Securities Mosaic® Blogwatch
July 23, 2014
Delaware Public Benefit Corporations 90 Days Out: Who's Opting In?
by June Rhee

Editor's Note: The following post comes to us from Alicia E. Plerhoples at Georgetown University Law Center. This post is part of the Delaware law series, which is cosponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

On August 1, 2013, amendments to the Delaware General Corporation Law (DGCL) became effective, allowing entities to incorporate as a public benefit corporation, a new corporate form that requires managers to produce a public benefit and balance shareholders' financial interests with the best interests of stakeholders materially affected by the corporation's conduct.

In my paper, Delaware Public Benefit Corporations 90 Days Out: Who's Opting in?, I present empirical research on the companies that adopted the Delaware public benefit corporation form within the first three months of the effective date of the amended DGCL.

My research shows that 55 public benefit corporations incorporated or converted from other entity types within the first three months of the effective date of the amendments to the DGCL. Based on publicly available information and documents such as corporate charters, I analyze these first 55 public benefit corporations with respect to the following characteristics: (1) year of incorporation as a proxy for corporate age, (2) industry, (3) charitable activities, (4) identified specific public benefit, and (5) adoption of model legislation options not required by the Delaware statute.

First, I find that 74.5% of public benefit corporations incorporated in Delaware in 2013. Although not a perfect proxy, I use incorporation in Delaware as a proxy for length of corporate existence. Barring subsidiary or other relationships with existing companies, these results imply that 74% of public benefit corporations are new small businesses. The corporate age of most public benefit corporations raises questions about the likelihood of their long-term performance and success. Many new small businesses fail. Public benefit corporations may find success even more illusive given the statutory intent that they "operate in a responsible and sustainable manner" and requirement that they employ stakeholder governance management. Sustainable and responsible operations may siphon funds that these new small businesses do not have.

Second, my results show that 31% of public benefit corporations provide professional services (e.g., consulting, legal, financial, architectural design); the technology and education sectors each represent 11% of public benefit corporations; and 9% are engaged in the healthcare sector. 11% of public benefit corporations within the cohort analyzed produce or sell non-perishable consumer products. Notably, two of the most profitable and perhaps most well-known public benefit corporations fall into the consumer retail product category: Method Products, PBC and Plum, PBC.

At face value, companies in the technology, healthcare, and education sectors satisfy the minimal requirements of the public benefit corporation form, because positive "educational," "medical," and "technological" effects are each considered a "public benefit" by the DGCL. The "public benefit" that companies in other industries provide is open to debate.

Third, I find that 35% of public benefit corporations could have alternatively incorporated as a charitable nonprofit exempt from federal income tax. This result begs that question as to why a firm that could become a nonprofit organization with 501(c)(3) tax-exempt recognition would choose to become a public benefit corporation. The public benefit corporation is often discussed as an alternative to a traditional for-profit corporation and couched in terms of improving the for-profit sector through combating short-termism and encouraging social and environmental sustainability. It is less often described as an alternative to a charitable nonprofit. Further research is needed to determine the factors that lead these founders to select a for-profit public benefit corporation over a nonprofit corporation.

Fourth, many of the filed charters of the 55 public benefit corporations fail to state a specific public benefit, despite a statutory requirement to do so. These charters instead simply recite statutory language regarding stakeholder governance management - i.e., a statement promising to balance various stakeholders' interests - or state language from the model benefit corporation statute regarding some general public benefit - i.e., that the specific public benefit is to "create a material positive impact on society and the environment." Proponents of the public benefit corporation and the legislature intended that the statement of a specific public benefit would focus directors in carrying out a specified mission and also give stockholders notice (and control over) the specified public benefit. Omissions of a specific public benefit seemingly thwarts such goals.

Finally, in my article I also present a legal analysis of the statutory requirements of a Delaware public benefit corporation and compare them to the model statutory requirements for benefit corporations. I highlight two features of public benefit corporations - adoption of stakeholder governance management and pursuit of a public benefit. These two distinct features are often discussed as if they are one and the same; however, they have separate legal significance and consequences with respect to director liability.

Overall, my article presents early, yet important research that fills an informational gap about how the public benefit corporation has been employed initially.

The full paper is available for download here.

July 23, 2014
Sullivan & Cromwell discusses CFTC Reauthorization Bill
by David J. Gilberg

INTRODUCTION

On June 24, 2014, the House of Representatives voted 265 to 144 to pass H.R. 4413, entitled the "Customer Protection and End-User Relief Act" (the "Reauthorization Act"). The Reauthorization Act reauthorizes the operations of the Commodity Futures Trading Commission (the "CFTC") through the 2018 fiscal year. In addition to reauthorizing the CFTC, the Reauthorization Act would, if enacted, amend the Commodity Exchange Act (the "CEA"), among other things, to:

  • require statutorily the CFTC and Securities and Exchange Commission ("SEC") to issue joint rules regarding the application of U.S. swaps rules to transactions made between U.S. and foreign entities;
  • modify the requirements for the CFTC's cost-benefit analyses for rules promulgated under the CEA;
  • enhance certain protections afforded to customers of futures commission merchants ("FCMs");
  • require the CFTC to conduct a study on high-frequency trading no later than one year after the enactment of the bill;
  • amend the procedures for taking actions without a full vote of the CFTC commissioners; and
  • provide relief to end-users from certain requirements implemented under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act").

The Reauthorization Act will now be considered by the Senate and will need to be passed by the Senate and signed by the President prior to enactment. The Senate is not expected to pass the Reauthorization Act in the form passed by the House and will likely offer a Senate version with substantial differences from the House's Reauthorization Act. The bills must then be reconciled by Congress before they are presented to the President. Furthermore, the Reauthorization Act, as passed by the House, does not provide the CFTC with additional funding and imposes new requirements on its operation, to which the CFTC will likely object. If the House and the Senate fail to reach an agreement on an act to reauthorize the CFTC, Congress will likely be forced to reauthorize the CFTC temporarily for an additional year based on its current statutory authorization.

