With the end of April 2011, it has been one-hundred days since shareholders were able to render advisory votes on the executive compensation provided at their publicly-held companies in accordance with rules adopted by the Securities and Exchange Commission ("SEC") in January 2011 ("Say-On-Pay").  These rules were promulgated under the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Reform Act").  Our Say-On-Pay Site provides periodic blogs on Say-on-Pay developments, along with an overview of the applicable rules and requirements, and there are also updated Say-On-Pay voting results and statistics.
 Continue Reading The First 100 Days of Say-On-Pay Mark Many More Failed Votes and the Advent of Say-On-Golden Parachutes

In New Mexico State Investment Council v. Ernst & Young LLP, 2011 WL 1419642 (9th Cir. Apr. 14, 2011), the United States Court of Appeals for the Ninth Circuit reversed the dismissal of securities fraud claims against an independent accountant, holding that the complaint pleaded particularized facts giving rise to a strong inference that the auditor acted with scienter when it certified the financial statements of its client, Broadcom Corporation (“Broadcom”). In doing so, the Ninth Circuit declined to apply a “rule of thumb” that a plaintiff bears a “heavier burden” in pleading a strong inference of scienter against an independent accountant than it would in a similar securities fraud action against in issuer or its executives.
 Continue Reading Ninth Circuit Reverses Dismissal of Securities Fraud Class Action Where Complaint was “Loaded with Specific Allegations” to Support a Strong Inference of Scienter

On April 6, 2011, Mary L. Schapiro, Chairman of the Securities and Exchange Commission ("SEC") sent a letter to Darrell E. Issa, Chairman of the Committee on Oversight and Government Reform, responding to a March 22, 2011 letter from Rep. Issa concerning capital formation issues. In her letter, Chairman Schapiro indicated that the SEC would consider revising the rules that govern the way in which small businesses are able to tap into equity markets in the new era of crowdfunding, social media and other new communications media that did not exist when the current SEC rules were established. Rep. Issa’s letter discussed a number of perceived problems encountered in recent securities offerings, including the January 2011 decision by Goldman Sachs and Facebook to offer shares in a $1.5 billion private offering only outside the U.S. In her letter, Chairman Schapiro indicated that the review is intended to give the SEC "a fresh look at our rules to develop ideas for the Commission about ways to reduce the regulatory burdens on small business capital formation in a manner consistent with investor protection."Continue Reading SEC Considering New Regulations Governing Capital Formation for Smaller Companies, Crowdfunding, Social and Other New Media

In Booth Family Trust v. Jefferies, No. 09-3443, 2011 WL 1237583 (6th Cir. Apr. 5, 2011), the United States Court of Appeals for the Sixth Circuit reversed the district court dismissal of a shareholder derivative action, holding that the special litigation committee (“SLC”) of the board of directors, which recommended the dismissal, was not sufficiently independent of management.  The Court reached its decision despite the fact that one of the two members of the SLC recused himself from considering claims against the defendant Robert S. Singer (“Singer”), CEO of Abercrombie & Fitch Co. (“Abercrombie”), with whom the SLC member had a personal relationship. In fact, the Court held that the SLC member’s recusal constituted an admission that he, and thus the SLC as a whole, lacked independence. This decision, which applies Delaware law, reinforces the high standard of independence imposed on members of SLCs.
 Continue Reading Sixth Circuit Reverses Dismissal of a Shareholder Derivative Action Based Upon the Lack of Independence of the Special Litigation Committee

