Category: Corporate Governance

Now It’s the Law

President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act at the Ronald Reagan Building today. The clock starts ticking on the compliance and rule-making deadlines.

“The fact is, the financial industry is central to our nation’s ability to grow, prosper, compete, and innovate. There are a lot of banks that understand and fulfill this vital role, and a lot of bankers who want to do right by their customers. Well, this reform will help foster innovation, not hamper it. It is designed to make sure that everyone follows the same set of rules, so that firms compete on price and quality, not tricks and traps. It demands accountability and responsibility from everyone. It provides certainty to everybody from bankers to farmers to business owners. And unless your business model depends on cutting corners or bilking your customers, you have nothing to fear from this reform.” – excerpt from the president’s speech

The President was joined on the stage by two non-politicians:

Andrew Giordano is a retired Vietnam veteran from Locust Point, Maryland who the President met last year when he participated in a roundtable to discuss the outdated rules regulating the financial sector. Mr. Giordano was saddled with hundreds of dollars in overdraft fees on his veteran’s account because his bank had automatically enrolled him in “overdraft” protection that he never asked for. The new Consumer Protection Bureau will enforce new rules on overdraft programs to make sure that consumers like Mr. Giordano get a real choice and are not unknowingly charged unnecessary fees.

Robin Fox is a 7th grade science teacher from Rome, Georgia who sent an letter to the President in early August because her credit card company retroactively increased the rate on her existing credit card balance from 10.90% to 17.90%, even though she paid her account on time. The increase has been a burden on her family at an already difficult time, after her husband’s landscaping business dried up due to the financial crisis. The new Consumer Protection Bureau will enforce the Credit CARD Act of 2009, which bans arbitrary rate hikes on existing balances and other unfair practices by credit card companies.

The politicians on the stage:

  • Vice President Biden
  • Secretary Timothy Geithner
  • Chairman Chris Dodd, D-CT
  • Chairman Barney Frank, D-MA
  • Speaker Nancy Pelosi, D-CA
  • Senator Harry Reid, D-NV
  • Senator Blanche Lincoln, D-AR
  • Representative Collin Peterson, D-MN
  • Representative Steny Hoyer, D-MD
  • Representative Paul Kanjorski, D-PA
  • Representative Maxine Waters, D-CA
  • Representative Mel Watt, D-NC
  • Representative Luis Gutierrez, D-IL
  • Representative Gregory Meeks, D-NY
  • Representative Dennis Moore, D-KS
  • Senator Tim Johnson, D-SD
  • Senator Jack Reed, D-RI

I assume everyone got pens.

Sources:

Financial Reform Passes the Senate

House Financial Services Committee Chairman Barney Frank (D-MA) issued the following statement on the passage of the Financial Stability Bill:

“I congratulate Senator Dodd on an impressive act of legislative leadership, and I also congratulate Majority Leader Reid for pushing this through. The two bills are very similar, and the House is ready to go to conference to work out the remaining issues. I am confident that we can have a bill ready for President Obama’s signature very soon.”

It’s going to take a while to get through all of amendments to the bill to figure out what changed. (Over 400 were proposed.) Senator Dodd still can add a “manager’s amendment” which is supposed to only make technical changes, but often has substantive changes.

As my Congressman Frank states, the House and the Senate need to hash out a compromise bill that both can pass.

The New York Times has a great chart highlighting some of the differences on the big items.

Tax on Carried Interest? Maybe Not.

Tucked into the Tax Extenders Act of 2009 (H.R. 4213) was a provision targeted at partnership interests held by partners providing services. H.R. 4213 flew through the legislative process of the House of Representatives. It was introduced on December 7, 2009 and passed by the House on December 9, mostly along party lines. The Carried Interest Tax is one of several dozen changes to the tax code included in that bill.

But will the bill pass in the Senate? Let’s hear from Sen. Debbie Stabenow (D-Michigan):

  • “I don’t think it’s going to be part of the Senate bill.”
  • “While members of the committee have brought it up, it won’t be part of any bill we pass.”
  • “You never know, but I seriously doubt it.”