Enhanced Protection for Customers of FCMs

The Reauthorization Act would provide clarification of certain protections afforded to customers of FCMs that are clearing derivative contracts through derivatives clearing organizations. Pursuant to Section 4d of the CEA, an FCM is required to hold sufficient funds in each of its customer accounts (by product type (e.g., futures, swaps, etc.) to satisfy its customers' margin requirements for the customers' cleared positions.[1] In a recent final rule, the CFTC explained that it interprets the CEA to prohibit an FCM from using margin furnished by one customer to satisfy the margin requirements of another customer of the FCM in any manner.[2] In light of this interpretation, the CFTC adopted rules that require that, at the end of each day, an FCM must maintain a residual interest (i.e., its own assets that it deposits in the account as customer funds) in each of its customer segregated accounts in an amount sufficient to cover any shortfall in a specific customer's initial margin with respect to that customer's margin requirement for that day.[3] Certain changes to the CEA in the Reauthorization Act effectively would require that, if the CFTC adopts rules that require an FCM to hold a residual interest in its customer segregated account in an amount sufficient to exceed a specific customer's margin deficits, the rule can only require the residual interest requirement to be calculated at the end of the business day as of the close of business on the previous day. The Reauthorization Act would also include a provision that overrules a prior bankruptcy court decision[4] and would require statutorily that "customer property" in an FCM bankruptcy would include most unencumbered cash, securities, or other property of a commodity broker's estate but only to the extent that the property that is otherwise deemed to be "customer property" is insufficient to satisfy the net equity claims of the FCM's public customer account. This amendment would effectively give customers of a bankrupt FCM a higher priority in the general assets of the FCM's estate if the assets in the customer account are not sufficient to satisfy customer claims.

High-Frequency Trading

In response to the recent allegations with respect to, and focus on, high-frequency trading, the Reauthorization Act would also require that the CFTC perform a study of high-frequency trading in markets subject to the CFTC's jurisdiction.

Cost Benefit Analysis

Currently, the CFTC is required to consider the costs and benefits of any regulation prior to promulgating such regulation. In particular, the CFTC is required to consider:

  • the protection of market participants and the public;
  • the efficiency, competitiveness and financial integrity of the futures market;
  • price discovery; and
  • sound risk management practices.

The Reauthorization Act would require that the CFTC, in engaging in this cost-benefit analysis, also consider:

  • the impact on market liquidity in the futures and swaps markets;
  • available alternatives to direct regulation;
  • the degree and nature of the risks posed by various activities within the scope of its jurisdiction;
  • the costs of complying with the proposed regulation or order by all regulated entities, including a methodology for quantifying the costs (recognizing that some costs are difficult to quantify); and
  • whether the proposed regulation or order is inconsistent, incompatible, or duplicative of other Federal regulations or orders.

The imposition of these additional factors that the CFTC must consider with respect to each rulemaking could make it more difficult for the CFTC to adopt regulations in certain instances and would likely facilitate legal challenges to CFTC rulemaking.

Commission Action with No Vote

In the wake of the Dodd-Frank Act-related rulemakings, the CFTC staff issued a substantial number of letters providing interpretations of various rules, as well as no-action relief (including delaying the compliance date of certain rules). In response to those issuances, the Reauthorization Act would institute a procedure governing these staff actions that are issued without a vote of the Commissioners, pursuant to which the staff would be required to notify the Commissioners prior to issuing any response to a formal, written request or petition from any member of the public for an exemptive, no-action, or interpretive letter.

Judicial Review of Commission Rules

The Reauthorization Act would provide a means for market participants to challenge rules promulgated by the CFTC under the CEA. In particular, the Reauthorization Act would provide that a person adversely affected by a rule adopted by the CFTC may request that a U.S. Court of Appeals review the rule and consider a written petition requesting that the new rule be set aside.

End User Relief

In enacting the Dodd-Frank Act, Congress generally indicated that it did not intend to impose significant regulatory requirements on commercial end users of derivative products or to limit their ability to engage in, or increase their cost of, hedging transactions.[5] The Reauthorization Act provides relief to these end users with respect to certain regulations implemented by the CFTC under the Dodd-Frank Act with regard to, among other things:

  • margin requirements for uncleared swaps;
  • swaps with non-financial entity affiliates;
  • certain swaps with special entities that are utilities;
  • the definition of "financial entity";
  • reporting of certain illiquid swaps;
  • end user recordkeeping requirements;
  • forward contracts with volumetric optionality; and
  • the definition of bona fide hedging.
  • With respect to uncleared margin requirements,[6] the Reauthorization Act would statutorily provide that the uncleared margin requirements do not apply to swaps with respect to which one counterparty would qualify for the non-financial end-user exception to clearing under Section 2(h)(7)(A) or would otherwise be exempt from the clearing requirement, regardless of whether the swap is subject to the clearing requirement. This relief would apply to both CFTC-regulated swaps as well as SEC-regulated security-based swaps. As proposed, the CFTC's uncleared margin rules would not impose margin requirements on non-financial end users while the banking regulators' uncleared margin rules may impose margin requirements on non-financial end users (albeit with very high threshold levels).[7] The Reauthorization Act would statutorily prohibit imposing margin requirements on certain swaps of non-financial end users.

    The Reauthorization Act would provide relief with respect to the definition of "financial entity". Under the CEA, a financial entity is defined currently as:

    • a swap dealer;
    • a security-based swap dealer;
    • a major swap participant;
    • a major security-based swap participant;
    • a commodity pool;
    • a "private fund";
    • an "employee benefit plan"; or
    • a person predominantly engaged in activities that are in the business of banking, or in activities that are financial in nature.

    The Reauthorization Act would provide that an entity, which might otherwise be captured within the definition of financial entity by the last prong, with an affiliate that qualifies for the non-financial end-user exception to the clearing requirement under Section 2(h)(7)(A), could rely on that exception, provided that the entity is entering into the swap to hedge or mitigate the commercial risk of the non-financial affiliate, subject to certain credit support conditions.[8]

    The Reauthorization Act would also provide relief from the definition of "financial entity" for commercial market participants (who may be financial entities because they are predominantly engaged in physical delivery contracts) and persons who use derivatives to mitigate commercial risk.[9] The Reauthorization Act would also statutorily define "commercial market participant" as "any producer, processor, merchant, or commercial user of an exempt or agricultural commodity, or the products or byproducts of such a commodity."[10]

    The Reauthorization Act would provide relief to counterparties of certain "special entities" (i.e., governmental entities) that own or operate natural gas or electric utility facilities from the de minimis threshold requirements of the CFTC Rules. The CFTC Rules provide that a person shall not be deemed to be a "swap dealer" if that person does not engage in swap dealing transactions with an aggregate gross notional amount in excess of certain thresholds over the past 12 months.[11] The relief in the Reauthorization Act would provide that "utility-operations-related swaps" (as defined in the Reauthorization Act) that are part of swap dealing activities would be included in the general de minimis threshold (currently $8 billion in notional amount per 12-month period) rather than the special entity de minimis threshold (currently $25 million in notional amount per 12-month period).[12]

    The Reauthorization Act would also provide relief from the reporting requirements for certain swaps in illiquid markets.[13] This relief is in response to concerns recently raised in the industry that, by publicly reporting these swaps pursuant to the CFTC's swap data reporting rules, a market participant is providing others with insight into its positions and strategies. The Reauthorization Act would provide that the CFTC must adopt rules with respect to the reporting of hedging swaps in illiquid markets entered into by non-financial entities where such swaps data would only be publicly available at least 30 days after execution.

