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And the Winner Is… The SEC Touts Record
Number of Cases for Its FY2015, and Highlights Innovative Firsts
Settlement
Scrutiny: The Decline of Delaware Disclosure-Only Settlements
Game of Phones:
Employer-Issued Smartphones and Employee Fifth Amendment Protections
Return of the Cyborg Part II: First-Ever SEC Cybersecurity Enforcement
Action Filed Against Investment Advisory Firm
Do Not Pass Go. Do Not
Collect $200?: D&O Insurance—Advance Warning on Fee Advancement
Baby You Can Drive My Car… Or Corporate
Jet: SEC Scrutiny of Executive
Compensation Perks Disclosures
Not a Coin Toss: Regulatory Agencies Bringing Enforcement Actions Against Virtual Currency Start-ups
In this our second edition of Fenwick’s Securities Litigation and Enforcement Newsletter, we continue to provide you with short insights about timely securities litigation and enforcement developments. This edition’s topics run the gamut—from Delaware Courts challenging long-standing disclosure only settlements—to what happens when the SEC cannot crack the code—to a bit about Bitcoin—to the always important question of who pays the bills. We hope you find these topics useful. If you have questions or something you want to see in the next edition, we would love to hear from you.
This issue of the newsletter was edited by securities litigation partners Michael Dicke, formerly the Associate Regional Director for Enforcement in the SEC’s San Francisco office, and Catherine Kevane, with substantial assistance from associates Diana Chang, Jennifer Ebling, and Shannon Raj.
The SEC’s enforcement numbers are in for its fiscal year ended September 2015, and to no one’s surprise, the agency filed a record number of enforcement cases. As announced on October 22, 2015, the SEC filed 807 enforcement actions – an almost 7% increase over the 755 enforcement actions filed in 2014. These actions resulted in approximately $4.2 billion ordered in disgorgement and penalties, which is up slightly from the $4.16 billion ordered in 2014. The release also highlighted several “first-of-their-kind” cases, as well as the SEC’s increasing use of cutting-edge data analytics to bring cases.
In the category of firsts, the SEC settled charges against private equity firm Kohlberg Kravis Roberts & Co. L.P. (“KKR”) for misallocating $17.4 million in “broken deal” expenses. According to the SEC, KKR incurred $338 million in such broken deal or due diligence expenses in pursuing unsuccessful deals. According to the SEC’s order, KKR did not equitably allocate those expenses, but instead allocated all the expenses to its private equity funds without giving any allocation to the private equity funds' co-investors, which consisted of KKR insiders and some large clients. According to the SEC, KKR failed to adequately disclose this practice, and “unfairly required the funds to shoulder the costs.” To settle, KKR paid nearly $30 million in disgorgement and penalties.
In another first, the SEC charged a bank, The Bank of New York Mellon Corporation (“BNY Mellon”), with FCPA violations. BNY Mellon was charged with providing internships to family members of foreign officials associated with an unidentified Middle Eastern sovereign wealth fund in order to maintain its contracts with the fund. The order also found that BNY Mellon lacked specific controls to curb improper hiring, and the bank paid $14.8 million in disgorgement and penalties to settle these charges.
The SEC also delivered on its stated commitment to employ advanced analytical tools to find misconduct. A recently unsealed complaint shows that the SEC charged 32 defendants in a cyber-hacking scheme that stole and traded on nonpublic corporate earnings reports to amass $100 million in illegal profits. The SEC froze $70 million and secured a $30 million settlement against two of the defendants. Andrew Ceresney, Director of the SEC’s Division of Enforcement, noted that the agency’s “use of innovative analytical tools to find suspicious trading patterns and expose misconduct demonstrates that no trading scheme is beyond our ability to unwind.”
Other significant cases include a continued focus on financial fraud cases and misconduct by investment advisors, including (1) a suspension order in 128 inactive penny stocks issued as part of the ongoing initiative, Operation Shell-Expel, to suspend trading in ever-increasing pump-and-dump schemes; (2) an order against BlackRock Advisors, LLC for failing to disclose conflicts of interest, which resulted in $12 million settlement; and (3) a settlement with First Eagle Investment Management, LLC for improper use of assets to pay for fund share distributions that resulted in a $40 million settlement.