The US Senate has not introduced anything similar to the Tax Extenders Act. With a Democratic controlled Senate I assumed that passage was inevitable.

But it appear that the divide between the House and the Senate on private equity and private funds appears to be growing. Both bodies keep talking about clamping down on hedge funds, but neither seems to know what one is and is not bothering to define it in the legislation.

Sources:

SEC Historical Society

November 1, 1974 - "We're Moving Right Along," Herblock, Copyright by The Herb Block Foundation
November 1, 1974 - "We're Moving Right Along," Herblock, Copyright by The Herb Block Foundation

The Securities and Exchange Commission Historical Society has launched a new gallery exploring the SEC during the mid to late 1970s: In the Midst of Revolution: The SEC, 1973-1981.

“From 1973 to 1981, the securities industry and the SEC experienced revolutionary change that created enormous upheaval, provided new economic opportunity and made the task of the SEC to respond to the new demands wrought by the rapid changes in the market increasingly more difficult.”

I was surprised to discover that the SEC’s Historical Society existed. I was even more surprised to see the wealth of information in its archives and virtual museum.

There is also a great history of the SEC’s regulation of insider trading.

Executive Compensation, Where Everyone is Above Average

lake-wobegon

It seems like executive compensation consultants come from Lake Wobegon, where “all the women are strong, all the men are good looking, and all the children are above average.”

I think executives should be compensated for out-performing their peers. They shouldn’t be punished for a negative performance due to external forces if they still out-performed their peers. Further, they shouldn’t be rewarded for a positive performance, if they under-performed their peers.

The magic is in picking the peer group to compare. Ideally, a peer group should include companies that are similar along several characteristics (e.g., industry, size, diversification, and financial constraints). Of course matching all of those characteristics would lead to a very small group for comparison.

In an article in the Wall Street Journal, Cari Tuna points out that Tootsie Roll Industries used Kraft Foods as a peer for deciding how much to pay its executives. Tootsie had $496 million in sales and Kraft had $42.2 billion in sales.

A study by Ana Albuquerque of Boston University examined what needs to go into selecting the peer groups. She found that having the the same industry and size quartile shows the best evidence for creating a relative peer group for executive compensation. In a second study, she found that companies tend to choose peers that pay their CEOs more, which in turn translates into firms paying their CEOs more.

In their study, Michael Faulkender of the University of Maryland and Jun Yang of Indiana University came to the conclusion that “compensation committees seem to be endorsing compensation peer groups that include companies with higher CEO compensation, everything else equal, possibly because such peer companies enable justification of the high level of their CEO pay.”

You can also add into the mix that the company may not want to seen as having a CEO who is below average. If your CEO is below average, then your company may be below average.

If you’re a CEO of a public company, it’s getting harder and harder to be below average.

References:

Investor Relations 2.0 After This Proxy Season

Hopefully your annual meeting of investors or shareholders went better than the annual meeting for Fortis. Shareholders in Ghent, Belgium threw shoes, coins and ballot boxes. (There is even video.)

Broc Romanek put together his thoughts on Proxy Season Developments: Ten Signs that Things are Changing Online.

  1. First Use of Live Internet Voting
  2. Soliciting Shareholder Feedback on Compensation Practices
  3. Soliciting Shareholder Feedback on Disclosures
  4. Emergence of Proponent Sites Designed to Solicit Mutual Funds
  5. Easier Ability to Track Voting ResultsUse of “RSS Street” to Follow Developments
  6. Use of Corporate Blogs (and Third-Parties) to Solicit Questions
  7. Use of Twitter to Describe Live Events
  8. Investors Communicating Through Social Sites
  9. Much Easier Use of Video Changes Everything

There is also an opportunity to review the success of the online delivery of materials through the Notice and Access Rules. Dominic Jones of the IR Web Report pointed out some statistics on its effectiveness. According to the Broadridge Notice and Access Resource Center there is a big cost savings, but also a big drop in shareholder participation.

