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Coming soon: A newly enhanced SEC Filings page

November 14, 2016

On December 5, we’ll release an enhanced and redesigned version of our venerable SEC Filings page.  Although the new version will look and feel more like a LexisNexis search page, its functionality and essential character will remain very much Securities Mosaic.  Here’s a high-level overview of what you can expect:

  1. Simpler, sleeker and more elegant design
  2. Many new features and enhancements
  3. All existing features and search filters preserved

Lets’ go through each of these one by one. . .

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The newly designed search form, coming soon

1.  Simpler, sleeker and more elegant design

As you probably know, today’s Securities Mosaic SEC Filings page offers dozens of advanced search filters and cool user tools.  And it shows: with so many bells and whistles, the search page is reminiscent of the dashboard of a 747 jetliner.

In the new interface (pictured above), many search filters, rather than cluttering the main search page, will be accessible via dialog boxes.  What’s the benefit here?  If you keep your socks, shirts, and underwear in dresser drawers rather than on the top of your dresser, you’ll understand. The extra step of opening a drawer is a small price to pay for a cleaner, more organized bedroom.  Similarly, we believe users — especially new or less experienced users — will find the new search page more approachable and easier to navigate.

2.  Many new features and enhancements

Here are some of the more noteworthy additions:

  •  A library of predefined searches.  Access over 100 expertly-crafted search templates, from bear hug letters to poison pills to fairness opinions to crowdfunding and Regulation A+ offerings.
  • Post-search filters.  You’ll now be able to edit your search parameters without leaving your list of results.
  • Company list feature.   Filings results can be post-filtered by unique primary filer, to create a list of companies based on your search criteria.  For example, instantly create a list of manufacturing companies located in Wisconsin, or a list of Foreign Private Issuers that have done IPOs so far this year.
  • Expanded redlining.  Our redline comparison tool, available for item-level searches, will now be accessible to users accessing Securities Mosaic via IP authentication.
  • Links to associated Comment Letters.  From the results display, we’ll not only call out which SEC filings  are the subject of SEC Comment Letters, we’ll link directly to the complete chain of correspondence between the SEC and the filing company.
  • One-click batch download.   Instantly download to your desktop up to 100 documents at a time, in Word or PDF format, from the results display.
  • Enhanced text search hit navigation.  From the results display, see the total number of text search hits per document.  Even better, click a link to instantly see all the text search hits in context for a given result without having to open the document.

3.  All existing features and search filters preserved

In other words, we’ve only added, not subtracted.  There’s nothing you can do on the current version of our SEC Filings page that you won’t be able to do on the new version.

We’ll post links to additional materials, including a tutorial video, as the release date nears.

Donald and Hillary, meet EDGAR

November 3, 2016

With so much riding on Tuesday’s presidential election, it isn’t surprising that Donald Trump and Hillary Clinton are popping up in public companies’ SEC filings—especially when those companies perceive that they stand to gain or lose by the election of one candidate or the other.

Often these preferenclintonces run along predictable lines. For example, the CEO of firearms manufacturer Sturm Ruger & Co., in an Earnings Transcript included in a recent 8-K, registers his unease with Clinton’s views on guns (while also acknowledging that her election would likely have the effect of increasing demand for firearms). On the other hand, Guinness Atkinson Funds, with heavy investments in alternative forms of energy, sees a boon “[i]f Hillary Clinton wins the presidential elections in the United States and follows through with her campaign promise” to increase reliance on solar energy (Form N-CSR, 9/8/2016).  Similarly, American Growth Fund Inc., with investments in medical marijuana, is positively disposed toward a Clinton presidency, but isn’t so sure about her rival: “Donald Trump shifts back and forth on marijuana legalization. Early in the campaign he was open to letting states do what they wanted, then hetrump reversed course and took a stand against legalizing marijuana. Now he says he is 100% for medical marijuana, even though that contradicts the Republican platform” (Form N-CSR, 9/8/2016).

Some companies and funds express concern about what the mood for change —  as exemplified by the support for Trump and the recent Brexit vote — might portend for markets.  For instance, as Mutual of American Institutional Funds Inc. observes in a recent Certified Shareholder Report, “the U.S. presidential bid by Donald Trump is based on . . . populist themes, including anti-immigration and anti-globalization. The entire Western world seems to be in the throes of an anti-establishment mood, suggesting that the world order developed over decades may be in for change. The nature of change is uncertainty, and . . . markets do not like uncertainty.”  The perspective of AlphaMark Investment Trust, as communicated in a letter to shareholders, is at once less pessimistic and more cynical:

Our view concerning the election is neutral. If Donald Trump wins the election, it is our opinion that without backing in the U.S. Congress, his plans for making real change will fail. In essence, he has shot himself in the foot with his constant berating of anyone opposed to his ideas. If Hillary Clinton is elected, we also do not see much change happening and more of the status quo. Our opinion is: a Trump win means short term volatility and a Clinton win means longer term slower growth.

Finally, Genius Brands International, a kid-focused entertainment company, is similarly neutral in stance but contrastingly upbeat in tone.  “The business of making animated cartoons won’t be affected whether Hillary Clinton or Donald Trump is elected our next President. Changes in technology or new distribution systems only enrich the intrinsic value of animated cartoons. Strong cartoon characters don’t go obsolete and are not diminished by innovation. In fact, they are enhanced by it” (Form 8-K, 6/30/16).  If cartoons and other forms of escapist entertainment hold a mirror to life, we can only assume that they too are enhanced (and contorted) by the surreal, stranger-than-fiction, circus-like spectacle that is the 2016 Presidential election.  In any case, we’ll all be ready for a cartoon break when the election is finally over.

Enforcing FCPA violations, the SEC flexes its muscle

October 11, 2016

This year, the SEC has brought a record number of enforcement actions under the Foreign Corrupt Practices Act of 1977 against corporations or their executives for bribery of foreign officials. Below are summaries of three such recent high-profile actions.