In Matrixx Initiatives, Inc. v. Siracusano, No. 09-1156, 2011 WL 977060 (U.S. Mar. 22, 2011), the United States Supreme Court (Sotomayor, J.) held unanimously that the materiality of an alleged false or misleading statement or omission for purposes of pleading a violation of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Securities & Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5, is inherently fact-specific, depending upon whether a “reasonable investor” would have viewed the relevant information “as having significantly altered the total mix of information made available.” The Supreme Court declined to apply a “bright-line rule” that only “statistically significant” information regarding the safety of drug products is sufficiently material to support a Rule 10b-5 claim against a drug manufacturer based on a failure to disclose. This decision reaffirmed prior Supreme Court precedents holding that materiality is highly fact-specific, although it also made clear that the test of whether information is material is based upon an objective standard of a “reasonable investor.” The Court left open the question of whether a statistically significant reaction by the stock market in response to a corrective disclosure is dispositive to the question of materiality.
 Continue Reading United States Supreme Court Reiterates Materiality Standard For Securities Fraud Claims Under Rule 10b-5

The last three quarters have seen a rebirth of initial public offerings by special purpose acquisition corporations (“SPAC”) brandishing new features and creative solutions to the problems that contributed to the demise of the SPAC market in 2008. National securities exchanges have responded with new rules to facilitate new listings for SPACs.
 Continue Reading SPACs 2.0: New SPAC Rules Changes Approved By NASDAQ And NYSE AMEX And New Market Features Make SPACs A More Attractive Investment Vehicle In 2011

In the past year, a number of companies have amended their bylaws to require that shareholder derivative lawsuits are resolved in the Delaware Chancery Court. This recent spike in the use of company-friendly forum selection clauses comes at a time when lawsuits challenging mergers are rampant. According to Reuters, such lawsuits have tripled from 107 in 2007 to 335 in 2010, despite a decrease in deal volume.
 Continue Reading The Benefits And Challenges Of Forum Selection Bylaws

In City of Pontiac General Employees’ Retirement System v. MBIA, Inc., 2011 U.S. App. LEXIS 3813 (2d Cir. Feb. 28, 2011), the United States Court of Appeals for the Second Circuit delineated the standard needed to asses how much information a reasonably diligent investor must have about the facts constituting a securities fraud violation before those facts are deemed “discovered” for purposes of triggering the statute of limitations for a claim under Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Securities & Exchange Commission (“SEC”) Rule 10b-5, 17 C.F.R. § 240.10b-5.In doing so, the Second Circuit addressed the gap left by the United States Supreme Court in Merck & Co. v. Reynolds, 130 S. Ct. 1784, 1796 (2010) [see blog article here], where the Supreme Court expressly declined to prescribe a list of the facts needed to constitute a securities law violation for purposes of triggering the statute of limitations.
 Continue Reading Second Circuit Clarifies Standard Regarding Knowledge Of Facts That Constitute A Securities Fraud Violation For Purposes Of Triggering The Two-Year Statute Of Limitations For Rule 10b-5 Claims

Update:

The IRS recently came out with a Notice (Notice 2011-18) stating that, for transactions occurring in 2011, penalties will not be imposed against issuers for missing the deadline to file a return or post the tax return on the issuer’s primary public Web site (which generally was required 45 days after the transaction), provided that the return is filed or the posting is made by January 17, 2012.Continue Reading New IRS Reporting Rules for Stock Splits, Mergers and Acquisitions

Say-On-Pay Blogs and Up-to-Date Voting Results

Please read our latest update on Say-on-Pay and frequency voting results, which includes summary results and detailed company-by-company results.  The results are sorted by the company’s SEC filer status and by the date on which the annual shareholder meeting was held.  We will be regularly updating this information as well as periodically posting new  blogs in this section so please check back to obtain the latest results and commentary.Say-on-Pay essentially provides public company shareholders with the ability to render an advisory vote on the compensation arrangements for their company’s named executive officers.  In addition, shareholders also can provide an advisory vote on the frequency that their company will conduct a Say-on-Pay vote.  The blogs in this section provide further information on this new and important topic.If you have any questions regarding Say-on-Pay, please contact Greg Schick at (415) 774-2988 or gschick@sheppardmullin.com.

Continue Reading — Up-to-Date Say-On-Pay Voting Results —