But 2.0 tools are giving more power for investors to voice their views as part of the annual meeting. Shareholder activist Robert A.G. Monks posted a transcript of his presentation of five proposals at the Exxon meeting. You can also hear the entire meeting.

References:

Have a Coke and . . . Alternative Billing

coca-cola

Many have been contemplating and prognosticating the death of the billable hour for lawyers. I found it interesting to see a similar movement in the advertising industry. (I was unaware that the advertising industry also worked on a billable hour model.)

A story in the latest issue of The Economist points to a movement to pay advertising agencies for value, not hours: Clock-watchers no more. “On April 20th Coca-Cola said it would adopt a ‘value-based’ compensation system for the advertisers that do work for its 400 brands. Rather than paying advertising agencies for hours worked, Coke will pay for results achieved.”

The New Coke model covers an advertising agency’s costs, plus a bonus. The bonus depends on measured results, including overall performance, and the sales and market share of the products being advertised. Coke states that the goal of the program is not to cut costs, but to inspire creativity and efficiency.

I wonder if the legal department at Coca-Cola is following the lead of the advertising department?

Corporate Blogs and Tweets Must Keep SEC in Mind

ebayink

Richard Brewer-Hay made it into the Wall Street Journal and even got his photograph included. Who is he? He is part of the next wave of investor relations professionals who are using web 2.0 tools to provide investors with company information. In 2008, Richard started using a blog as part of eBay’s investor relations: eBay Ink Blog.

Richard then saw Twitter as a useful tool for sending out investor relations information. eBay’s lawyers even gave it their blessing. (After they found out about it and required some disclosure language.) The first big test was the March 11 shareholder meeting where he live tweeted from the audience, broadcasting the meeting beyond the four walls of the room.

The Securities and Exchange Commission laid the groundwork for this approach in the August 2008 Guidance on the Use of Company Website [Release 34-58288] (.pdf) The SEC stated that: “We acknowledge the utility these interactive web site features afford companies and shareholders alike, and want to promote their growth as important means for companies to maintain a dialogue with their various constituencies.” At today’s Society of American Business Editors and Writers convention in Denver, Mary Schapiro noted that the SEC favors greater and broader disclosure [using Twitter and other tools to communicate with investors] but that it hasn’t come to a resolution on the new technology.”

The first step is the analysis of whether and when information is “public” for purposes of the applicability of Regulation FD. In the guidance, the SEC laid out a three part test for “companies to consider whether and when: (1) a company web site is a recognized channel of distribution, (2) posting of information on a company web site disseminates the information in a manner making it available to the securities marketplace in general, and (3) there has been a reasonable waiting period for investors and the market to react to the posted information.”

The next step is to consider whether and when postings on their web sites are “reasonably designed to provide broad, non-exclusionary distribution of the information to the public.” (Rule 101(e)(2) of Regulation FD.

Lastly, the company needs to keep in mind that the antifraud provisions of the of the federal securities laws, including Exchange Act Section 10(b) and Rule 10b-5 are applicable to the content of its web site.

It was great to see eBay’s effort being lauded in the WSJ. It is strange that other companies have not joined the trend. I would guess that there is a lack of business results associated with the transition from web 1.0 to web 2.0. To make the transition, an investor relations professional would need to show that one of the following is true:

  • Increase in share price
  • Reduction in securities and shareholder litigation
  • Reduced costs
  • Increase in revenue

I think it is hard to show that they could achieve any one of these goals. Perhaps you could show that the content management of a blog is less expensive and easier to maintain than a commercial product. WordPress (which powers Compliance Building) is free and offers great content management tools.  You would also need to make the transition from using the public relations news wire services to the blog platform in order to comply with the selective disclosure rules of Regulation FD.

Personally, I think it is the better way to go. Companies can better control the message by using their own website to communicate with investors. But you nee people like Richard to prove the value proposition. We also need the SEC to take a better position on using these tools.

Are there other companies making the most of web 2.0 and joining the Investor Relations 2.0 movement?

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