The Bottom Line: The SEC is delivering on its promises to assert its presence in emerging areas of first impression and to use new, advanced technologies to root out perceived misconduct.
A new line of Delaware decisions promises to reshape settlement norms surrounding stockholder litigation challenging mergers. It will come as news to no one that, under today’s legal landscape, a shareholder lawsuit comes closely on the heels of virtually all large public company mergers. According to a 2015 Cornerstone Research study, in each year since 2010, over 90 percent of M&A deals draw a shareholder lawsuit. Until recently, the vast majority of these suits have resulted in quick court approvals of settlements that require only that the company make additional public disclosures and pay plaintiffs’ attorneys' fees, and in exchange provide broad releases for company and individual defendants. But of late Delaware courts have been pushing back and signaling that they will no longer sanction this practice, calling such settlement agreements nothing more than a way for plaintiffs' lawyers to earn fees.
Disclosure-only settlements were recently slammed on October 9, 2015, when the Delaware Court of Chancery rejected a settlement of the lawsuit stemming from Hewlett-Packard’s $2.7 billion acquisition of Aruba Networks. See In re Aruba Networks, Inc. Stockholder Litig., Cons. C.A. No. 10765-VCL (Del. Ch. Oct. 9, 2015). There, the parties negotiated an agreement under which defendants would provide supplemental disclosures in a Form 8-K, plaintiffs’ counsel would receive a fee award, and defendants would receive a global release of claims. Finding that the additional disclosures provided minimal value to shareholders, Vice Chancellor Laster stated, “[w]e have to acknowledge that settling for disclosure and giving the type of expansive release that has been given has created a real systemic problem.” He declared the settlement “outside the range of reasonableness” and said the case appeared to be set up as a case for plaintiffs' counsel to “harvest” fees “because there wasn’t a basis to file in the first place.”
This result was not entirely surprising: Less than a month earlier, the Court of Chancery expressed serious reservations about approving disclosure-only settlements in no uncertain terms. In that case, In re Riverbed Technology, Inc., Cons. C.A. No. 10484-VCG (Del. Ch. Sept. 17, 2015), Vice Chancellor Glasscock noted that, in the particular case before him, “the parties in good faith negotiated a remedy—additional disclosures…with the reasonable expectation that the very broad, but hardly unprecedented released negotiated in return would be approved by this Court,” but stated that such expectations would be “diminished or eliminated going forward.” Vice Chancellor Glasscock found particularly troubling the breadth of the release, especially when weighed against the value of the disclosures, which he compared to a mere “peppercorn.” This echoes comments made by Vice Chancellor Laster this summer in rejecting the settlement following Cobham plcC’s $1.5 billion Aeroflex deal. There, he declared a settlement providing only disclosures, plus two “tweaks” to the merger agreement, to mean that “[t]he class…gets nothing. Zero. Zip.” See Acevedo v. Aeroflex Holding Corp., No. 7930-VCL (Del. Ch. July 8, 2015).
The Bottom Line: It remains to be seen whether these recent decisions herald the end of disclosure-only settlements in Delaware. But given this trend, a Delaware corporation seeking to settle a merger suit should carefully consider additional settlement conditions, the language of its settlement release, and stand ready to demonstrate the proportionality between the settlement terms and the release itself.
A recent court decision holding that employees can claim the Fifth Amendment and refuse to unlock password-protected smartphones, even though the phones were issued by their employer for company business, demonstrates the increasing difficulty companies face in managing and protecting corporate information. The holding in SEC v. Huang, No. 15-269 (E.D. Pa. Sept. 23, 2015), arose following an SEC insider trading action against two former Capital One data analysts. Capital One had provided the SEC with the smartphones used by its employees, which had been issued by Capital One and which were used by the employees to conduct company business. However, the SEC was not able to access documents on the phones without first inputting the passcodes used to protect the phones. The company did not know the passcode, and as a matter of policy, did not ever require employees to provide the bank with their smartphone passcodes. Citing the Fifth Amendment privilege against self-incrimination, the employee defendants refused the SEC’s demand to reveal the passwords, and the SEC moved the court for an order compelling production.
In considering the SEC’s motion to compel, the court noted the importance of the issue:
We now consider another perspective on the interplay of mobile technology, employer rights and former employees' Fifth Amendment protections from disclosing personal secret passcodes created by Defendants, with their former employer's consent, to access the smartphones owned by their former employer.