GlaxoSmithKline plc

GlaxoSmithKline plc agreed to pay the SEC a $20 million civil penalty to settle charges that it violated the FCPA requirement to maintain accurate books and records when its China-based subsidiaries participated in pay-to-prescribe schemes in an effort to increase sales. In an administrative proceeding announced on September 30th, the SEC contended that sales and marketing managers within the company’s China-based subsidiaries took part in schemes involving the transfer of money and gifts to healthcare professionals in order to improperly influence them. This brought millions of dollars in increased sales of GlaxoSmithKline’s pharmaceutical products to China’s state health institustrong-armtions. The SEC alleged that the company failed to adopt an effective anti-corruption compliance program to identify and avoid these types of schemes. Since there was no such program, the improper payments were inaccurately reflected in GlaxoSmithKline’s books and records as legitimate travel and entertainment expenses, marketing expenses, speaker payments, medical associations payments, and promotion expenses. The SEC concluded that the company was in violation of the FCPA’s internal controls and books-and-records provisions. Without admitting or denying the allegations, GlaxoSmithKline settled the charges by consenting to the entry of a cease-and-desist order, agreeing to pay the $20 million civil penalty, and agreeing to report to the SEC for two years on the status of its remediation and compliance measures. The company has reportedly publicly apologized for its role in the scandal, put an end to doctor speaking fees, and completely ended quotas for its sales reps. It is also being reported that GlaxoSmithKline’s China subsidiary has tripled an in-house compliance team, which now checks every submitted receipt.

Och-Ziff Capital Management Group

On September 29th, the SEC announced that hedge fund Och-Ziff Capital Management Group agreed to settle civil charges of FCPA violations by paying the agency $199 million. In addition, Och-Ziff’s founder and CEO agreed to pay approximately $2.2 million to settle SEC charges that he caused certain violations along with the hedge fund’s CFO, who also agreed to settle the charges. After examining the way in which financial services firms were gaining investments from sovereign wealth funds overseas, the SEC determined that Och-Ziff used intermediaries, agents, and business partners to bribe high-level government officials in Africa. According to the SEC’s order, the illicit payments encouraged the Libyan Investment Authority sovereign wealth fund to invest in the hedge fund’s managed funds. Other bribes were paid to secure mining rights and improperly influence government officials in Libya, Chad, Niger, Guinea, and the Democratic Republic of the Congo. The SEC found that Och-Ziff failed to maintain proper internal controls to detect the bribes. The SEC also found that the hedge fund’s executives ignored red flags and corruption risks and allowed illegal transactions to proceed. In addition to the civil penalty, Och-Ziff will enter into a deferred prosecution agreement with the Justice Department in a parallel criminal proceeding and will pay a criminal penalty of $213 million. Och-Ziff also agreed to retain an independent compliance monitor for three years to guarantee that it stays within the law. The firm also promised to reinforce its internal controls to guard against future violations. Andrew J. Ceresney, head of the SEC’s enforcement division, noted that the hedge fund “engaged in complicated, far-reaching schemes to get special access and secure significant deals and profits through corruption.” According to DealBook, the SEC and the Justice Department are continuing the investigation of other individuals involved in the bribery. The Wall Street Journal added that Och-Ziff now also faces restrictions on how it conducts its fundraising. While the company will still be able to raise money from wealthy investors and institutions, it might first have to endure a lengthy and costly process of seeking approval from state regulators in jurisdictions where it solicits investors. This comes Och-Ziff did not seek an SEC waiver from additional penalties, which are otherwise imposed as soon as courts approve civil law enforcement sanctions or criminal charges.

Anheuser-Busch InBev

On September 28th, the SEC announced beverage and brewing company Anheuser-Busch InBev will pay $6 million to settle charges that it violated the FCPA and whistleblower protection laws in utilizing third-party sales promoters to pay off Indian government officials in order to increase sales and production, and then in attempting to silence an employee who reported the wrongdoing. As the company did not have adequate internal accounting controls to seek out and prevent such improper payments, it failed to ensure that transactions involving the promoters were properly recorded in its books and records. Kara Brockmeyer, Chief of the SEC Enforcement Division’s FCPA Unit, remarked that Anheuser-Busch “recorded improper payments by its sales promoters in India as legitimate expenses in its financial accounting, and then exacerbated the problem by including language in a separation agreement that chilled an employee from communicating with the SEC.” Without admitting or denying the allegations, Anheuser-Busch settled the charges by consenting to the entry of a cease-and-desist order and agreeing to report its FCPA compliance efforts to the SEC in addition to the monetary sanctions. The company also agreed to notify certain former employees that the company does not prohibit employees from contacting the SEC about possible law violations. According to the Wall Street Journal, the SEC has been making it a priority to end corporate efforts to silence prospective whistleblowers with restrictive separation agreements, and this is the fourth company recently penalized by the SEC for allegedly restricting the rights of departing employees.

New document display frame on Securities Mosaic SEC Filings page

September 19, 2016

Last week, we release a redesigned and enhanced version of our document display frame for SEC Filings. It’s only the first stage – a kind of sneak peek — of an ongoing complete redesign and enhancement of our SEC Filings search page, the bulk of which will be released later this fall. (More information on that forthcoming.)

The new document display optimizes presentation of the document text, re-establishing it prominently in the reader’s visual hierarchy and ensuring there is “breathing room” between text and the edge of the frame. The redesign also boasts two new feature enhancements:

Advanced text search capability added to document level.  Harness the power of Boolean connectors and nested search terms when you need to locate words or phrases within a document.  While we’ve long offered advanced text search capability on initial searching — and offer highlighted text hits from that initial search at the document view — we haven’t offered the ability to perform a new advanced text query within a particular document.  Your browser’s Ctrl-F command lets you find specific words, but it lacks the power and flexibility offered by advanced text search, where proximity, wildcard, and “OR” connectors are at your command.  On Securities Mosaic, you now have that capability.

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Navigation feature added to Reference Retriever.  Last year, we dramatically upgraded our Reference Retriever tool by adding, to the document text itself, hyperlinks to references made to other filings or exhibits.  Now, we’ve added a navigation component to the tool, allowing you to quickly locate those hyperlinked references. Just click the search icon, and all references within the document will be highlighted in green.  You can then arrow from one to the next; or click the hyperlink within the document to locate the referenced document.