    The Reauthorization Act would also provide relief for end users from certain newly adopted recordkeeping requirements implemented by CFTC Rule 1.35. CFTC Rule 1.35 requires a member of a designated contract market or a swap execution facility that is not registered in any capacity with the CFTC to "keep full, complete, and systematic records, which include all pertinent data and memoranda, of all transactions relating to its business of dealing in commodity interests and related cash or forward transactions."[14] The Reauthorization Act would require a person that is a member of a designated contract market or swap execution facility and that is otherwise not required to be registered with the CFTC only to keep records of "each transaction in a contract for future delivery, option on a future, swap, swaption, trade option, or related cash or forward transaction. The written record shall be sufficient if it includes the final agreement between the parties and the material economic terms of the transaction and is identifiable and searchable by transaction."[15] This would be a significant reduction in the recordkeeping burden.

    The Reauthorization Act would modify the definition of "swap" under the CEA to address concerns raised by market participants in response to the CFTC's guidance on forward contracts with volumetric optionality.[16] The Reauthorization Act would provide that any contract:

    • that is on a non-financial commodity;
    • that is intended to be physically settled;
    • where the exercise of any embedded option in such contract would result in a physical delivery obligation;
    • where any embedded optionality cannot be severed or marketed separately from the overall transaction for the purpose of financial settlement; and
    • with respect to which both parties are commercial market participants,

    would be a forward contract that is excluded from the definition of swap. This exclusion would apply to both embedded options and stand-alone options.[17]

    The Reauthorization Act would provide additional clarity to the definition of bona fide hedging and provide the CFTC with the authority to define further which activities may constitute bona fide hedging.

    Cross Border Rules

    Although both the CFTC and the SEC have adopted guidance or rules concerning the cross-border applicability of certain of each agency's swaps-related rules,[18] the Reauthorization Act would require the CFTC and SEC jointly to adopt rules that govern the application of the requirements applicable to U.S. swaps to transactions involving U.S. persons or non-U.S. persons. The joint rules must address:

    • the nature of the connections to the United States that require a non-U.S. person to register as a swap dealer, major swap participant, security-based swap dealer, or major security-based swap participant under each Commission's respective Acts and the regulations issued under such Acts;
    • which of the United States swaps requirements shall apply to the swap and security-based swap activities of non-U.S. persons, U.S. persons, and their branches, agencies, subsidiaries, and affiliates outside of the United States and the extent to which such requirements shall apply; and
    • the circumstances under which a non-U.S. person in compliance with the regulatory requirements of a foreign jurisdiction shall be exempt from United States swaps requirements.

    The Reauthorization Act would prohibit either agency from issuing any guidance, memorandum of understanding, or any similar type of agreement in lieu of a joint rulemaking. The Reauthorization Act would also define the term "U.S. person" to mean:

    • any natural person resident in the U.S.;
    • any partnership, corporation, trust, or other legal person organized or incorporated under the laws of the United States or having its principal place of business in the U.S.;
    • any account (whether discretionary or non-discretionary) of a U.S. person; and
    • any other person as the CFTC and SEC may further jointly define to more effectively carry out the purposes of this Act.

    This definition would specifically exclude the International Monetary Fund, the International Bank for Reconstruction and Development, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank, the United Nations, their agencies and pension plans, and any other similar international organizations and their agencies and pension plans from the definition of U.S. Person.

    Reaction to Reauthorization Act

    On June 19, 2014, the Executive Office of the President issued a statement regarding the Reauthorization Act. The administration stated that it "strongly opposes the passage of H.R. 4413 [(i.e., the Reauthorization Act)] because it undermines the efficient functioning of the [CFTC] by imposing a number of organizational and procedural changes and offers no solution to address the persistent inadequacy of the agency's funding."[19] In light of the fact that "[t]he enactment of the Dodd-Frank Act resulted in significant expansion of the CFTC's responsibilities," the Administration expressed concerns that the Reauthorization Act would "hinder the CFTC's progress in successfully implementing these critical responsibilities and would unnecessarily disrupt the effective management and operation of the agency, without providing the more robust and reliable funding that the agency needs."[20]

    On June 24, 2014, Sen. Debbie Stabenow, Chairwoman of the U.S. Senate Committee on Agriculture, Nutrition and Forestry, released a statement on the passage of the Reauthorization Act stating that she was "pleased to see the House bill includes measures related to customer protections as well as important considerations for end users." However, she expressed disappointment that "the bill provides no additional funding mechanism and adds new layers of administrative burdens, hindering the agency's ability to do its job and effectively regulate these markets."[21]

    Endnotes

    [1] 7 U.S.C. § 6d.

    [2] 17 C.F.R. § 1.22(a) ("No futures commission merchant shall use, or permit the use of, the futures customer funds of one futures customer to purchase, margin, or settle the trades, contracts, or commodity options of, or to secure or extend the credit of, any person other than such futures customer."). See also Enhancing Protections Afforded Customers and Customer Funds Held by Futures Commission Merchants and Derivatives Clearing Organizations, 78 Fed. Reg. 68506 (Nov. 14, 2013).

    [3] 17 C.F.R. § 1.22. These newly adopted CFTC rules would apply to futures, swaps and foreign futures contracts.

    [4] See In re Griffin Trading Company, No. 98-41742 (Bankr. N.D. Ill).

    [5] See, e.g., Letter to Rep. Barney Frank and Rep. Colin Peters from Sen. Christopher Dodd and Sen. Blanche Lincoln, dated June 30, 2010.

    [6] The uncleared margin requirements are those requirements imposed under Section 4s(e) of the CEA that would require that registered swap dealers collect margin from counterparties with respect to swaps that are not submitted for clearing.

