Investor Relations 2.0

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eBay took a bold move yesterday, using Web 2.0 tools for investor relations. During its first analysts’ meeting in three years, eBay management had a live twitter stream with live coverage of the meeting and bloggers with just less than live coverage of the meeting.

The securities industry seems to be struggling with Web 2.0 tools. (In fairness, most industries are struggling to with Web 2.0 tools.) Blame uncertainty about these relatively new tools. Blame securities class action law suits. Blame the SEC for a lack of guidance. It looks like eBay was tired of excuses and decided to jump into the world of Investor Relations 2.0.

An article from Dominic Jones of the IR Web Report caught my eye: SEC Disclaimers in the Age of Twitter. Was eBay really going to use Twitter as part of its investor relations? YES.

Apparently Richard Brewer had already been live-tweeting eBay’s quarterly earnings conference calls. Management knew he been using his eBay Ink Blog to report the quarterly earnings results, but were unaware of his use of Twitter. He was called in to meet with the lawyers. But rather than shut him down, they worked out some best practices.  They came up with New Social Media Guidelines for Reporting Company Information.

“Plain and simple, eBay Inc. is a public company and, as such, must comply with SEC regulations. We feel that these guidelines will make that compliance more transparent. What follows is by no means a final set of micro-blogging/live-blogging best practices for companies but it is a step – and a very significant one at that. Something that I realize I will have to refine and evolve over time.”

That seems very sensible. The SEC’s Guidance on the use of company web sites (SEC Release 34-58288) does not give the clearest guidance but certainly opens the way for public companies to use 2.0 tools as part of their investor relations.

Richard kicked off his live Twitter coverage of the meeting with the new disclaimer crafted just for Twitter:

ebay twitter disclaimers

Which included a link to the a longer legal disclaimer. Its more than 140 characters, but still very concise.

An interesting thing about Twitter is the ability to tag the updates, allowing others to follow on that same topic. Richard used #ebayinc. This allowed you to follow not just Richard’s updates, but all of the reactions to Richard’s updates.

Richard also compiled the twitter updates into a traditional blog post: eBay Inc. Portfolio Roadmap Preview by John Donahue. (Did I just call a blog post traditional?)

With all of that live information and feedback, eBay’s regular investor relations page looks very cold and lifeless. It does not seem to have as much information. Perhaps it is even less relevant?

In the end, Web 2.0 tools are just communication tools. They are not that different than traditional read-only web pages or email. They do allow for easier, faster and more robust communications. You can see the difference in the comparison between the traditional eBay Investor Relations website and the eBay Ink 2.0 website.

How is your company using web 2.0 tools for investor relations?

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Connecticut Hedge Fund Regulation

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The folks over at the Hedge Fund Compliance Blog point out that the Connecticut legislature has three bills pending that would regulate the hedge fund industry in that state. It seems strange that a state with such a big hedge fund industry would make their businesses more difficult. But these are strange economic times. It is too early tell if any of these will be passed and how they may be changed in legislative process. But it is worth keeping an eye on them.

Disclosure of Financial Information to Prospective Investors

Hedge funds domiciled in the state and with Connecticut-based pension fund investors need to disclose to prospective pension investors certain financial information, including detailed portfolio information. The act does not bother trying to define a hedge fund. [Raised Bill No. 6480]

An Act Concerning Hedge Funds

This one has a few things going on:

    • Connecticut-based hedge funds would have to meet higher accreditation standards for their investors. To qualify, the investor would have to have not less than $2,500,000 in investment assets and institutional investors would have to have not less than $5,000,000 in assets.
    • hedge fund managers would have to disclose to investors any conflicts before making an investment.
    • Hedge fund managers would have to disclose to investors any changes in investment strategy and the departure of key employees.
    • Hedge fund managers would have to disclose to investors any major litigation or investigation of the fund.

This act does not define hedge funds and leaves it up to the Connecticut Banking Commissioner to figure that out. [Raised Bill No. 953]

Licensing of Hedge Funds and Private Capital Funds

All Connecticut- based hedge funds would need to be licensed by the state. This act does not define hedge funds and leaves it up to the Connecticut Banking Commissioner to figure that out.[Raised Bill No. 6477]

The Subprime Boomerang: After the Writedowns Comes the Litigation

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Securities Docket put on a great webinar on The Subprime Boomerang: After the Writedowns Comes the Litigation.