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For some companies, Brexit hurts so good

August 15, 2016

Now that the initial shock of the Brexit vote has subsided, companies potentially affected by Britain’s anticipated break from the EU are beginning to play out the various scenarios for shareholders.  You can find corporate disclosure on the topic by looking at SEC, SEDAR and UK Filings made since the June 23 referendum.

If there is one word that epitomizes the tone of such disclosure, it is “uncertainty.”  While companies have a bit of a handle on the short-term impact of Brexibrexit-1477615_960_720t – most immediately and palpably, the overnight devaluation of the British Pound Sterling against the Euro and the US Dollar – things get fuzzier when it comes to the long-term horizon.  The biggest questions surround what market access will look like for UK companies doing business in Europe.  That risk, summarized in filings of various companies, is that the UK “could lose the benefits of global trade agreements negotiated by the European Union on behalf of its members, which may result in increased trade barriers which could make our doing business in Europe more difficult.”

With uncertainty comes anxiety.  But that’s not necessarily a bad thing for all companies.  Indeed, some corporations see in Brexit a business opportunity—an opportunity rooted precisely in that feeling of anxious uncertainty.  For example, there is a general belief that the post-Brexit hangover will compel regulators to keep interest rates low, which could foster growth in the financial services sector.  “Brexit will likely benefit us,” explains commercial lender Walker & Dunlop in its recent 10-Q, “as borrowers take advantage of low mortgage interest rates and as a ‘flight to safety’ results in an increase of global capital investments in U.S. markets, including commercial real estate, resulting in higher loan origination and investment sales activity.”

Similarly, the price of gold and other precious metals surged following the vote, with investors presumably seeking a “safe haven” from the volatility of the market.  Those positioned to profit from that circumstance have been quick to pounce on the opportunity. “A continued destabilization of the Europe may occur in the wake of last night’s historic vote in the UK to leave the EU,” intoned the CEO of Lomiko Metals Inc., a British Columbia-based mining company. A grim warning, to be sure, but one with a silver lining: “There is good potential for a renewed interest in junior mining stocks seeking commodities with good demand outlooks such as gold, silver, lithium and graphite.”

Finally, Brexit may emerge as a boon for the legal services industry. That, at least, is the conclusion of Burford Capital Ltd., a UK-based litigation finance firm. Burford provides capital to businesses and law firms to allow them to pursue litigation and other legal services.  Such services are likely to be in higher demand as a result of the UK’s referendum, the company explains in a recent Interim Results report:

Substantively, Brexit will give rise to significant uncertainty for businesses, and demand for legal services tends to flourish during periods of uncertainty, boosting our business collaterally.There is likely to be more litigation as a result of Brexit, and there is no catalyst for any reduction in the volume of litigation.

Once again, it is the “uncertainty” of the situation that creates the climate for business success. As the Burford report continues, “while we regret the macroeconomic disruption and upheaval that Brexit has already caused and doubtless will continue to cause, Brexit is not bad for Burford.”  For companies engaged in certain types of business, Brexit is good precisely because it is bad.

 

U.K. Filings are here, just in time for AALL

July 13, 2016

Our brand new U.K. Filings search page is now live! To access it, go to Securities Mosaic, click on the “International Filings” tab on the navigation bar, and select U.K. Filings.

The release is just in time for the annual meeting and conference of the American Association of Law Libraries, being held now in Chicago. If you’re attending AALL, please swing by the Lexis Securities Mosaic booth (#603) to say hello and to hear more about what we’AALLve done and where we’re headed.  I’ll be personally present at the booth during much of the show.

In addition, I’ll be hosting a special Exhibitor Showcase on Sunday, July 17 at 1:30 p.m. Get a sneak peek of our soon-to-be-released enhanced search environment for SEC EDGAR filings.  The new Securities Mosaic SEC Filings page features post-search filters, a library of predefined searches, expanded redline comparison tools, section searching on registration statements (S-1, S-3, F-1), instant document download, and links to associated Comment Letter correspondence.  I look forward to hearing your feedback.

U.K. Filings coming soon to Securities Mosaic

June 27, 2016

union-jack-1027898_960_720How will the U.K.’s “Brexit” vote – its historic decision to break from the European Union — impact business in the U.K.?  There’s no better window into companies than their required disclosure in compliance with securities regulations.  And while Lexis Securities Mosaic has long offered the ability to see SEC EDGAR filings made by British companies that are traded on U.S. exchanges, it hasn’t offered access to filings made with U.K. regulators for companies traded on U.K. exchanges.

Until now.

We at Lexis Securities Mosaic are excited to announce the debut of our U.K. Filings search page, coming the week of July 11.  We’ll offer a complete collection, updated daily, of filings available through the National Storage Mechanism of the UK Listing Authority, under the oversight of the U.K.’s Financial Conduct Authority.

Our collection includes all filings by companies that have issued equity securities via the U.K. trading markets, notably the London Stock Exchange and Irish Stock Exchange, going back to the late 1990s.  Find documents related to new listings of securities (prospectuses, listing particulars), periodic reporting and financials (annual reports, current reports, quarterly reports), ownership (including insider activities), and shareholder communication by way of annual general meetings.   There are about 75,000 records in all.

Users can search by document category, document type, filer, date, and advanced text search (supporting both Boolean syntax and natural language constructions).  Custom alerts, available via email or RSS, can be created based on queries.  Search results can also emailed to colleagues or exported into Excel format.

The U.K. Filings search page is included as part of your current Securities Mosaic subscription, and will be found under the “International Filings” search tab, next to SEDAR (Canadian) filings.

 

Securities Mosaic: Looking forward, looking back

June 21, 2016

In the second half of 2016, Lexis Securities Mosaic will be unveiling some major product enhancements, kicking off in early July with the addition of U.K. Filings from the National Storage Mechanism.  Check this blog next week for more detail on that content addition. And for those who will be attending the 109th annual AALL conference in Chicago next month, I’ll be hosting a special session dedicated toCategory cloud Securities Mosaic, offering a sneak preview of another major feature release coming in September.

