. At a macro level, I note that interaction among market participants, including trading, disclosures and other information-based interactions, is now largely electronic, adding tremendous efficiencies but also new challenges. Virtually all trading in equities is electronic. The days of disclosure reports and proxy materials being filed in paper form, but not electronic form, with the Commission are well behind us. In addition, as I have noted at other recent open Commission meetings, our Main Street investors generally have shifted from investing directly in our public companies to investing through mutual funds and ETFs. [1] For many small and medium-sized companies, our private capital markets are the only reasonable means for obtaining financing to grow their businesses. As I often say, the core principles are the same as they were in the 1930s, but the landscape is far different.

As just a few examples of our modernization efforts, I note our recent amendments to the accredited investor definition, where for the first time we recognized that individuals who meet clear, established measures of financial sophistication should be allowed to participate in our private capital markets, rather than limiting participation to only those who meet blunt net worth or income tests. We also recently updated the business, legal proceedings and risk factors disclosure requirements under Regulation S-K. As part of those amendments, the Commission modernized our disclosure requirements to recognize that human capital accounts for—and drives—long-term business value at many companies in many different ways, much more so than it did 30 years ago.

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Statement by Commissioner Lee on the Amendments to Rule 14a-8

Allison Herren Lee is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on Commissioner Lee’s recent public statement. The views expressed in the post are those of Commissioner Lee, and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

The final rules represent the capstone in a series of policies that will dial back shareholder oversight of management at the companies they own. Last year, the Commission adopted guidance on proxy advisors and proxy solicitation that made it more difficult and costly for investment advisers to vote shares on behalf of their clients in reliance on independent proxy voting advice. [1] Then, earlier this year, the Commission adopted new rules and additional guidance related to proxy advisors that injected further cost and complexity into the voting process and mandated greater issuer involvement in proxy voting decisions. [2] Having made it more difficult for shareholders to exercise their voting rights, the Commission now adopts amendments that will narrow access to another important mechanism for shareholder oversight: the shareholder proposal process. These actions collectively put a thumb on the scale for management in the balance of power between companies and their owners. [3]

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Statement by Commissioner Roisman on Procedural Requirements and Resubmission Thresholds under Exchange Act Rule 14a-8

Elad L. Roisman is a Commissioner at the U.S. Securities and Exchange Commission. The following post is based on Commissioner Roisman’s recent public statement. The views expressed in this post are those of Mr. Roisman and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Change is difficult. Especially when something has been a certain way for as long as you can remember. Twenty-two years have passed since the Commission last updated Rule 14a-8. In particular, the submission threshold was last substantively reviewed and amended in 1998, and the resubmission thresholds have not been updated since 1954. Yet, over the last several decades, not only has the composition of public company ownership changed drastically, but the ways in which shareholders communicate with companies, and with each other, have evolved with the times as well. I believe that the only constant in our markets is the fact that they will change. It is a regulator’s job to adjust rules to respond to, if not to anticipate, such dynamics. It is our responsibility to adjust these rules to reflect our current markets, and the time is now.

The thresholds in Rule 14a-8 were always intended to strike a balance. On the one hand the rule offers a powerful tool for a shareholder to bring attention to his or her particular proposal. But, on the other hand, each proposal comes at a cost, since other shareholders bear the expense associated with including a proposal in a company’s proxy statement and they must devote time and attention to considering each proposal. The amendments we consider today aim to strike a better balance by ensuring that a shareholder who submits a proposal to a public company has interests that are more likely to be aligned with the other shareholders who bear the expense.

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Remarks by Commissioner Lee at the Council of Institutional Investors Fall 2020 Conference

Allison Herren Lee is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent remarks at the Council of Institutional Investors Fall 2020 Conference. The views expressed in the post are those of Commissioner Lee, and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

Thank you, Amy [Borrus], for the introduction and for the invitation to speak at your conference. I’m pleased to be here with you all today [Sept. 22, 2020], and want to take this opportunity to thank you and your members for your engagement in our rulemaking process. Your comment letters are unfailingly thorough, analytical, and insightful. They provide a critically important investor perspective on our policies. I’m very grateful for your efforts.

Today I want to talk you about a topic that has dominated my thoughts recently, and I’m sure many of yours as well: diversity and inclusion. I know that many of you have long advocated for greater diversity on corporate boards and elsewhere. Recent events have triggered an unprecedented national conversation on racial injustice that also highlights the urgency of ensuring diverse perspectives and representation at all levels of decision-making in our country. At the SEC, a number of recent rulemakings have also pushed this issue to forefront. Our recent adoption of amendments to Regulation S-K, for example, took a step forward by adding human capital as a broad topic for possible disclosure, but declined to require, among other things, disclosure of diversity data—even data that most companies are already required to keep under Equal Employment Opportunity Commission (EEOC) rules. Our pending proposal under Rule 14a-8 also has implications for promoting diversity and inclusion because it affects shareholder proposals which often cover this topic. The topic has also been prominent on the agenda of recent SEC advisory committee meetings, including last week’s Asset Management Advisory Committee meeting during which participants urged the SEC to require diversity disclosure for public companies and registered entities. [1] And I’m pleased to see that the topics of diversity and inequality are on your agenda for this conference as well.

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