Bruce Carton moderated a panel of Veronica Rendon of Arnold & Porter, Richard Swanson of Arnold & Porter and Jeff Nielsen of Navigant Consulting, Inc.

Jeff started off my showing how much complicated the picture is for securitized lending compared to traditional lend hold lenders. There is now a dozen + parties involved with very different interests. There are lawsuits between many of these relationships with fingers being pointed in many different directions.  There are also lawsuits within the parties as shareholders are bringing securities class action suits against the investors. Some of the parties changed roles through the the lifecycle of the loan. (Such as the originator becoming an investor.) Here is a snapshot of the parties:

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Jeff identified 866 subprime related federal filings, including borrower class actions, securities class actions, contract claims, employee class actions and bankruptcy related claims. Of those 576 are in 2008. California has 17% of the suits and New York has 33%. (California has some tough laws that are the basis of borrower lawsuits.) They are also seeing two new cases for every case that is resolved.

Veronica pointed out that the securitization market grew from $157 billion in 200 to $1200 billion in 2006. That was staggering growth over a very short period of time.

Now we are in a period of rising interest rates, declining home prices, rising unemployment and forced sales.

Unfortunately 50% of adjustable rate mortgage originations over past four years have been subprime. There was some bad underwriting with lots of no-doc loans and high debt-to-income ratios.

The current bulk of suits are now “stock drop” case because the institutions failed to disclose their exposure to subprime risk.

Richard focused on some interesting aspects of the pleadings, hearings and decisions coming out of the cases.

There are increasing suits by purchasers of subprime assets. Lots of the focus on misrepresentations in the offering documents and a failure to disclose risks. These are generally very sophisticated parties doing war including state law claims.

There are also criminal investigations on the horizon. Both the FBI and SEC are looking at possibly bringing charges.

You can listen to webcast and see the slides on the  Securities Docket Webcasts page.

SEC’s Notice and Access Rules: What Do They Mean For Your Company?

noticeandaccessComputershare has put together a White Paper that they distributed through Compliance Week: An Explanation of the SEC Notice and Access Rules: What Do They Mean for Your Company? (.pdf)[For Compliance Week Subscribers]

Pamela Eng, Product Manager for Computershare Investor Services takes us through The SEC’s Shareholder Choice Regarding Proxy Materials rules in Release No. 34-56135 (.pdf) issued July 26, 2007.

[I mentioned some of my confusion about the Notice and Access Rules in SEC Requirements for Online Annual Reports and Proxy Statements. (Thankfully, the rule is not in my domain.)]

Pamela points out that there are now three ways to provide annual meeting materials to shareholders:

  • Notice Only. You can send just a notice with a link to materials on the website.
  • Full-Set. When you send the full set of printed materials.
  • Mixed Set.  When you send some and leave the rest online.

The idea behind the “notice only” delivery was to save printing and delivery costs. Theoretically, the information is more useful online because it searchable and linkable.

It seems even Pamela is not completely happy with the rule. She offers six recommendations to the SEC on how the rule could be improved.

  • Allow more flexible timing for posting online documents
    We requested that the SEC allow the online documents to be made available one or two days
    after the initial mailing has been sent, rather than on the mailing date. This would give extra
    time for companies to get their documents approved and programmed for the website.
  • Allow more time to fulfill holder requests
    The rule gives only three days to fulfill requests for registered holders, yet gives nine days
    to fulfill the requests of beneficial holders. Our recommendation was to allow six days for
    fulfillment on both sides.
  • Change the 40-calendar-day timeline
    A number of companies had problems meeting the 40-day deadline for notice-only mailings,
    which led us to request that the deadline be moved to 30 calendar days before the meeting.
    Shareholders will still have plenty of time to request materials before the meeting date.
  • Allow educational information to be included with the notice-only mailing
    Because of shareholder complaints about confusion and issuer concerns about holder
    education, we advocated the inclusion of educational information with the notice. This
    information could explain the regulations and why holders are receiving a notice.
  • Allow the voting telephone number to appear on the notice
    The SEC was concerned about possible uninformed or capricious voting by registered holders,
    who would vote without first viewing the proxy materials, so it did not allow the voting
    telephone number to appear on the notice. We believe that holders understand the issues, and
    that allowing the number to be placed on the notice will help holders better understand the
    overall process.
  • Issue an FAQ, Q&A or other written clarification of the rules
    The new notice and access rules are potentially confusing to both issuers and shareholders, and
    confusion may increase as many more companies begin the process in 2009. We asked that the
    SEC issue some written clarifications, possibly including a frequently asked questions document
    (FA Q); a question and answer bank; or, in some cases, a rewrite of the rules themselves.

