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Amy Goodman
For any in-house lawyers at public companies who may have been using the Mayan calendar’s impending doom as an excuse to not plan for the New Year, we have a quick cheat sheet to help get you back up to speed for 2013.
CorpCounsel.com spoke with Gibson Dunn partner Amy Goodman about the firm’s “Key Year-End Considerations for Public Companies” alert, which offers some important issues to consider as 2012 comes to a close.
Goodman, co-chair of the firm's securities regulation and corporate governance practice group and a primary author of the alert, says, “The whole idea of this list was that, if you’re a general counsel of a public company, from a securities and governance standpoint, what should you be worrying about?”
1. Assess whether the work of compensation consultants creates conflicts of interest.
Beginning with the 2013 proxy season, Securities and Exchange Commission rules will kick in that require disclosure about compensation consultant conflicts of interest. Although Gibson Dunn attorneys expect such disclosures to be rare, companies must take into account the six factors laid out in SEC Rule 10C-1(b)(4) [PDF]. Because the new definitions are so broad, Goodman says companies will need the help of compensation committee consultants, as well as their officers and directors, to root out any conflicts they may not be aware of.
2. Determine whether the company is subject to the SEC’s conflict minerals rules and, if so, begin steps to comply with these rules.
Not all companies are required to provide disclosures about so-called conflict minerals. But all Exchange Act reporting companies will need to undergo a three-step analysis established by the SEC to determine whether they’re subject to the disclosure requirement. According to Gibson Dunn attorneys, the SEC requires companies to determine whether conflict minerals are “necessary to the functionality or production of a product” they manufacture or have “contracted to manufacture.”
3. Determine whether the company will rely on the new “end-user exception” for swaps and, if so, obtain appropriate board-level approval.
Does the company use swaps to manage risk? The Commodity Futures Trading Commission issued final rules implementing the exception to the clearing requirements available to counterparties who meet certain requirements found in section 2h(7) of the Commodity Exchange Act, as amended by Dodd-Frank. For more information, see Gibson Dunn’s client alert: "Impact and Analysis of the CFTC's Final Rule Relating to the End-User Exception to the Clearing Requirement for Swaps."
4. Prepare for the Public Company Accounting Oversight Board’s new standard on auditor-audit committee communications.
Subject to SEC approval, Auditing Standard 16 will apply to audits for fiscal years beginning December 15, 2012, or later. Although the PCAOB standard only applies to audit firms, Gibson Dunn attorneys say the standard has some important engagement and communications implications for management, as well. "A lot of this is just good practice,” says Goodman, “but it’s making sure you’ve crossed the t’s and dotted the i’s in terms of this new auditing standard."
5. Be aware of the continued shareholder focus on hedging, pledging, and clawback policies, and consider whether to adopt or update policies in light of this focus.
The Dodd-Frank reforms will require the SEC to adopt rules about companies’ hedging policies. "But institutional investors have a broader concern,” says Goodman. “They’re very interested in executives owning stock and being aligned with the interests of shareholders,” she says. “If an executive hedges his or her ownership or pledges their shares, some institutions view that as inconsistent with the executive aligning their interest with shareholders."
6. Be mindful of the continued focus on disclosure about cyber-risks.
Gibson Dunn lawyers advise companies to be aware that the SEC is looking closely at cybersecurity disclosures, and in some instances may question companies about their failure to disclose data breaches. "It’s a very difficult area of balancing the interest of investors in disclosing information,” says Goodman, “but not wanting to provide a roadmap to hackers."
7. Consider using a new approach to the process of evaluating the board of directors.
According to the alert, companies should take a look at the benefits of finding new board evaluation methods. "The financial crisis and other events over the past couple of years have made boards want to focus a lot more on their effectiveness,” says Goodman. Although a questionnaire may be sufficient some years, she says, in other years boards may need to conduct a 360 review—with interviews. "Not only do they ask the directors to evaluate themselves, but they ask management whether they’re getting what they need from the board,” she says, adding, “A more fulsome evaluation process can help boards become more effective."
8. Carefully consider and provide support for any changes to director compensation.
According to the alert, the Delaware Chancery Court’s decision in Seinfeld v. Slager suggests that boards and committees should take extra care when reviewing and approving changes to director compensation. The court declined to dismiss a claim that an equity plan giving the directors “sole and absolute discretion” in determining their equity awards amounted to a breach of fiduciary duty. Gibson Dunn lawyers advise boards who are considering making changes to compensation to conduct appropriate diligence, including making use of benchmarking data.
9. Evaluate the need for disclosures about company activities involving Iran.
In October, President Barack Obama issued an executive order tightening sanctions on Iran. The order implemented the Iran Threat Reduction and Syria Human Rights Act of 2012, signed in August. According to the alert: “. . . the statute places tighter restrictions on U.S. companies that indirectly transact business with Iran through foreign subsidiaries. Additionally, the statute imposes disclosure obligations on public companies that knowingly violate Iran sanctions.”
10. Assess the impact of voting policy updates from the major proxy advisory firms.
Companies should check for the latest proxy advisory firm updates to proxy voting policies. A new ISS voting policy is getting a lot of attention. “It means that companies are having to look a lot harder at the proposals they get and determine whether they want to have them come up for a vote or make changes in their practices or try to negotiate to have the proposals withdrawn,” says Goodman. “I think long-term for governance, this will have a big impact.”
Inevitably, many more issues will be on the table for public company GCs throughout the year—but by getting these 10 squared away, legal departments can help ensure that their companies will start 2013 on the right footing.