    [7] See Margin Requirements for Uncleared Swaps for Swap Dealers and Major Swap Participants, 76 Fed. Reg. 23732 (Apr. 28, 2011); see also Margin and Capital Requirements for Covered Swap Entities, 76 Fed. Reg. 27564 (May 11, 2011). For a further discussion of these proposed rules, please see our Memorandum to Clients, entitled "Proposed Margin Requirements for Uncleared Swaps under Dodd-Frank: Federal Reserve Board, OCC, FDIC, Farm Credit Administration, Federal Housing Finance Agency and CFTC Propose Rules for Minimum Margin and Capital Requirements for Certain Dealers and Major Participants in Swaps and Security-Based Swaps", dated Apr. 18, 2011.

    [8] This provision in the Reauthorization Act is largely analogous to the relief in CFTC Letter 13-22 (Jun. 4, 2013).

    [9] It is unclear how an individual that is primarily engaged in physical delivery contracts and that actually takes delivery of physical commodities would be a "financial entity", as such term is defined under the CEA.

    [10] Section 351(b) of the Reauthorization Act.

    [11] 17 C.F.R. § 1.3(ggg)(4).

    [12] This provision in the Reauthorization Act would largely codify the relief provided in CFTC Letter 14-34 (Mar. 21, 2014).

    [13] The Reauthorization Act would define an "illiquid market" as "any market in which the volume and frequency of trading in swaps is at such a level as to allow identification of individual market participants."

    [14] 17 C.F.R. § 1.35(a). This rule would require that such record include "all orders (filled, unfilled, or canceled), trading cards, signature cards, street books, journals, ledgers, canceled checks, copies of confirmations, copies of statements of purchase and sale, and all other records, which have been prepared in the course of its business of dealing in commodity interests and related cash or forward transactions", as well as all "written communications provided or received concerning quotes, solicitations, bids, offers, instructions, trading, and prices that lead to the execution of a transaction in a commodity interest and related cash or forward transactions" and also must be in "a form and manner identifiable and searchable by transaction." Id.

    [15] Section 353 of the Reauthorization Act.

    [16] The CFTC adopted a seven-part test to address whether a forward contract with volumetric optionality would qualify for the forward contract exclusion. See Further Definition of "Swap," "Security-Based Swap," and "Security-Based Swap Agreement"; Mixed Swaps; Security-Based Swap Agreement Recordkeeping, 77 Fed. Reg. 48207, at 48238 (Aug. 13, 2012). For a further discussion of this rule, please see our Memorandum to Clients, entitled "Final Product Definitions Under Title VII of Dodd-Frank: CFTC and SEC Adopt Rules and Guidance to Further Define 'Swap', 'Security-Based Swap', 'Mixed Swaps' and Other Swap-Related Terms", dated Aug. 27, 2012.

    [17] Effectively, this would exclude from the definition certain contracts that qualify for treatment as "trade options" under the CFTC's current commodity option rules. See 17 C.F.R. Part 30.

    [18] See Interpretive Guidance and Policy Statement Regarding Compliance With Certain Swap Regulations, 78 Fed. Reg. 45292 (Jul. 26, 2013). For a further discussion of this guidance, please see our Memorandum to Clients, entitled "CFTC Cross-Border Application of Dodd-Frank Title VII: CFTC Approves Final Guidance and Exemptive Order on Cross-Border Application of the Swaps Provisions of Dodd-Frank", dated Jul. 22, 2013. See also Application of "Security-Based Swap Dealer" and "Major Security-Based Swap Participant" Definitions to Cross-Border Security-Based Swap Activities, Exchange Act Release No. 34-72472 (Jun. 25, 2014), available here.

    [19] Executive Office of the President, STATEMENT OF ADMINISTRATION POLICY H.R. 4413 - Customer Protection and End User Relief Act (Jun. 19, 2014).

    [20] Id.

    [21] Chairwoman Stabenow Statement on House Passage of CFTC Reauthorization Bill, available here.

    The full and original memo was published by Sullivan & Cromwell LLP on July 1, 2014, and is available here.

    July 23, 2014
    Advisen Releases 2014 First Half Corporate and Securities Litigation Report
    by Kevin LaCroix

    The level of all corporate and securities filings continued to decline in the second quarter of 2014 as filing activity returns to levels that prevailed before the financial crisis, according to the latest quarterly D&O claims activity report of Advisen. According to the report, filing levels in the second quarter reflected the "fewest securities and business litigation filings and enforcement actions in the post financial crisis era." However, securities class action filings bounced back in the second quarter after a "downward fluctuation" in the first quarter. A copy of the Advisen report can be found here (scroll down). My analysis of first half securities class action litigation filings can be found here.

    It is important to understand that the Advisen report differs in significant respects from other published reports of securities litigation activity. The other published reports discuss only the levels of securities class action filings, whereas the Advisen report captures a broader sweep of corporate and securities litigation, including regulatory enforcement actions, individual securities actions, breach of fiduciary duty lawsuits and even foreign litigation. In addition, Advisen uses a counting methodology that differs from that used by other reporting sources, which count each action as a single suit no matter how many complaints are filed and no matter how many defendants are named, By contrast, Advisen "counts each company for which securities violations are alleged in a single complaint as a separate suit." As a result of these features of Advisen's approach, the figures Advisen reports may appear different from other reported figures.

    According to Advisen, the quarterly decline in securities and business litigation filings puts filing activity in 2014 on pace for its third straight year of declines in litigation filings levels. Corporate and securities litigation filing levels declined in the second quarter by 26 percent from the first quarter of this year, and declined 25 percent compared to the second quarter of 2013, as the total number of events dropped from 303 to 227. Exhibit 1 to the report graphically depicts filings levels since 2005 and clearly shows that 2014 filing activity is on pace for its lowest level since 2008.

    By contrast to the overall levels of corporate and securities litigation filing activity, securities class action litigation filings actually increased in the second quarter. According to the Advisen report, there were 44 new securities class actions filed in the second quarter, compared to 39 in the first quarter. The first half total of 83 projects to a year-end filing total of 166, which is close the 2013 filing level. (For example, Cornerstone Research tallied the 2013 year-end total of securities class action filings as 166.)

    For the past several years, securities class action litigation as a percentage of all corporate and securities litigation had been declining. However, with the overall decline in the corporate and securities lawsuit filings and the increase in the number of securities class action litigation filings in the second quarter, the percentage that securities class action lawsuit filing represent of all corporate and securities lawsuit filings has increased. In the second quarter, securities class action lawsuit filing represented 20 percent of all filings. On an annualized basis, 2014 is on pace to be the third consecutive year in which securities class action lawsuit filings increased as a percentage of all corporate and securities litigation filings.

