Posts Tagged ‘SEC’

Boardroom Confidence Rebounds to Cautiously Optimistic

April 25th, 2013 | By

Since the financial crisis, uncertainty in regulatory activity has been the sole constant factor. Dodd-Frank, resulting activity from agencies such as the Securities and Exchange Commission (SEC), Public Company Accounting Oversight Board (PCAOB), and Federal Reserve, healthcare reform legislation, the JOBS Act, and now debates over the debt ceiling have kept those in the boardroom on their toes. Further, rarely have established economic indicators served as heralds of the market’s health—and this quarter proves no different. The metrics tell different stories: Executives think the economy is improving, but fewer mid-sized companies expect to increase capital spending. Consumer confidence fell nearly 10 points in March, but CEO confidence rose nearly 8 points in the first quarter. Similar to executives, directors are demonstrating optimism in the strength of the markets: the NACD Board Confidence Index (BCI) jumped almost 10 points in Q1 to an overall score of 61.

From one perspective, this improved confidence from both directors and executives may represent that business leaders have grown accustomed to the certainty of uncertainty. Despite insecurity caused by regulatory and geopolitical activity, the markets have shown slow but steady growth, which directors and executives seem more willing to bet on.

Looking at historical trends in director confidence, however, this first quarter jolt might not be much more than a blip. Consistently, the BCI score is most optimistic in the first quarter of the year. Throughout the rest of the year though, that optimism tends to dwindle and typically fails to reach that initial level. In 2011, Q1’s score of 64.9 lost more than one-quarter of its original value by Q3. In 2012, a similar trend occurred: the Q1 score of 60.6 dropped significantly, and each remaining quarter failed to regain such a level of confidence. In fact, in both 2011 and 2012 first quarter confidence was at least five points higher than the ensuing year’s average.

Interestingly, boardroom uncertainty may have manifested in a different metric—confidence in one’s own industry relative to the general economy. The first quarter of 2013 marks the first time that NACD’s BCI measure for overall board confidence in the market was substantially higher than the score for directors’ industries: 61 vs. 58, respectively. Since 2011, directors have scored their industry an average of 5.75 points higher than the overall index.

Although one could predict that this year will follow the observed trend of first quarter confidence dwindling through the rest of the year, several metrics show that boards may buck this trend. Setting it apart from prior first quarters, in Q1 2013, 36 percent more directors indicated their companies expected to expand their workforces in the next quarter. In comparison, those projecting to hire in Q1 2012 and Q1 2011 represented 14 percent and 16 percent declines from the previous quarters, respectively. Additionally, when asked about economic conditions in one year, directors responded with a relatively confident score of 65. The second quarter of 2013 will confirm whether this optimism is short or long term.

SEC Decision Allows New Method of Stakeholder Engagement

April 4th, 2013 | By

This week, the Securities and Exchange Commission (SEC) moved corporate disclosures into the year 2013, or at least 2010. In a release on Tuesday, the agency recognized that social media channels—including Facebook and Twitter—were acceptable methods of disclosure. The SEC included one caveat: investors must be made aware ahead of time that the company will utilize these channels for disclosure.

This move comes following scrutiny surrounding a tweet from Netflix CEO Reed Hastings in November 2012, which announced that subscribers had passed the achievement of one billion hours viewed. The SEC issued Netflix a Wells Notice, announcing the investigation of Hasting’s potential violation of Regulation FD, which requires companies to disseminate information in a way that does not favor one investor group over another.

After the investigation began more CEOs found themselves in hot water over social media postings. In January, Zipcar was forced to make a last minute filing to the SEC following CEO Scott Griffith’s tweet about Avis acquiring his company. Elon Musk, chief executive of Tesla Motors, also made headlines for his tweet about an upcoming announcement from the company.

The SEC’s decision to allow corporate use of social media to disseminate information is not completely unexpected. Since 2008, the agency has permitted the use of corporate home pages to disclose sensitive information—the subject of its release, “Guidance on the Use of Company Websites for Disclosure Purposes.” In fact, SEC representatives have encouraged delegates to NACD’s advisory councils to use corporate websites when providing additional details that go beyond what is required by public filings.

For directors, a group notoriously slow to adopt social media, the SEC’s decision could mark a significant shift in how companies disclose sensitive information, and investor relations generally. Starting with the 2009’s Proxy Disclosure Enhancements and reinforced by Dodd-Frank, the length of corporate filings has increased with the number of required disclosures. As a result, directors have been recommended to “tell their story,” going past boilerplate language to explain the rationale and strategy behind decisions.

First and foremost, it is critical that directors understand their company’s consumer and investor base. If these groups are active on Facebook and Twitter, the SEC’s decision to conditionally permit these as communication channels could provide a new method of engaging increasingly active stakeholder groups.

Discussion Topics for Compensation Committees in 2013

March 28th, 2013 | By

In 2012, the focus for those both inside and outside the boardroom was compensation. Although numerous rules mandated by Dodd-Frank affecting the compensation committee—say on pay and compensation committee and advisor independence—have been implemented, directors still brace for those to come: pay-for-performance disclosures, clawbacks, and median pay ratios. As such, it is expected that the focus on executive compensation will not shift dramatically in the coming year.

As boards head into proxy season, NACD has recently released a new white paper: Compensation Committee Priorities for 2013. With input from our National Compensation Committee Chair Advisory Council and partners Farient Advisors and Gibson Dunn, this report details the issues that the advisory council—and compensation committees across the nation—will discuss in 2013. The list includes:

  • Executive Compensation and Supplemental Disclosures. In recent years, investors, proxy advisory firms, regulators, and boards have significantly increased the level of attention paid to the compensation discussion and analysis, particularly as the source of whether pay matches performance. This year, the Securities and Exchange Commission is expected to issue proposed rules on Section 953 of Dodd-Frank entitled “Executive Compensation Disclosures.” Section (a) specifically addresses the disclosure of pay versus performance.
  • Realized and Realizable Pay. A significant issue underlies the provision in Section 953(a): a lack of standards surrounding the various terms referenced. Although Dodd-Frank requires that companies disclose “pay actually received” (generally referred to as “realized pay”), many companies choose to disclose “realizable” pay. Not only do companies use a range of definitions to calculate realizable pay, Institutional Shareholder Services has begun to use its own definition when assessing compensation.
  • Peer Group Selection. Selection of peer group continues to be a highly contested and critical action. If a company’s chosen peer group is incorrect in the eyes of shareholders or their advisors, all ensuing calculations based on this selection are incorrect. Furthermore, selections that raise red flags to investors or proxy advisors may lead to negative say-on-pay votes come proxy season.

For the rest of the issues likely to be discussed by compensation committees in 2013 and related resources, download Compensation Committee Priorities for 2013.