As a general rule, though, Blogmosaic is your best source for news and information on Securities Mosaic, including what’s new and what’s on the horizon.  Indeed, a search on the blog’s archive proves the point.  If you click on the the “product enhancements” link in the blog’s “category cloud,” you’ll see a long (and impressive) list of noteworthy enhancements and content additions over the last several years. What have we done for you lately, you ask?  Now you know.  And the best is yet to come!

The Lexis Securities Mosaic Corporate Counsel Report is here!

May 25, 2016

We are proud to announce the inaugural issue of the bi-weekly Lexis Securities Mosaic Corporate Counsel Report.  This newest addition to our venerable suite of news emails is aimed at lawyers who represent the interests of corporations, offering a resource to help them keep on top of the fast-paced, multi-faceted, and rapidly changing world they inhabit.

If you’re a Securities Mosaic subscriber, you can check out today’s issue, hot off the press, here.  Or you can sign up to have the Corporate Counsel Report delivered to your email inbox every other Wednesday.Manage News  Just click on your name in the upper right hand corner of the Securities Mosaic website, select Manage News Emails, and opt in. (You can also go there to opt out – but why would you?)  A personal account is required to receive the Corporate Counsel Report directly; contact your librarian or account administrator if you have questions. Going forward, subscribers will also be able to retrieve or search across past issues of Corporate Counsel Report going back six months by navigating to our News & Blogwatch archive.

If you’re not a Securities Mosaic subscriber, click here to learn more about the Corporate Counsel Report and request a free trial.

 

Securities Mosaic introduces the Corporate Counsel Report

May 18, 2016

Next week, Lexis Securities Mosaic will unveil its first new newsletter in many years. Joining the ranks of the Daily Securities News, Blogwatch, and the various other publications that compose our highly regarded news service, the new Corporate Counsel Report represents our first news offering aimed at in-house counsel and the corporate lawyers who advise them.

The Corporate Counsel Report will be published bi-weekly, and will focus on current trends and hot topics from the previous two weeks in the areas of securities, M&A, and corporate governance.  The publication will typically include the following sections:

  • Top Stories is a wrap-up of noteworthy happenings from the previous two weeks, with links throughout to outside news sources and Lexis Securities Mosaic.
  • Law Firm Insights offers summaries of and links to selected pertinent law firm memos.
  • Notable No-Action LettersCCR screenshot also offers short summaries of selected content, with a focus on shareholder proposal issues.
  • Quick Hits includes compliance requirements, agency investigations, enforcement actions, and noteworthy M&A activity.

We’ll send the Corporate Counsel Report to many of our current Securities Mosaic subscribers every other Wednesday afternoon, beginning May 25.  You can email me directly if you have any questions: christopher.hitt@lexisnexis.com.

Regulation Crowdfunding is here

May 16, 2016

The new JOBS Act-mandated crowdfunding rules become effective today, May 16 — and already this morning offering statements on new Form C are rolling in.  If you have access to Securities Mosaic, you can see them by clicking here.

The crowdfunding rules are intended to offer startups and smaller, private companies an easier path to raising capital.  As we noted in our March 18 blog post on the topic, regulation crowdfunding allows for multiple investors to buy securities online via SEC-registered broker-dealers or “funding portals,” which must register with the SEC via new Form CFPortal.  Read more from the SEC on the new filings associated with Regulation C here.

First Crowdfunding Portal filing hits EDGAR

May 2, 2016

Last Friday afternoon – at long last — the first Form Funding Portal filing was approved by the SEC.  NextSeed US LLC, a funding platform based in Houston, gets the distinction as the first SEC-registered portal under Regulation CF, the JOBS Act-based crowdfunding rule.  See NextSeed’s 9-page Form CFPortal filing here.

As we discussed in mid-March, the process for becoming a crowdfunding portal under the new rules is onerous; but now that the first filing is here, it seems likely that many more will follow shortly.  Before long we can also expect to see Form C, the initial Offering Statement for issuers who offer or sell securities via an approved portal.  The corresponding rule becomes effective May 16.  That’s when NextSeed, according to an article in crowdfundinginsider.com, anticipates fielding offers on its website.

If you have access to Securities Mosaic, you can set up real-time alerts on incoming crowdfunding filings by running this search and saving as an alert or RSS feed.

UPDATE:  A second Form CFPortal filing has been made, posted to EDGAR today (though backdated to its original submission date of March 2).  The filer is CFS, LLC, a Virginia-based portal that plans to offer a platform at a website called CrowdFundingSTAR.com.

If Law Firms are Right, the “Panama Papers” Aren’t Going Away

April 22, 2016

In the wake of revelations that confidential data maintained by the Panamanian law firm Mossack Fonseca had been hacked – potentially exposing sensitive information from thousands of companies and individuals – a number of North American law firms have stepped forward to offer recommendations to clients potentially affected by the breach.  In Lexis Securities Mosaic’s Law Firm Memos database, we find seven client alerts dedicated to the “Panama Papers” story, with several others at least alluding to the unfolding scandal.

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For example, earlier this week Akin Gump Strauss Hauer & Feld published “The Panama Papers: Managing Corporate Risk and Uncertainty,” which identifies potential risk exposure in the areas of tax, anti-money laundering laws, congressional investigations, private litigation, and a corporation’s general reputation. The commentators at Akin Gump advise that companies take a proactive approach, including “review[ing] the names of the parties already released to the public to determine whether they are on the list or have any ties with those parties,” examining whether they have ties to Mossack Fonseca itself, and establishing a system to review further information as it is released.

If companies indeed proceed with an abundance of caution as Akin Gump recommends, it seems possible that those making regular SEC filings may deem it prudent to disclose, in their risk factors, connections to Mossack Fonseca or the firm’s past clients and associates (whether or not those connections have already been made public via the leak).  But none has done so yet, as a review of the Securities Mosaic Risk Factors page suggests.