    While securities class action lawsuit filings are up as a percentage of all corporate and securities filings, the number of new securities class action lawsuits is down from longer term historical average. For example, Cornerstone Research reports that the 1997-2012 average annual number of securities class action lawsuits was 192, well above the projected number of 2014 securities class action lawsuit filings of 166. According to the Advisen report, "the general decline in the number of securities class actions may be driven by factors such as a reduction in the number of companies traded on the U.S. Stock Exchange or the winding down of credit crisis litigation." The longer term trend "may also reflect a change in emphasis by plaintiffs' firms."

    The sector experiencing the greatest number of corporate and securities lawsuits is the financial sector, as has been the case in every quarter since the beginning of the financial crisis. According to the Advisen report, 27 percent of all corporate and securities filings in the second quarter involved companies in the financial sector. Though this level is down compared to 2008, which financial firms were involved in 40 percent of all corporate and securities litigation, financial firms remain the leading sector for new filings.

    One of the most noteworthy trends in corporate and securities litigation has been the explosion in recent years of M&A-related litigation. Various reports have noted that lawsuits are now filed in connection with virtually every M&A transaction. The most recent Advisen report notes that while M&A litigation increased dramatically through 2011, in the last two years, the trend in terms of absolute numbers of lawsuit filings has been downward. However, the report reflects only absolute numbers of M&A lawsuit filings; it does not attempt to express the M&A related litigation activity as a reflection of the levels of underlying merger and acquisition activity.

    The report also notes that in the second quarter foreign firms were involved in fifteen percent of all corporate and securities litigation filings, the same level as in the first quarter. The average settlement cost for all types of case in the second quarter was $16 million, up from $14 million in the first quarter, but well below the $41 million reported in the second quarter of 2013.

    Advisen Quarterly Claims Trends Webinar: On Thursday July 24, 2014, I will be participating in a free Advisen webinar on the topic of Quarterly D&O Claims Trends. The hour-long call will begin at 11:00 am EDT. The webinar will also include Brenda Shelley of Marsh, Paul Rodriquez of Swiss Re Corporate Solutions, and Jim Blinn of Advisen. For additional information about the webinar and to register, please refer here.

     

    PLUS Professional Liability Regtional Symposium in Singapore: On August 21, 2014, I will be participating in the Professional Liablity Insurance Society (PLUS) Regional Professional Liablity Symposium in Singapore. This evening event, which will take place at the Singapore Cricket Club, will include a keynote presentation from Chelva Rajah of the Tan, Rajah & Cheah law firm. I already know that many industry professionals in the region plan to attend. I hooe that everone in the region will plan to attend and will encourage others to attend as well. Information about the event including registration can be found here.

    July 23, 2014
    Management Liability Insurance and Immigration Enforcement
    by Kevin LaCroix

    In a May 1, 2014 opinion (here), District of Kansas Judge Sam A. Crow, applying Illinois law, held that neither the EPL insurance coverage part nor the D&O insurance coverage part of a restaurant company's management liability insurance policy covered the defense fees incurred or the forfeiture amount ordered in an immigration enforcement proceeding that resulted in the company's entry of a guilty plea to a criminal charge.

     

    The court held that the immigration enforcement proceeding did not involve "Wrongful Employment Practices" as required for coverage under the EPL coverage part and did not involve a Claim within the meaning of the D&O coverage part because the criminal proceeding did not involve an adjudication of liability "for damages or other relief." Judge Crow also held that in any event the forfeiture ordered as a result of the guilty plea was not covered under the policy.

    A July 22, 2014 memorandum from the McGuire Woods law firm about Judge Crow's opinion can be found here.

    Background

    McCalla Corporation operates McDonald's restaurants. In August 2012, McCalla learned it was a target of a U.S. Immigration and Customs Enforcement investigation. In September 2012, the company received a search warrant. The government subsequently entered a one-count criminal information against the company.

    On December 3, 2012, the company entered a plea to the criminal charges, admitting among other things that McCalla's director of operations was aware that one its McDonald's restaurant store manager's I-9 form identity documents were expired or invalid. Two days after the supervisor advised the manager of the problem, the manager presented the supervisor with a "resident alien" card "that the supervisor knew did not appear to be genuine" yet the supervisor took no further action. The supervisor was also aware that "it took weeks, not two days, for a foreign national to obtain a 'resident alien' card, giving him further reason to know that the resident alien card ...was not genuine." McCalla was ordered to pay a $300,000 fine and a $100,000 forfeiture.

    McCalla sought to have its management liability insurer pay its costs of defending the criminal proceeding as well as the $100,000 forfeiture. The management liability insurer denied coverage for the claim. McCalla filed an action in the District of Kansas seeing a judicial declaration that the insurer owed McCalla a duty to defend the company in the immigration proceeding and also was obligated to pay the $100,000 forfeiture. The parties filed cross- motions for summary judgment.

    The EPL coverage part of the management liability insurance policy defined "Wrongful Employment Practices" to include "wrongful failure or refusal to adopt or enforce adequate workplace or employment practices, policies or procedures." However, the policy further provides that Wrongful Employment Practices are covered "only if employment-related and claimed by or on behalf of an Employee, Former Employee or applicant for employment."

    The D&O coverage part of the management liability insurance policy defined the term "Claim" to mean "a civil, criminal, administrative or regulatory proceeding commenced against any Insureds in which they may be subjected to binding adjudication or liability for damages or other relief."

    The May 1 Order

    In his May 1, 2014 order, Judge Crow denied McCalla's motion for summary judgment and granted the insurer's motion for summary judgment.

    Judge Crow held that the EPL coverage part did not cover the claim because the criminal proceeding was not "claimed by or on behalf of" an employee, former employee, or applicant, but rather was brought by prosecutors acting on behalf of U.S. regulators. Judge Crow said that the plaintiff had not provided an interpretation of the policy that "would justify reading this plain language out of the contract, as is necessary to trigger Defendant's duty to defend." Judge Crow added that doing so "would defeat the purpose of EPL coverage, which is necessarily limited to enumerated acts claimed by employees, former employees and prospective employees." Judge Crow also held that the forfeiture does not constitute covered "Loss" under the EPL coverage section.

    Judge Crow held that the claim was not covered under the D&O coverage part because the criminal proceeding did not meet the D&O coverage section's definition of "Claim." While the term claim encompassed a "criminal" proceeding, the definition specifies that the proceeding must represent an adjudication of liability "for damages or other relief." The Court said that the plaintiff provided "no reasonable construction" of the definition that would "permit the Court to find that the search warrant process or the filing of the information... could subject the Plaintiff to an adjudication of liability for damages or to an adjudication of liability for other relief." Judge Crow also concluded that the forfeiture did not meet the definition of Loss in the D&O coverage section.