Online Social Networking: Is It a Productivity Bust or Boon?

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I recently had an article on Faceblocking published in the March 2009 issue of Law Practice magazine: Online Social Networking: Is It a Productivity Bust or Boon for Law Firms?

Steve Matthews and I conducted an informal poll to see if we could confirm that law firms were blocking access to social networking sites. Our theory was proven in the results. (You can download the raw survey data (.xls) if you want to see the underlying data.)

Of those responding to the survey, 45% said their firms blocked access to social networking sites. The three most blocked sites: Facebook, MySpace and YouTube. Those are also 3 of the top 10 most visited sites on the web. We also published some of written comments from the survey respondents: Speaking Out on Social Networking.

The survey is very unscientific. Steve and I thought that it would be useful to get some data about what law firms are doing about access to social networking sites. I was surprised that 45% of firms blocked access to some social networking sites. Perhaps those working at firms subject to blocking were more likely to respond to the survey. I was also surprised that the 45% blocking percentage was fairly consistent across firm size. So small law firms were just as likely to block access as big firms.

I conducted two surveys of the summer associates at my old law firm, the vast majority went to Facebook at least once a day. It seems to me that if you are recruiting young workers, you should not cut off one of the ways they communicate. Deacons published a survey indicating that an employer’s policy regarding on-line social networking would influence a significant percentage of workers’ decision to join one employer over another.

Although I am an advocate of open access, I do so with the caveat that you need to let the people in your organization know what is proper use and to monitor their compliance. I fear that many firms use blockage as their policy. That may have worked 10 years ago, but not today. You can just as easily access these sites from iPhone or blackberry as you can from a firm computer. Blocking does not stop the bad behavior that it is trying to prevent. Blocking merely changes the access method.

There is a fair amount of research, the most prominent of which are two reports from McKinsey, showing that access to social networks at work, coupled with a good policy results in a more engaged, more motivated and potentially more innovative workplace. You should set sensible policies and set reasonable expectations for your employees. Social networking sites at their core are communications platform. You should be able to adapt your policies on email, confidentiality, marketing and similar policies to easily include social networking sites. If not, those other policies probably need updating anyhow.

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FINRA Announces Creation of “Office of the Whistleblower”

finra_logoFINRA announced that they have created a new Office of the Whisteblower to expedite review of high-risk tips.  FINRA Senior Vice President Cameron Funkhouser will oversee this new office. What’s not clear to me is how this new initiative differs from the existing File a Regulatory Tip procedure.  According to the press release, this new initiative “will not replace the exist process for handling the thousands of tips and complaints that come through the existing hotlines.”

FINRA states that they receive between 4,500 and 6,000 formal investor complaints annually, which are vetted by FINRA’s Front End Cause Unit. (I find it interesting that the Front End Cause Unit is missing from the FINRA website.) I am not sure if these numbers include regulatory tips.

I am disappointed that the FINRA whistleblower lines vary widely in the information collected and the method of filing:

So what if I am an investor and I think my broker is violating a regulation and committing serious fraud. Do I fill out all three? Is there going be a turf war inside FINRA over who is handling which types of complaints?

It is a great move by FINRA to focus on the whistleblowing and complaint process. Unfortunately, it looks like they made it more complicated instead of easier.

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Cost-effective Compliance Risk Assessment

rees morrisonRees Morrison, publisher of Law Department Management,  is hosting a series of articles on Cost-effective Compliance Risk Assessment. This series is written by Jeff Kaplan of Kaplan & Walker LLP.

The first article was on Three trends regarding the costs of ineffective compliance. Jeff first focused on the increasing occurrence of the “mega fine.” Then noted that desperate times tend to breed desperate deeds. Lastly he noted that the new attorney-general is the same official who set compliance and ethics standards as part of the DOJ’s enforcement decisions.

The second article was on non-costly ways to achieve C&E program successes. Jeff noted that it is more cost-efficient to build the compliance assessment into other functions.

The third article focused on how to embed risk assessment into the process of drafting “third-party” codes of conduct. Jeff points out that handing your employee to third parties will just lead to confusion. In drafting a code, make sure you elicit comments from the people in the company with direct third party dealings.

