Goodwin Procter’s Capital Markets practice has released a client alert on the SEC’s Division of Corporation Finance issuance of interpretive advice on how it will treat shareholder proposals under the “directly conflicts” and “ordinary business” exclusions under Rule 14a-8. The Staff will only conclude that a company can exclude a shareholder proposal because it directly conflicts with a management proposal if “a reasonable shareholder could not logically vote in favor of both proposals,” which will impose a “higher burden” on companies seeking to exclude a shareholder proposal. When evaluating shareholder proposals to determine whether a company can exclude the proposal under the “ordinary business” exclusion or must include the proposal because it relates to a significant social policy issue, the Staff will continue to evaluate shareholder proposals under its prior positions rather than adopting the new test adopted by the Third Circuit in Trinity Wall Street v. Wal-Mart Stores, Inc.
As mentioned in the Oct. 14 Roundup, the House has passed and sent to the Senate a bill that is intended to codify the so-called “Section 4(a)(1½)” exemption for resales of restricted securities. If enacted, the RAISE Act of 2015 would provide a clear legal framework for secondary markets of restricted securities and set forth specific criteria for the seller, purchaser and issuer of the securities and other conditions to be satisfied to qualify for the exemption. Goodwin Procter’s Capital Markets practice has released a client alert providing additional detail on the bill.
On Oct. 30 the FRB announced the proposal of a new rule that would strengthen the ability of the largest domestic and foreign banks operating in the United States to be resolved without extraordinary government support or taxpayer assistance. The proposed rule would apply to domestic firms identified by the FRB as global systemically important banks (GSIBs) and to the U.S. operations of foreign GSIBs. These institutions would be required to meet a new long-term debt requirement and a new "total loss-absorbing capacity," or TLAC, requirement. According to the FRB statement, in order to “reduce the systemic impact of the failure of a GSIB, an orderly resolution process should allow a GSIB to fail, and its investors to suffer losses, while the critical operations of the firm continue to function. Requiring GSIBs to hold sufficient amounts of long-term debt, which can be converted to equity during resolution, would facilitate this by providing a source of private capital to support the firms' critical operations during resolution.” Domestic GSIBs would be required to hold, at a minimum, a long-term debt amount of the greater of 6 percent plus its GSIB surcharge of risk-weighted assets and 4.5 percent of total leverage exposure, and a TLAC amount of the greater of 18 percent of risk-weighted assets and 9.5 percent of total leverage exposure. The U.S. operations of foreign GSIBs generally would be required to hold, at a minimum, a long-term debt amount of the greater of 7 percent of risk-weighted assets and 3 percent of total leverage exposure and 4 percent of average total consolidated assets, and a TLAC amount of the greater of 16 percent of risk-weighted assets and 6 percent of total leverage exposure and 8 percent of average total consolidated assets.
In the Oct. 28 Roundup we reported that the FDIC had joined the Federal Reserve, FCA, FHFA and OCC in approving a final rule to establish capital and margin requirements for swap dealers, major swap participants, security-based swap dealers, and major security-based swap participants regulated by one of the agencies ("covered swap entities"), as required by the Dodd-Frank Act. On Oct. 30 the agencies issued a joint release announcing the final rule. The agencies also announced the issuance of an interim final rule relating to the rule's exemption from margin requirements for certain non-cleared swaps and non-cleared security-based swaps used for hedging purposes by commercial end-users and certain other counterparties.
On Oct. 30, the SEC issued an order exempting certain large traders from the self-identification requirements and certain broker-dealers from the recordkeeping, reporting and monitoring responsibilities of Rule 13h-1 under the Exchange Act. Large traders report on Form 13H after reaching the threshold for reporting provided by the Rule. The order, made in response to exemption requests by the Financial Information Forum (FIF) and Securities Industry and Financial Markets Association (SIFMA), (1) conditionally exempts equity options market participants from the self-identification requirements of the Rule if they have not met an alternate threshold applicable to equity options trading, based on the gross premiums paid for the options as opposed to the value of the underlying stock at the time of trade; and (2) temporarily exempts broker-dealers until Nov. 1, 2017 from full compliance with the recordkeeping and reporting obligations of the Rule beyond those established in Phase One, which began on Nov. 30, 2012, and Phase Two, which began on Nov. 1, 2013 and was scheduled to be replaced by full compliance on Nov. 1, 2015.
On Oct. 30, FINRA filed with the SEC a proposed rule change to adopt FINRA Rule 4380, which would grant FINRA authority to designate member firms for mandatory participation in business continuity and disaster recovery testing under SEC Regulation Systems Compliance and Integrity (SCI). FINRA would use established criteria designed to ensure participation by members that it determines to be necessary for the maintenance of fair and orderly markets if the business continuity and disaster recovery plan is activated. Designated members may be required to, for example, process test scripts to simulate trading activity and to report the results to FINRA.
FINRA announced that Chairman and CEO Richard Ketchum plans to retire in the second half of 2016. The Board of Governors will conduct a search for his successor that will take into consideration internal and external candidates.