    Finally Judge Crow held that even if the insurer had breached its duty to defend under either the EPL coverage section or the D&O coverage section the plaintiff "has shown no damages from any breach of that duty." McCalla's criminal plea and sentencing represented "a final adjudication of a criminal act," and therefore fell within the conduct exclusions found in both coverage sections. Even if the insurer had paid the company's defense expenses prior to the guilty plea, the company "would need to repay those amounts now." Judge Crow added that the company "cites no cases in which a breach of the duty to defend or to pay defense costs was found where the insured was found guilty of the criminal offense and the policy contained a criminal adjudication exclusions, as here."

    Discussion

    It is a statement of the obvious that immigration enforcement is a matter of serious concern for every employer in the United States. Employers undoubtedly would want reassurance that if they are hit with an immigration enforcement action that their costs of defense, at least, would be paid by their management liability insurer. Unfortunately, as was the case for McCalla here, there likely will be no management liability coverage even for defense costs incurred in defending against immigration proceedings that result in a criminal guilty plea or a criminal conviction, as no management liability insurance policies will provide coverage for an adjudicated criminal conviction. As Judge Crow noted, even if the insurer had advanced defense fees prior to the guilty plea or conviction, the insurer would be entitled to have the amount of those advanced fees reimburse following the conviction.

    However, the absence of coverage in the event of a guilty plea or conviction is hardly the end of the analysis. At a minimum, companies hit with immigration enforcement actions would want to have their defense fees advanced during the pendency of the proceeding and in any event would want to know that their defense fees would be paid if they are successful in defending the immigration enforcement action. And on that score, this case shows nothing so much as how much depends on the precise wording of the policy. Here, the specific wording of the relevant coverage parts at issue resulted in Judge Crow's determination that there is no coverage under either coverage part. However, the relevant wordings in this policy differed significantly from other coverage terms and conditions available in the marketplace.

    The policy at issue here offered coverage only for claims by employees, former employees and applicants. However, many EPL policies available in the market place include Third Party Liability Coverage, or the carriers offer Third Party Liability coverage as an option. This coverage extends the EPL coverage to claims brought by third parties. However, depending on the wording of the Third Party Coverage part, the policy might or might not extend to the type of claim here. Many EPL policies offering this coverage limit the definition of Third Parties to "natural persons." Other polices’ definition of Third Party Claims omit criminal proceedings from the definition. Thus it would not be sufficient to bring the type of immigration enforcement action here within the scope of the EPL coverage for the policy to include Third Party liability coverage; the policy's definitions would have to be broad enough to encompass claims by the government and broad enough to encompass criminal proceedings. In addition, one or more exclusions found in the EPL coverage part might also operate to preclude coverage for an immigration enforcement action.

    The possibility for coverage under the D&O coverage is perhaps more promising. Here the insured ran afoul of an infelicitous wording in the definition of claim, where the phrase "adjudication of liability for damages or other relief" was found to modify not only "civil... administrative or regulatory" proceeding but also to modify a "criminal" proceeding. Because all of these various named types of proceedings are telescoped together into a single phrase, the impression is created that the phrase "damages or other relief" was meant to apply to "criminal proceedings." However, policies in which the definition of "claim" is subdivided with each of these types of proceedings having its own separate subpart, the intent of the policy is clearer and in particular there is no mistake that the phrase "damages or other relief" or its equivalent applies to "criminal proceedings." Policyholders whose policies have this clarifying definition of "claim," could hope to have their costs of defending a criminal immigration enforcement proceeding advance, and in the absence of a guilty plea, covered.

    As the McGuire Woods memo linked above puts it, when it comes to coverage for immigration enforcement actions, "the particulars of the policy language dictate the extent of coverage." According to the memo, which is quite critical of the opinion, Judge Crow's ruling is on appeal to the Tenth Circuit.

    Director and Officer Liability for Environmental Enforcement Actions: As I have noted on this blog, environmental enforcement actions can result in findings of liability against the individual directors and officers of companies that caused environmental damage or harm. In an interesting July 22, 2014 article in the Arizona State Law Journal entitled "Liability of Parent Corporations, Officers, Directors and Successors: When Can CERCLA Liability Extend Beyond the Company?" (here), Michelle De Blasi of the Gammage and Burnham law firm takes a look at the broad reach of the joint and several liability regime under the Comprehensive Environmental Response Compensation and Liability Act. (CERCLA).

    The article covers a lot of ground but among other things it examines the circumstances under which directors and officers can be personally liable under CERCLA. The author also briefly reviews a number of specific cases where individuals have been held liable under CERCLA or for environmental reporting.

    July 23, 2014
    Former Qualcomm EVP Pleads Guilty to Insider Trading
    by Tom Gorman

    For former Qualcomm Inc. Executive Vice President Jing Wang the cover-up not only failed but increased his liability. The former executive pleaded guilty this week to securities fraud based on his insider trading, money laundering tied to his efforts to evade detection and admitted to obstruction. U.S. v. Wang, 3:13-cr-03487(C.D. Calif. Filed Sept. 20, 2013).

    Mr. Wang traded on inside information obtained from his employer in three instances. First, on March 1, 2010, after the close of the market, Qualcomm announced an increase in its dividend and a stock repurchase plan. Earlier, in February Mr. Wang became aware of these plans. On the morning of March 1, he attended a company board meeting where the plan was discussed. Later that day he instructed his friend and broker Gary Yin, a registered representative at Merrill Lynch, to use all of the funds in an account he controlled to purchase Qualcomm shares. Mr. Yin also purchased shares. After the announcement the share price increased and both men sold the securities at a profit.

    Second, on January 5, 2011 Qualcomm announced the acquisition of Atheros Communications, Inc. Prior to the announcement Mr. Wang learned about the deal through the course of his duties. He also attended a board meeting where it was discussed. He purchased shares of Atheros as did Mr. Yin. After the announcement the share price increased and both men sold their shares at a profit.

    Third, on January 26, 2011 Qualcomm announced increased guidance. During the prior month Mr. Wang became aware that the firm was considering announcing increased guidance. That information was confirmed at a December 6, 2010 board meeting Mr. Wang attended. The day before the announcement he telephoned Mr. Yin and instructed him to purchase company shares. After the announcement the share price increased. Mr. Wang sold all of his shares at a profit.