Huang, at page 1. The court reviewed the long history of Fifth Amendment jurisprudence, noting that more than a decade ago, the Supreme Court differentiated the act of revealing “the combination to a wall safe” from “being forced to surrender the key to a strongbox,” as the first was testimonial rather than physical in nature. U.S. v. Hubbell, 530 U.S. 27 (2000). That opinion has been cited to allow a defendant to refuse to produce his computer passcodes, and the Eleventh Circuit has held that the Fifth Amendment protects an individual accused of possessing child pornography from having to decrypt a hard drive. See In re Grand Jury Duces Tecum Dated March 25, 2011, 670 F.3d 1335 (11th Cir. 2012); United States v. Kirschner, 823 F. Supp. 2d 665 (E.D. Mich.2010). In contrast, providing fingerprints to unlock a smartphone has been deemed not testimonial in nature. See Virginia v. Baust, No. CR14-1439 (Va. Cir. Ct. Oct. 28, 2014).
The SEC claimed that the two former employee defendants were corporate custodians of business records, which are not subject to Fifth Amendment protection, and thus should be compelled to disclose the passcodes to enable the SEC to obtain the business records. The court disagreed, finding that the SEC “is not seeking business records[,] but Defendants’ personal thought processes.” It highlighted the fact that Capital One had instructed its employees not to share or keep any records of the passcodes to find that “the act of producing their personal passcodes is testimonial in nature.” Thus, the court refused to order the employees to reveal the smartphone passcodes.
The Bottom Line: In a world where employer-issued smartphones are increasingly commonplace and used to conduct critical business in real-time, the Huang decision poses new challenges not only for government investigators, but also for companies seeking to protect and manage corporate information. In light of Huang, companies would be wise to evaluate their device and password policies to ensure that they address the new and emerging technological and business realities.
As our last newsletter highlighted, the government is ramping up enforcement investigations against both regulated entities and public companies for perceived cybersecurity failures. Proving the point, on September 22, 2015, the SEC announced its first-ever cybersecurity enforcement action. The SEC alleged that registered investment adviser R.T. Jones Capital Equities Management failed to establish cybersecurity policies and procedures reasonably designed to safeguard customer information, as required by Rule 30(a) of Regulation S-P under the Securities Act of 1933. The SEC found that the firm failed to conduct periodic risk assessment, implement a firewall, or encrypt sensitive customer information prior to a data breach that compromised the personal information of approximately 100,000 individuals, including many of the firm’s clients. Without admitting or denying the SEC’s findings, the firm agreed to be censured and pay $75,000 penalty to settle the matter.
The SEC has been messaging for some time that it would bring an enforcement case against a regulated entity for violation of the specific cybersecurity rules in Regulation S-P, and similar actions are likely to follow shortly. In the wake of the R.T. Jones announcement, SEC Chair Mary Jo White warned “it is incumbent upon private fund advisors and other regulated entities to employ robust, state-of-the-art plans to prevent, detect, and respond” to cybersecurity risks. And while public companies are not subject to Regulation S-P or any specific SEC rules about their cybersecurity practices, the SEC has signaled that it is closely examining the accuracy and completeness of public company disclosures about their cyber policies and risks to the business from a cyber incident, as well as disclosures following a cyber breach.
The Bottom Line: Expect additional SEC scrutiny of cyber policies and practices of both regulated entities and of public company issuers.
In a recent string of decisions, the Delaware Chancery Court has addressed the scope of the right of Directors and Officers to have their legal expenses paid while governmental investigations or legal proceedings against them are pending.
In Blankenship v. Alpha Appalachia Holdings, Inc., decided last spring, the former CEO and Chairman of Massey Energy Company, Don Blankenship, retired “not entirely voluntar[ily]” following a deadly explosion at one of the company’s coal mines. C.A. No. 10610-CB (Del. Ch. May 28, 2015). Shortly thereafter, the company was acquired by Alpha Natural Resources and the former CEO signed a new undertaking stating the company’s advancement of his legal expenses was contingent upon his representation that he “had no reasonable cause to believe that [his] conduct was ever unlawful.” Initially, the company paid Blankenship’s legal expenses arising out of the government’s investigation of the explosion. But the company ceased paying such expenses when Blankenship was criminally indicted, concluding that Blankenship had breached his undertaking and was no longer entitled to advancement.