That’s not to say the specter of the “Panama Papers” doesn’t haunt public company disclosure.  A search of our SEC Filings page with the phrase “Mossack Fonseca” in the full text search yields 76 results, distributed among 24 companies with apparent connections to the firm.  These include some U.S. companies as well as companies incorporated in tax havens such as Bermuda and the Virgin Islands.

We’ll keep you posted on any developments in this story as it progresses.

Activist Shareholder Uses Proxy Process to Target Gender Wage Gap

April 8, 2016

Natasha Lamb, the director of equity research and shareholder engagement at Arjuna Capital, the activist arm of Boston investment firm Baldwin Brothers Inc. and a shareholder in many of the U.S.’s biggest tech outfits, recently filed shareholder resolutions ahead of proxy season at several major technology companies, compelling each to consider a vote on equal pay transparency.  Lamb’s ultimate target is the nation’s persistent gender wage gap.  Today in the U.S., women are still paid an average of only 79 cents to every dollar earned by men.

“Our clients are interested in investing in such a way that they’re having a positive impact on the world with their money,” Lamb said. “We pick issues that we think are good for society, good for the environment, and will be good for the companies that manage them well.” Pay gap is an issue that specifically matters for investors because research has repeatedly shown that more diversity is tied to better performance; in addition, some investors want companies to get ahead of greater scrutiny that may be coming at the regulatory level. “It’s about protecting their brand and attracting women to their companies,” Lamb stated. “The technology industry lives and dies on innovation, and gender-diverse teams are shown to be a key factor.”

Yavuz_Sultan_Selim_Bridge_(Turkey)_under_construction_on_6_October_2015

Within 24 hours of Arjuna’s submissions, both technology companies announced that they intended to close the gender pay gap among their employees. Among the companies that Arjuna targeted this year, only one of them attempted to fight the proposal. That company sought permission from the Securities and Exchange Commission (“SEC”) to leave Arjuna’s proposal off its annual ballot, referencing “inherently vague or indefinite” language. “The legal argument they made was ridiculous,” Lamb said. “They said they didn’t think their shareholders would understand what the gender pay gap is.” The SEC determined  that the technology company should put the issue to a shareholder vote. Six days later, the technology company released its internal gender pay data and Lamb withdrew Arjuna’s proposal. The technology company noted that they pay their female employees 99.9% of what their male employees make (note that, according to a review that the technology company released last summer, women make up just 39% of its workforce and just 24% in management jobs).

The other technology company, which employs more than 18,000 people in 30 countries, called pay equity a core area of focus and promised to provide its gender pay equity policies and goals by October 2016 through “an all-inclusive report that looks at not only base pay and cash bonuses, but also the equity component,” said Lamb, who added that Arjuna will also be withdrawing its shareholder resolution seeking that technology company’s pay gap study. “We are now seeing real movement to address gender equity in tech and [the technology company] is among the companies leading the way,” Lamb said. She added, “What we know is that a ‘trust me, women are paid fairly’ approach is not enough, and a defensive approach to gender pay equity will not solve the problem … Fostering gender diverse teams leads to more innovative better performing companies. Companies can and should commit to closing the gender pay gap, as [the previous technology company] has done today. But it won’t happen without bold leadership.”

In addition to its filings at the two technology companies this proxy season, Arjuna, just one of a few investment firms pushing companies to close the gender pay gap, has also filed shareholder proposals at five other major technology companies. In February, another major technology company reported it had reached 100% gender pay parity, while yet another major technology company indicated that its female employees were making 99.6 cents to every dollar made by their male counterparts, excluding bonuses and stock.

Technology is not the only area where shareholders are making equal pay an issue. Boston-based Trillium Asset Management LLC is sponsoring a similar resolution requesting a report on gender pay at a major banking and financial services corporation’s April 26th annual meeting. The banking and financial services corporation opposes the resolution. Its proxy documents call a report on gender pay “costly and time-consuming,” which “in light of our many efforts in this area, would not offer shareholders meaningful additional information.”

Some of the companies targeted said they had been working on analyzing gender pay data long before Arjuna filed its proposals, and that Arjuna’s action was not what made them decide to go public with their statistics. Many technology companies have been increasingly transparent about their diversity data, willing to share often uncomfortable statistics about the low numbers of women in their technology and leadership ranks. Most of these companies have sophisticated HR departments that have for a long time had the capability to carefully analyze pay data. And, at a time when the issue has become a highly charged matter of public concern, these companies are seeing more demands for pay transparency from employees.

In the meantime, withdrawing a shareholder proposal should not essentially be considered a sign of defeat. Shareholders hardly ever get more than a few votes in favor of such proposals, and even if they did, the votes are advisory so the companies are not actually bound to follow through on the results. “The goal is not necessarily to have a high vote,” Lamb stated, “[t]he goal is to get the companies to act.”

Where are all the crowdfunding portals?

March 18, 2016

The recently adopted SEC rule on the regulation of crowdfunding, as mandated by Title III of the JOBS Act, requires that such offerings be conducted through an online crowdfunding platform operated by a registered intermediary.  Although old-school broker-dealers are technically allowed to act as such intermediaries, the rule also creates a new entity called a “funding portal” whose sole focus would be to host and facilitate the sale of crowdfunded securities.

crowdfunding

Image by Rocio Lara on Flickr. Some rights reserved.

Funding portals were eligible to register with the SEC beginning on January 29, 2016, using a new EDGAR form type called Form Funding Portal (indexed as “CFPortal”).  And thanks to its press release, we know that at least one would-be funding portal, StartEngine Capital LLC, threw its hat into the ring immediately.  But if you go to Securities Mosaic or sec.gov today and look for StartEngine Capital or any other funding portal, you’ll come up empty.  So what gives?  Where are all the crowdfunding portals?

In fact, the initial EDGAR submission is only an application for registration: the first step in a longer process.  By rule, a minimum of 30 days must pass before the registration may be declared effective by the SEC–though in practice that period of time is almost certain to be longer, as the entity must separately apply to FINRA for acceptance as a fund portal.  And that’s where things really get bogged down.