    The cover-up traces to 2006 before the insider trading. In that time period Messrs. Wang and Yin created off-shore entities and set-up accounts. The ownership of the accounts was designed to make it appear that they belonged to others. The money laundering charge was based on the efforts of Mr. Wang to transfer over $525,000 from one of the offshore accounts that included about $250,000 from the insider trading to another nominee brokerage account in the British Virgin Islands. As part of the plea agreement Mr. Wang also admitted to fabricating evidence and a false cover story in conjunction with his brother Bing Wang and Mr. Yin.

    Previously, Gary Yin pleaded guilty to conspiring with Jing Wang and Bing Wang to obstruct justice and launder money. His sentencing is scheduled for September 15, 2014. Bing Wang was also indicted. He is believed to be in China. Mr. Wang's sentencing has not been scheduled. See also SEC v. Wang, Civil Action No. 3:13-cv-02270(S.D. Cal. Filed Sept. 23, 2013).

    July 23, 2014
    Shareholder Engagement: Should Directors Be Politicians? 10 Things to Consider
    by Broc Romanek

    I know the title of this particular blog sounds sensational - but the opening of this column by Andrew Ross Sorkin about shareholder engagement is "What if lawmakers never spoke to their constituents?" So let me deal with the top 10 points that I see in this column since it created a stir yesterday:

    1. "Within the clubby world of directors, communicating with shareholders, big or small, is overtly frowned upon"

    My take: I agree that it's quite strange that the notion of shareholder engagement is something that only recently is in vogue. Then again, the term "corporate governance" was barely used - or understood - until about 15 years ago. I make fun of this sudden fascination with engagement in this 90-second video entitled "10 Silly Ways Towards Better Shareholder Engagement." I should note that The Conference Board issued a statement yesterday clarifying its position about directors engaging (i.e. they support directors speaking directly with investors, particularly in special circumstances such as when investors have lost confidence in a board or management)- Sorkin didn't characterize their position quite right.

    2. "At least 1,000 large United States public companies to receive a letter this month from a group of shareholders representing more than $10 trillion in assets with a demand: Talk to us."

    My take: Here's the July 2nd letter if you haven't seen it. The letter doesn't demand direct shareholder-director engagement. Rather, it asks boards to "consider adopting and clearly articulating a policy for shareholder-director engagement, whether through adoption of the SDX Protocol or otherwise." The letter notes that JPMorgan's proxy statement explicitly endorsed the SDX protocol - and that its board met with shareholders representing 40% of its base. The letter notes that less than 25% of the S&P 500 disclosed their engagement efforts in their proxy (I note that even the ones that disclosed their engagement efforts likely didn't mention shareholder-director engagement).

    3. "Some directors avoid meetings, worried about speaking with one voice"

    My take: This seems like a valid concern on its face - but smart shareholders know that each director has their own views. Those shareholders seeking to meet a particular director typically just want to ascertain whether they are truly independent and capable of doing their job. They are not looking to meet a politician.

    4. "Most don't consider it their responsibility"

    My take: Directors are supposed to represent shareholders. Although I agree it's not a primary responsibility - and most directors don't have the time to do a bunch of meetings - they shouldn't shun shareholders.

    5. "Some are anxious about accidentally disclosing sensitive information"

    My take: If a director isn't capable of meeting with someone and not giving away material nonpublic information, they shouldn't serve in that role. Note that Corp Fin has issued Reg FD CDI Question 101.11 which clarifies that directors are not prohibited from speaking privately with shareholders. This CDI should give directors comfort that private meetings are not intrinsically problematic so that they can participate in governance engagement efforts.

    6. "Some chief executives are insecure and don't want shareholders to get too close to their boards for fear they will have undue influence"

    My take: This is an interesting one. On its face, the CEO shouldn't be insecure as these typically are short and simple meetings (and normally a company officer accompanies the director). But look how lobbying has destroyed Congress. So long as the engagement process is kept in check, this concern isn't a valid one.

    7. "Many top executives seem to think that board members cannot be trusted with such interactions"

    My take: It's true that most boards will have some directors that are not "camera ready." But smart shareholders will know that and not expect (nor want) a board full of politicians.

    8. "If a board becomes too enamored with a particular view from a set of shareholders, it could lead to short-term thinking that undermines long-term performance"

    My take: True dat.

    9. "Large investors might have the opportunity to meet with directors while small retail investors almost certainly never will"

    My take: This is reality. But as I blogged yesterday, companies can post video interviews with directors so that anyone can get a feel for a director.

    10. "The shareholders despite saying they want a dialogue, actually aren't interested"

    My take: This is a real problem: boards going on governance roadshows with few attendees. At our executive pay conference, my "investors speaks" panels illustrate that there are a variety of views towards whether directors need to meet with shareholders. Shareholders have limited time availability, just like directors. By the way, I just posted this sample Powerpoint that can be used for a governance roadshow...

    Our "Shareholder Engagement Checklists"

    For me, the upshot is that boards should consider adopting shareholder engagement policies - and this is a topic ripe for proxy disclosure (many of the proxies I highlighted in my video series this year included this disclosure). Remember that we have a lot of good practical stuff in our "Shareholder Engagement Checklists":

    - Shareholder Engagement - Committees
    - Shareholder Engagement - Considerations
    - Shareholder Engagement - M&A Announcements
    - Shareholder Engagement - Policies

    It's Done: 2015 Edition of Romanek's "Proxy Season Disclosure Treatise"

    Just ahead of my vacation, I have wrapped up the 2015 Edition of the definitive guidance on the proxy season - Romanek's "Proxy Season Disclosure Treatise & Reporting Guide" - and it's gone to the printer. You will want to order now so that you can get your copy as soon as it's done being printed. With over 1450 pages - spanning 32 chapters - you will need this practical guidance for the challenges ahead...

    - Broc Romanek

    July 23, 2014
    The Affordable Care Act, the DC Circuit, and the SEC
    by J Robert Brown Jr.

    Yesterday, two circuit courts issued opposite decisions on the Affordable Care Act. The Fourth Circuit held that individuals could obtain subsidies through the federal healthcare site.

    The D.C. Circuit, by a vote of 2-1 held the reverse. The D.C. Circuit opinion (Halbig v. Burwell) included on the panel judges Griffith, Edwards and Randolph. Edwards and Randolph are senior judges. The majority, Griffith and Randolph, were appointed by Republican presidents while the dissent, Edwards, was appointed by a Democratic president.

    While it is difficult to attribute political leanings to judges (all are motivated by a desire to interpret the law fairly), the reality is, that until recently, the D.C. Circuit was made up of a majority of judges who showed very little deference towards administrative agencies. The SEC was a particularly common recipient of this lack of deference. The D.C. Circuit's decision in Business Roundtable v. SEC, the case that struck down the shareholder access rule, was a particularly egregious case of a lack of deference, and one hard to defend under existing case law.