When Blankenship initiated an action seeking advancement of his defense costs, the Court of Chancery observed the facts fit the “all too common scenario” where “mandatory advancement” to a former director and officer is terminated “when trial is approaching and it is needed most.” The court found that Blankenship’s advancement rights under Massey’s charter survived pursuant to the merger agreement. Relying on contract interpretation principles, the court further found the undertaking in the agreement between Massey and the company could not be construed to alter the company’s advancement obligation. Thus, the court concluded Blankenship was entitled to advancement of his defense costs.
The Blankenship decision is consistent with Holley v. Nipro Diagnostics, Inc., a Court of Chancery ruling from last year. C.A. No. 96779-VCP (Del. Ch. Dec. 23, 2014). In Holley, the court held the founder and chairman of a medical device company was entitled to advancement to pay for the cost of defending an SEC civil enforcement action for insider trading after pleading guilty to criminal counts arising out of the same conduct.
As a September 2015 Delaware Court of Chancery opinion demonstrates, however, there can be limitations to advancement rights. In Charney v. American Apparel Inc., the court held the founder and former Chairman and CEO of American Apparel clothing company, Dov Charney, was not entitled to advancement to cover the legal expenses he incurred while defending an action brought against him by the company. C.A. No. 11098-CB (Del. Ch. Sept. 11, 2015). Previously, following the Board’s suspension of Charney, the Board and Charney, in his personal capacity, entered into a standstill agreement and Charney resigned as a director of the company.
Some months later, the company sued Charney for allegedly breaching the standstill agreement for, among other things, discussing with a private equity firm a potential takeover of the company. Charney then brought an action seeking advancement to cover the costs of defending the company’s action. The Court of Chancery found that the indemnification agreement mandating advancement for events “related to the fact” that the founder is a director or officer of the company should be construed to require “a nexus or causal connection between the claims in the underlying proceeding and one’s official capacity” in order to obtain advancement. The court concluded that because none of the claims in the proceeding for breach of the standstill agreement “implicate his use or abuse of corporate power as a fiduciary” of the company, Charney was not entitled to advancement to defend against the claims. The court separately also concluded that Charney was not entitled to advancement because the company’s charter mandated advancement only for current directors and officers.
The Bottom Line: Delaware law provides strong protections for the right of directors and officers to obtain advancement of legal expenses incurred for investigations or claims causally connected to their positions, but these protections are not ironclad. Directors and officers should be aware that they may not be entitled to advancement to cover legal fees to defend actions that do not arise from their official fiduciary duties. Companies may want to review their governing documents and advancement provisions in light of these recent decisions to ensure that they clearly reflect the company’s intent regarding the reach of advancement.
The SEC continues to focus on accounting and disclosure violations, including in the area of executive perks disclosure in corporate proxy statements. In the past year, the SEC brought two enforcement cases against executives and companies for failure to fully disclose executive perks. In one of the matters, the SEC took the unusual and provocative step of suing the company’s audit committee chair because he “had reason to know” that the perks had not been fully disclosed in the company’s SEC filings. Taken together, these two actions are a harbinger of the SEC’s intensifying scrutiny of executive compensation disclosures.
Under Rule 14a-3 of the Securities Exchange Act of 1934, companies with Section 12 registered securities must provide proxy statements that include executive compensation disclosures in accordance with Item 402 of Regulation S-K prior to shareholder meetings. In turn, Item 402 requires disclosure of the total value of any executive perks which exceed $10,000 in a given year. The failure to disclose such executive perks may violate Rule 14a-9 which prohibits corporations from issuing proxy statements containing materially false or misleading statements or omissions.
On March 31, 2015, the SEC filed a fraud complaint against Andrew Miller, the former CEO of San Jose-based company, Polycom, Inc. (“Polycom”), for failure to disclose almost $190,000 in executive perks in its proxy statements. In what the SEC called an “expense abuse scheme,” Miller allegedly described extravagant personal expenses, like trips to Bali with guests, as legitimate company expenses. The SEC further alleges that Miller directed that personal or other expenses be buried in other budget items. The SEC is litigating its case against Miller in federal court, and Miller resigned from Polycom in July 2013.