FINRA’s instructions make clear that applicants should file the initial EDGAR paperwork first, prior to initiating the FINRA application process.  A prospective portal must then jump through a number of hoops–including paying fees, filling out initial paperwork, and even submitting fingerprints—before it will be allowed to fill out FINRA Form FP-NMA, the actual application for fund portal status.  Only after that application is complete does the clock begin ticking on FINRA’s guaranteed 60-day window for turnaround.  And given all the machinations that kick in following the receipt of an application – a preliminary review, requests for further information (and possibly amendments to the original form), an interview conducted by video conference– it seems unlikely this time frame would end up being greatly compressed.

Still, we can assume Form Funding Portal will be hitting EDGAR before too long, perhaps later this month or sometime in April.  If you’re a Securities Mosaic subscriber, you can be one of the first to view the new filing, by signing up for a real-time SEC Filings alert on Form CFPortal.  Although the filing does not currently pop up as an auto-suggest in our Form Type box (since it has not yet been filed), you can still create a query for it by manually entering form type name.  Click here for a shortcut to the query that can then be set up as an email or RSS alert.

 

 

2015, The Year in Review— Brought to you by Lexis Securities Mosaic

February 17, 2016

The calendar has turned and 2015 is officially in the books. So what happened last year in the arena of corporate, financial and capital markets regeneric-calendar.pnggulation, compliance, enforcement and disclosure? Leveraging the data and resources available on Lexis® Securities Mosaic®, we can make the following observations about 2015:

Traditional IPOs have leveled off.  Searching for initial public offerings is easy on Lexis Securities Mosaic: just check the corresponding box on our SEC Filings page as part of your search. Looking at IPOs registered on forms S-1, S-11 and F-11, we saw 510 initial registrations in 2015, in line with the cumulative average over the last few years but down significantly from last year’s lofty 700.

Other avenues  of capital formation are on the rise.  2015 was a watershed year for offerings under Regulation D, with a record 23,000 registrations (on EDGAR Form D) last year.  Indeed, Reg D offerings increased for the ninth consecutive year, dating back to the overhaul of the registration process in 2008.  Similarly, an uptick in Form 1-A filings followed the adoption of JOBS Act-mandated Regulation A+ last June, with nearly as many Reg A offerings in the second half of 2015 as in the entirety of 2014.

M&A activity is at an all-time high.  By way of our Blogwatch and Law Firm Memos search page, the law firm of Paul, Weiss provides a nice summary of Mergers & Acquisitions in 2015, noting strong increases of 67 and 83 percent in global deal volume over the previous two calendar years respectively.  Average deal volumes also continue their steady ascent in recent years, both globally and in the U.S.

The proxy process remained in the spotlight.  Key developments in 2015 included the SEC’s reversal of its controversial decision to allow Whole Foods Inc. to exclude a shareholder proposal on the basis that it “directly conflicted” with a similar proposal by the corporate Board.  An avalanche of like-minded exemption requests followed that original decision: 54 in the three-month period leading up to the reversal (compared to only 20 in the previous year and a half – and of course, none since).  Meanwhile, proxy access continued to gain momentum.  Sidley Austin notes that 91 proxy access proposals were voted on in 2015 — up from 18 in 2014 — with 60% passing, up from 28%.

Continuing a trend, SEC enforcement was higher than ever.  As reported by Shearman & Sterling  in a recent 2015 roundup, the Commission filed 807 enforcement actions s last year and collected about $4.2 billion in disgorgement and penalties — both exceeding 2014’s then-record numbers.  To view those actions by action type, violation, defendant type, penalty amount and more, check out the Securities Mosaic SEC Enforcement Defendant Search page and review the specific details on these actions.

Dodd-Frank churns on.  Running a quick search on the Securities Mosaic® Dodd-Frank Rulemaking Tracker, we can see the publication of 45 Final Rules in the Federal Register by agencies implementing Dodd-Frank. That’s a bit of a drop from 75 last year (and a high of 118 in 2011), but it nevertheless is evidence that five and a half years after its passage, Dodd-Frank is still keeping federal rulemakers (not to mention attorneys and compliance officers) busy.

Still Embracing Abundance

January 28, 2016

“Embrace Abundance.”  As many of our loyal, long-time customers will recall, that was the tagline of Securities Mosaic (then Knowledge Mosaic) a few years ago, as we were engaged in an aggressive content expansion initiative that would complement our core Securities offering with administrative materials from dozens of federal regulators.  The most direct legacy of that vision today is our Laws, Rules, and Agency Materials search page, which still offers “abundant search” (not to mention alerting) across more than a thousand federal and SRO data sets.  You want Memoranda of Understanding from the CFTC?  Check. Dodd-Frank rulemaking from the Department of the Treasury? Check. FCPA enforcement releases from the Department of Justice?  Check. Current FINRA rules?  Check.  Want to search across all of them at once?  No problem.

Mosaic

A lot has happened to Securities Mosaic (not to mention the legal and securities market as a whole) since then.  But one thing that’s remained constant is our commitment to the concept of abundance.  Today more than ever, our product is distinguished by the breadth and abundance of its collection, which has continued to expand significantly in recent years.  To cite three prominent examples, we’ve exponentially increased our store of No-Action Letters, added a complete archive of SEDAR filings, and made available over 20,000 Private Placement Memoranda for issuances under Regulation D, Regulation S, and Rule 144A.

And we’re not stopping there.  Here’s a preview of what new content is coming soon to Securities Mosaic subscribers.  Within the next week or two, our PPMs database will be augmented by a second data source exclusively dedicated to recent 144As.  Jump on the search page in mid-February, and you’ll see an additional 400 such documents representing a thousand new unregistered securities offerings, with more in the pipeline.  Moreover, as Winter fades to Spring, we’ll debut another major new searchable database: UK Filings, featuring documents from the National Storage Mechanism of the UK’s Financial Conduct Authority.

With the addition of Canadian and UK filings– not to mention the thousands of non-U.S. prospectuses scattered throughout our PPMs database — Securities Mosaic takes a major step toward offering a content portfolio that better reflects the truly global and integrated character of Securities and Capital Markets in the 21st Century.  To embrace abundance means, in large part, to extend beyond the political boundaries of the U.S.  (To varying degrees, some of our competitors still tend to be confined in this way.)