Lawyer’s Noisy Withdrawal from Stanford Case

sjoblomLawyers must protect their clients’ confidence, but they can’t aid in the commission of a potential crime. The Wall Street Journal covered some of the facts leading up to the “noisy withdrawal” of Thomas Sjoblom of Proskauer Rose LLP from their representation of the Stanford Financial Group: Top Lawyer’s Withdrawal From Stanford Case Waves a Flag.

There was much consternation over the idea of an attorney whistle-blowing on her client back when Sarbanes-Oxley was adopted. Legal ethics, business ethics and ethics were at odds. An attorney is divided between doing what is right for society at large, for her client and her own income.

Lawyers represent guilty people. They are there to help them through the legal system and ensure the government did not overstep its constitutional limitations. Stanford was in trouble and needed the help of lawyers. In this time of crisis Stanford’s lawyer ended his representation.

Charlie Green finds much fault with the approach and found the use of “disaffirm” to be a bit trivial for the magnitude of the underlying scandal.  Stephen Gillers in his comment points out that “the word ‘disaffirm’ is actually a term of art in New York legal ethics.”

I am giving Mr. Sjoblom the benefit of the doubt that he did not find out about the fraud at Stanford until sometime in late January or early February when they had to respond to the SEC subpoena. It certainly sounds like the February 10 testimony of Laura Pendergest-Holt, a Stanford executive, in front SEC investigators did not go well. She got arrested and Mr. Sjoblom made his noisy withdrawal.

There is a lot of work ahead for Stanford’s lawyers in sorting out the facts, defending the company and defending the executives. Sjoblom stepped away from this representation and turned down hundreds of thousands if not millions of dollars or revenue to be made from the representation.

There is a big difference between defending a criminal and being a witness to a crime. It sounds like Mr. Sjoblom realized that he had become a witness to a crime and incapable of defense.

Someday we may hear the true story of what happened. As with the Madoff scandal, I am very interested in finding out the underlying facts. Did they start out bad? If they originally had good intentions, what made these people go bad?

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The Law:

17 CFR 205.3(b) provides:

Duty to report evidence of a material violation. (1) If an attorney, appearing and practicing before the [Securites and Exchange] Commission in the representation of an issuer, becomes aware of evidence of a material violation by the issuer or by any officer, director, employee, or agent of the issuer, the attorney shall report such evidence to the issuer’s chief legal officer (or the equivalent thereof) or to both the issuer’s chief legal officer and its chief executive officer (or the equivalents thereof) forthwith. By communicating such information to the issuer’s officers or directors, an attorney does not reveal client confidences or secrets or privileged or otherwise protected information related to the attorney’s representation of an issuer.

This regulation was promulgated under Section 307 of Sarbanes Oxley Act of 2002.

Twitter Good or Bad?

Most people are up in the air about what to do with Twitter. I thought I would put together two contrasting views.

First up, Evan Williams on how Twitter’s spectacular growth is being driven by unexpected uses:

And then Jon Stewart on why the Twitter Frenzy is silly:


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I Twitter (@DougCornelius), do you?

Federal Knowledge Management Working Group

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The Federal Knowledge Management Working Group consists of over 700 Federal employees, contractors, academicians and interested members of the public who have mounted a campaign to enhance collaboration, knowledge and learning in the Federal Government by implementing formal knowledge management.

Neil Olonoff, who is the leader for the initiative looking at the formation of a Chief Knowledge Officer for the federal government, sent me note about this impressive initiative.

Mission: Inform and support federal government departments, agencies, organizations, and their constituencies in the research, development, identification, and implementation of knowledge management (KM) activities, practices, lessons learned, and technologies. To accomplish this mission, the Federal KMWG will mobilize and leverage thought leaders and KM practitioners from government, quasi-government, academia, non-government, nonprofit, and the private sector around the globe.

They have already putting together a tremendous wiki full of information at KM.gov (which redirects to http://wiki.nasa.gov/cm/wiki/?id=1926).

I recommend taking a look at the PowerPoint presentation they posted on knowledge management is important to the federal government: Federal Knowledge Management Initiative (PPT). There are some great ideas that are can be reused for your organization.

UPDATE:

Jeanne Holm is the elected chair of the Federal Management Working Group. In the original post, I had identified Neil Olonoff as the holder of that position. Jeanne sent me a nice note with the clarification. You can reach Jeanne on Twitter @Jeanne_JPL.