The SEC also charged Polycom in a separate order that included allegations that the company violated the internal controls provisions of the securities laws by allowing Miller to self-approve certain of his own falsified expenses, book and charge travel without valid business descriptions, and issue company purchasing cards to himself and his assistants to charge his certain personal expenses. The SEC order found that Polycom violated the proxy disclosure rules by failing to report the perks detailed in the complaint against Miller, notwithstanding the fact that there was no allegation that anyone at the company knew about the fraudulently obtained perks. Polycom paid $750,000 to settle all charges.
Just a few months later, the SEC brought and settled charges against MusclePharm Corporation (“MusclePharm”), several of its executives, and its former audit committee chair for failure to disclose nearly $500,000 in executive perks, including meals, private cars, golf memberships, and other lavish personal expenses. MusclePharm, a sports nutrition and supplement company, settled these charges and the company and individuals each paid a civil penalty. Notably, MusclePharm was also required to hire an independent consultant for one year to review expense reporting and recommend proper financial disclosure policies.
The Bottom Line: As highlighted by Andrew J. Ceresney, Director of the SEC’s Division of Enforcement, “[e]xecutive compensation is material information for investors, and companies must ensure that perks it pays for executives are properly recorded and disclosed in public filings.” Companies should consider that highly visible perks provided to executives -- such as use of the company jet, club memberships, and the like -- will receive extra scrutiny by the SEC and thus warrant additional consideration both in approving and disclosing the perks. Boards and compliance personnel of public corporations need to ensure that their companies have proper controls to approve and account for the value of perks, and that the proxy disclosure rules are then scrupulously followed.
The Commodity Futures Trading Commission (“CFTC”) and the SEC are flexing their regulatory muscles to rein in securities and commodities rules violations by start-up companies in the virtual currency space. On September 17, 2015, the CFTC settled charges against SF-based company, Coinflip, Inc. (“Coinflip”) for violations of the Commodity Exchange Act. Just a week later, the CFTC also settled charges against a temporarily registered swap facility, TeraExchange LLC (“TeraExchange”), for failing to enforce its rules against wash trading. Similarly, the SEC has brought several enforcement cases against bitcoin operators within the past 18 months, after declaring that interests tied to the value of virtual currencies are securities subject to SEC regulation. The agencies’ increasing interest in regulating and enforcing rules around digital currencies comes amid growing acceptance of virtual currency like bitcoin, as well as a massive run-up in price for bitcoin this month.
The CFTC’s action against Coinflip is noteworthy as the first time that the agency has held in an enforcement case that bitcoin and other virtual currencies are commodities subject to the Commodity Exchange Act. Coinflip operated an online platform for about 400 buyers and sellers of bitcoin-based derivatives, called Derivabit. In its order, the CFTC found that Coinflip and its chief executive officer, Francisco Riordan, failed to comply with CFTC regulations and the Commodity Exchange Act, including regulations requiring registration of facilities dealing in commodity transactions. The charges were settled without monetary sanctions. The Coinflip and TeraExchange cases follow a statement from CFTC Chairman Timothy Massad in December 2014 that “[d]erivative contracts based on a virtual currency represent one area within our responsibility.”
The SEC also has been steadily staking out its territory as an enforcer of securities laws for interests tied to the value of virtual currencies. Following its May 2014 Investor Alert detailing the risks of virtual currency, the SEC brought several enforcement actions against bitcoin industry operators. In addition, news reports and court filings reveal that the SEC is investigating GAW Miners (“GAW”) and its Chief Executive Officer, Josh Garza. The investigation is examining whether GAW’s sales of its mining technology product and virtual currency, paycoin, violated the anti-fraud provision and other provisions of securities laws. Significantly, a number of the SEC enforcement investigations are being conducted by members of the SEC’s Digital Currency Working Group, indicating that enforcement resources are flowing into investigations focused on the virtual currency arena.
The Bottom line: Digital currency like bitcoin will continue to attract innovators and will continue to gain acceptance. But as the CFTC’s Director of Enforcement recently said, “innovation does not excuse those operating in this space from following the same rules.” Regulatory agencies like the SEC and CFTC will continue elbowing each other to assert enforcement jurisdiction over the virtual currency market. Companies and individuals operating in this space should be prepared to deal with changing regulations and the potential for multiple agencies attempting to regulate the same transactions or conduct.