    When the Commission would lose (as in the shareholder access case), appeal to the full court (en banc) was mostly pointless. With a panel already uniting in opposition, the full court was not likely to produce enough votes to overturn the decision. Business Roundtable was not, therefore, appealed (although some argued that it should have been).  

    The membership of the D.C. Circuit remained static (except for some retirements) during the current President's first term. He was the first president in memory to obtain no appointments to the D.C. Circuit. That changed, however, during his second term. The President has succeeded in obtaining approval for three judges on the court. There are now 7 non-retired judges appointed by Democratic presidents and four appointed by Republican presidents.  

    The result, at least so it seem, is that deference has, to some degree, returned. Thus, the SEC's decision in National Association of Manufacturers v. SEC (the conflict minerals case) was an administrative law victory for the SEC. 

    The NAM decision was not, however, a complete victory. The Commission saw a small portion of the rule struck down on questionable first amendment grounds. Unlike past cases, however, the Commission did not just take the shellacking. First, the SEC, showing verve, indicated its intent to implement the rule (staying only the portions held to have violated the first amendment) and denied a motion for a stay. For the statement from CorpFin on the issue, go here

    The Commission then went even further. It contested the first amendment decision. In other words, the Agency declined to take 90% of a loaf (the portions of the rule not overturned) and opted for a strategy seeking the whole loaf. The Commission asked to have the case held. See Petition of the SEC for Rehearing or Rehearing En Banc Pending the Decision in American Meat Institute v. United States (May 29, 2014).

    What has changed? Two things.  

    First,  the constitutional question was already pending before the D.C. Circuit en banc, the issue having been raised in a different case. Second, given the shift in the make up of the court, there is a real chance that the law will shift to a place more in keeping with the SEC's view. If that happens, the Commission will likely ask the panel to alter its constitutional analysis and uphold the rule in its entirety.  

    All of this brings us back to the Affordable Care Act. The DOJ has already announced (within hours) that it would take the case en banc in the D.C. Circuit. A victory for the United States (something highly probable) would confirm that, no matter what the individual panels do, the court en banc stands ready to change the reigning philosophy of the court.

    If the United States wins, it should embolden the SEC to appeal cases, to the full court en banc, that it loses where a panel was insufficiently deferential. In other words, the SEC would be in a position to no longer significantly fear legal challenges to rules (at least based on administrative law grounds). A loss like the one in Business Roundtable would no longer go unchallenged.

    July 22, 2014
    Do Activist Hedge Funds Really Create Long Term Value?
    by Martin Lipton

    Editor's Note: Martin Lipton is a founding partner of Wachtell, Lipton, Rosen & Katz, specializing in mergers and acquisitions and matters affecting corporate policy and strategy. This post is based on a Wachtell Lipton memorandum by Mr. Lipton and Steven A. Rosenblum that replies to the recently-issued empirical study by Lucian Bebchuk, Alon Brav, and Wei Jiang on the long-term effects of hedge fund activism. The study is available here, and its results are summarized in a Forum post and in a Wall Street Journal op-ed article.

    About a year ago, Professor Lucian Bebchuk took to the pages of the Wall Street Journal to declare that he had conducted a study that he claimed proved that activist hedge funds are good for companies and the economy. Not being statisticians or econometricians, we did not respond by trying to conduct a study proving the opposite. Instead, we pointed out some of the more obvious methodological flaws in Professor Bebchuk's study, as well as some observations from our years of real-world experience that lead us to believe that the short-term influence of activist hedge funds has been, and continues to be, profoundly destructive to the long-term health of companies and the American economy.

    Recently, the Institute for Governance of Private and Public Organizations issued a paper that more systematically examines the flaws of Professor Bebchuk's econometric and statistical models, concluding that "the Bebchuk et al. paper illustrates the limits of the econometric tool kit, its weak ability to cope with complex phenomena; and when it does try to cope, it sinks quickly into opaque computations, remote from the observations on which these computations are supposedly based." The paper also observes that "activist hedge funds operate in a world without any other stakeholder than shareholders. That is indeed a myopic concept of the corporation bound to create social and economic problems, were that to become the norm for publicly listed corporations."

    Further the Institute's paper concludes: "[T]he most generous conclusion one may reach from these empirical studies has to be that "activist" hedge funds create some short-term wealth for some shareholders (and immense riches for themselves) as a result of investors, who believe hedge fund propaganda (and some academic studies), jumping in the stock of targeted companies. In a minority of cases, activist hedge funds may bring some lasting value for shareholders but largely at the expense of workers and bond holders; thus, the impact of activist hedge funds seems to take the form of wealth transfer rather than wealth creation."

    The Institute's paper is well worth reading for its academically rigorous, as well as common sense, refutation of Bebchuk's claims.

    July 22, 2014
    Update on FINRA's July Board of Governors Meeting
    by Joel Beck

    Earlier this month, FINRA's Board of Governors met for their July meeting. Chair Richard Ketchum and lead governor Jack Brennan prepared a short video overview of the results of that meeting. That can be found online here. Of note, they discussed the current status of FINRA's CARD proposal and modifications to their rule proposal for that planned system. The revised rule proposal will be published in a Regulatory Notice for which they will seek comments, and then, after review of same, FINRA plans to submit a rule proposal to the SEC for consideration by the end of the year.

    7/23/2014 posts

    HLS Forum on Corporate Governance and Financial Regulation: Delaware Public Benefit Corporations 90 Days Out: Who's Opting In?
    CLS Blue Sky Blog: Sullivan & Cromwell discusses CFTC Reauthorization Bill
    The D&O Diary: Advisen Releases 2014 First Half Corporate and Securities Litigation Report
    The D&O Diary: Management Liability Insurance and Immigration Enforcement
    SEC Actions Blog: Former Qualcomm EVP Pleads Guilty to Insider Trading
    CorporateCounsel.net Blog: Shareholder Engagement: Should Directors Be Politicians? 10 Things to Consider
    Race to the Bottom: The Affordable Care Act, the DC Circuit, and the SEC
    HLS Forum on Corporate Governance and Financial Regulation: Do Activist Hedge Funds Really Create Long Term Value?
    The Beck Law Firm, LLC Blog: Update on FINRA's July Board of Governors Meeting

    Blog posts are subject to copyrights held by the authors and are republished here with permission. Views expressed are those of the authors alone. Infringement Notification.
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