It also continues to mean extending beyond, or recognizing the fluidity of, practice area boundaries.  “Securities” does not exist in isolation any more than the U.S. exists in isolation in today’s global economy.   Most obviously, M&A and Banking/Finance can be understood as adjacent practice areas, so often tightly intertwined with companies’ pursuits on the capital markets.  Factor in securities disclosure obligations by public companies, and an even broader picture emerges — encompassing any and all material corporate actions (especially if they are subject to regulation).

So Securities really is a mosaic.  And it includes a broad swath of content, not confined by arbitrary boundaries or locked up in silos.  We’ve understood that for a long time, and even as we’ve evolved and refined our product vision over the years, we’ve never wavered from this embrace of abundance. Sure, we’ll keep innovating and develop new functionalities and search capabilities (think: Reference Retriever, batch download, new filer type search fields) — but if the content isn’t there first, what good is searching?  Content is king.

New feature now live: Limit your EDGAR search to companies with these key SEC-recognized filer types

December 11, 2015

Users of the Lexis Securities Mosaic SEC Filings page are now able to limit their search by an array of filer-specific characteristics, including Accelerated status (Large Accelerated, Non-Accelerated, etc.), Foreign Private Issuer, and Well-Known Seasoned Issuer. See the complete list of new search filters below.

Most of these designations offer qualifying filers various regulatory accommodations, including exemptions from certain disclosure obligations.  In this way, they complement (and will be NEWadjacent to) our existing search field for Emerging Growth Company status under the JOBS Act, which we introduced two years ago.

Foreign Private Issuer (FPI):  As a way of encouraging foreign companies to access U.S. capital markets, the SEC historically has made significant regulatory accommodations to foreign companies that qualify as “foreign private issuers.“  (Not all foreign-incorporated filers qualify as FPIs; the coveted status is limited to companies that are truly foreign in nature – that is, without substantive ties to the U.S. in the form of significant stockholders, executives, assets, or business operations.)  Among the SEC filing requirements waived for FPIs are quarterly reporting obligations, proxy reporting, and disclosures for insider trading and executive compensation.

Well-Known Seasoned Issuer (WKSI):  As the name implies, a WKSI is an issuer with a proven track record, making it eligible to benefit from certain regulatory accommodations.  Most prominently, when an issuer qualifies as a WKSI, it can register its securities under the Securities Act of 1933 on a shelf registration that becomes effective automatically upon filing.  (The form type used is S-3ASR; the acronym is “Automatic Shelf Registration”). This streamlined process provides flexibility for a WKSI to time securities sales to meet market conditions, without waiting for the Division to review and comment upon a registration statement and declare it effective.

Business Development Company (BDC): A BDC is a special investment vehicle designed to facilitate capital formation for small companies. Although BDCs are a type of registered investment company, they are exempt from many of the regulatory constraints imposed by the Investment Company Act of 1940, including restrictions recently implemented as part of the Volcker Rule of the Dodd-Frank Act.   Consequently, BDCs have become increasingly popular.

Real Estate Investment Trust (REIT):  A U.S. company that acts as an investment agent specializing in real estate (including real estate mortgages) may qualify for REIT status, allowing it to avoid or substantially reduce corporate tax burden.  In return, the majority of a REIT’s earnings from its real estate holdings and operations are distributed back to shareholders.  Investors in real estate get in REITs a structure similar to what mutual funds provide for investment in stocks.  REITs typically own commercial real estate, ranging from office and apartment buildings to warehouses, hospitals, shopping centers, hotels and even timberlands.

Accelerated Status:  Refers to a range of five SEC categories dictating the relative stringency of a filing company’s obligations, and determined by its size (as measured primarily by public float). The largest filers, those in the “Large Accelerated” and “Accelerated” categories, are subject to the most onerous regulatory framework, including “accelerated” deadlines for the filing of their periodic reports. (Large Accelerated filers have an even shorter timeframe to file than Accelerated filers.)   On the other end of the spectrum, those filers qualifying as “Smaller Reporting Companies” enjoy scaled down filing obligations, including less detail required in 10-K and 10-Q disclosure.

The SEC’s Whole Foods reversal

December 1, 2015

It’s been a little over a month, presumably enough time for the dust to settle, since the SEC’s Division of Corporation Finance published its long-anticipated guidance  on requests to exclude shareholder proposals under subsections (i)(7) and (i)(9) of Securities Exchange Act Rule 14-8(a).

The October 22nd staff legal bulletin represents the Division’s response to a controversy from the past proxy season that centered around a No-Action Letter request from grocery retailer Whole Foods, Inc. (not the most likely poster child, by the way, for the rights of corporate boards over shareholders).  Whole Foods sought to exclude a shareholder proposal requesting a right of access for shareholders under Rule 14-8(a)(i)(9) by claiming thereconsider_Flickr proposal conflicted with its own alternative proposal. As J. Robert Brown Jr., Professor at the University of Denver Strum College of Law, details in a recent blog post, after the Division granted Whole Foods’ no-action request, it found itself inundated with requests from companies seeking similar relief, as well as a request for reconsideration by the Whole Foods shareholder. In response, SEC staff withdrew the no-action letter issued to Whole Foods, along with several other no-action letters, and declined to consider no-action requests under subsection (i)(9) during the remainder of the proxy season pending staff review of the rule.

In its legal bulletin, the Division indicated that it will reverse course in its application of Rule 14-8(a)(i)(9) going forward. The Division explained that it will no longer consider a shareholder proposal to be in direct conflict with a management proposal if a reasonable shareholder could logically vote for both proposals. The bulletin provides hypothetical examples of proposals that the Division would no longer consider to be in conflict, noting that although variations may exist between the shareholder and management proposals, “both proposals generally seek a similar objective … and the proposals do not present shareholders with conflicting decisions.” As Professor Brown points out, the guidance attempts to draw a clear line between conflicting proposals and merely alternative proposals, although he also notes that the guidance “leaves open the possibility that companies submitting alternative proposals can obtain exclusion of a shareholder proposal by arguing that the two proposals have sufficiently antagonistic terms, even though seeking the same broad goal.”

The staff bulletin also addresses potential confusion regarding the application of the ordinary business exclusion under Rule 14-8(a)(i)(7) in light of the U.S. Court of Appeals for the Third Circuit’s decision in Trinity Wall Street v. Wal-Mart Stores, Inc. In its opinion, the Third Circuit devised a two-part test to determine whether a shareholder proposal involving a significant policy issue transcends the ordinary business exclusion under the rule, concluding that the significant policy issue cannot involve day-to-day business matters. The bulletin noted that the Third Circuit’s interpretation of subsection (i)(7) departs from the SEC’s application of the rule, which does not make a distinction between a proposal’s significance and its transcendence and allows for a significant policy issue to transcend ordinary business operations even if it involves the daily business concerns. The bulletin indicated that the Division will continue to apply Rule 14-8(a)(i)(7) in keeping with its prior interpretation.

So how has the SEC guidance been received?  Initial reactions have been mixed.  The Wall Street Journal notes that proponents of proxy access including labor unions and pension funds lauded the staff bulletin as a welcome decision in support of shareholder rights, while groups representing CEOs cautioned that the guidance will confuse shareholders and create ambiguity in the results of shareholder votes. Although the implications of the SEC’s guidance will not become clear until proxy season commences, the initial evidence of the effect of alternative proposals on voting results does not reflect ambiguity or inconsistency. According to Professor Brown in a recent blog post, the last proxy season included seven instances where shareholders were presented with alternative proposals submitted by shareholders and management. In six of the seven cases one of the alternative proposals received a clear majority of votes, and in no instances were both proposals adopted. Professor Brown concludes that the initial data rejects the argument that the exclusion of alternative, rather than conflicting, proposals benefits shareholders.

The true test of the SEC’s guidance will, of course, come in a few months as the next proxy season begins and companies submit no-action requests to test the limits of the SEC’s interpretation. And, according to a recent article in Forbes, Whole Foods may once again be at the forefront of the debate, as it has already received a shareholder proposal seeking to revise its proxy access bylaw to allow investors to nominate a quarter of the board of directors, among other things. How public companies will address such shareholder proposals in light of the SEC’s guidance on shareholder proposal exclusions remains to be seen.

New Crowdfunding Rule: A Treat, or a Trick?

November 13, 2015

On October 30, the SEC finally adopted its long-anticipated Regulation Crowdfunding rules — a move that may have been seen as an early Halloween treat by smaller companies looking to raise capital (and investors looking to offer it).  The SEC voted 3-1 to approve equity-based crowdfunding rules, just three years after its original deadline to do so. Republican SEC Commissioner Michael Piwowar voted against the crowdfunding initiative, saying that the new rules were too strict, will discourage many companies from participating, and is overly paternalistic. Piwowar further contended that, by restricting the amount that people can invest, the SEC “cannot trust ordinary Americans … to be able to exercise appropriate judgment in how to spend or invest their resources.”

Under the new rule, small businesses will be allowed to raise up to $1 million per year from the general public through online platforms. Until now, the rules were limited to “accredited investors,” or those with either net worth of at least $1 million or had an annual income of at least $200,000. But now, or at least once the rules go into effect in 2016, just about anybody will be able to invest. In fact, in order to protect smaller investors from, for instance, putting all of their retirement savings into a promising investment that doesn’t pan out, the SEC approved very specific rules to limit how much a non-accredited investor can invest per 12-month period.

A Crowdfunding Website That Foresees the Benefits of the New Rule

Some equity-based crowdfunding platforms open to qualifying investors, such as Crowdfunder and Fundable, had already existed. However, the new rule makes it easier for small businesses and individual investors to participate, possibly even on bigger fundraising sites such as Indiegogo, which has been lobbying for crowdfunding for years and is enthusiastic about the new rule. Slava Rubin, CEO and co-founder of Indiegogo, stated that “[a]ll of us at Indiegogo are excited that the SEC is formally expanding the way in which everyone will be able participate in the entrepreneurial ecosystem through the amazing power of crowdfunding … We’re now exploring how equity crowdfunding may play a role in Indiegogo’s business model.” Rubin continued, “[i]t’s going to benefit a whole lot of companies – it could be the local coffee shop, and there will [be] opportunities for really interesting hardware and tech companies.”

This is the Sort of Thing That the New Crowdfunding Rule Is Seeking to Avoid

Had the new rule been in place years ago, investors in popular crowdfunding platform Kickstarter might have seen a return on their investments. In one example documented by the LA Times, virtual reality headset developer Oculus raised $2.4 million from nearly 10,000 investors on Kickstarter in 2012. After Facebook subsequently bought Oculus for $2 billion, the investors found out that they were never really investing in Oculus but, instead, merely received a “thank you” from the company or an unassembled prototype of the company’s Rift headset.

Initial Doubts

Even as many embraced the new rule, some wondered if it was less a Halloween treat than a trick.  The LA Times reported that many start-ups fail, and the new rule will allow inexperienced investors to invest in firms that have little oversight. Some critics warn this can be a problem, despite the SEC’s assertions that it will supervise the evolving crowdfunding environment. Other critics, including the Huffington Post’s Business Blog, have expressed their own doubts about the new rule, comparing its adoption to what happened during the Great Depression of the 1930s, when the SEC was formed in an effort to regain market stability.

Several crowdfunding websites not only have their doubts about the new rule, but they are also refusing to get on board with it. According to Financial Times, such websites, including Kickstarter, have stated that they will not open up their platforms to enable entrepreneurs  to raise equity following the SEC’s “liberalization.” AngelList, a similar platform that is aimed at more experienced and “accredited” investors, has noted that it will not lower its wealth threshold.

What You Need to Know Now

The SEC rule will go into effect 180 days after they are published in the Federal Register, and portals will be able to register with the SEC on January 29, 2016.