SEC Proposals for Investment Advisors

The SEC yesterday proposed significant new regulations affecting the relationship between investment advisors and retail customers.  In substance, proposed Regulation Best Interest would establish a duty for registered advisors and retail brokers to act in the best interest of the customer in recommending securities or strategies, putting the economic interests of the customer first.  This reflects the SEC position that advisors and brokers function as fiduciaries, which in turn places a high burden on the advisor.

Additionally, the SEC proposed yet another form, CRS, a short-form disclosure describing the relationship in simple terms; registered advisors and brokers would both be required to comply.

In substance, major disclosures to be required: any conflicts of interest, an obligation to understand investment products proposed and that they are believed to be in the customer’s best interest.

Details abound.  There is a ninety day comment period after which the SEC may promulgate its new regulations, amend them, or withdraw them.

Who Owns Corporate Culture?

It depends whom you ask.  The cultural values of a company are transmitted downstream by the CEO, but the Board of Directors names and monitors the CEO and is responsible for the culture evidenced at the Board level.

Since the Board is responsible for selecting the CEO, or replacing the CEO if either performance or cultural issues arise, the buck stops at the top.  But how does the Board, with limited time to spend on its tasks, gather insights sufficient to measure the cultural temperature of the entire organization?  This question occupied much of the attention of the panel convened today in Boston by the New England Chapter of the National Association of Corporate Directors.

Some tools: directors should talk to many executive and non-executive employees not in the CEO’s presence, asking open-ended questions to foster rambling information; directors should obtain detailed metrics on departures from the company by location and job description and sex and ethnicity; directors should ask the Compensation Committee to consider culture and talent, as well as statistical metrics, in awarding compensation; directors should put “culture” formally on their agenda, as ERM tends not to pick up this aspect of performance; as culture starts at the top, directors should establish and enforce a culture of the board room, bearing in mind that even one errant director, or CEO, can alter the content and enforcement of cultural values.

There was brief mention of, but seemingly implicit consensus for, the proposition that millennials are more overtly focused on good corporate culture.  I wonder if that is correct in the long run.  The purity of cultural values for younger generations tend, to my experience, to give way to an acceptance of compromise and expediency; and today there are many more companies founded, led and/or staffed with younger people in our tech economy, creating a sense that the younger players are better at establishing an open and honest cultural enterprise.  But observing the actions of young founders of major companies who are now “aging,” we may be looking at a passing  phase of millennial respect for culture, on the road to its deterioration.  We heard no discussion of whether the reputed millennial focus on good corporate culture is likely to be transitory.  I remain (perhaps predictably) convinced of the value of mature executives and directors applying experience to the task of enforcing cultural standards in the face of the push for rapid results.

The panel also noted that most acquisitions “fail,” largely due to differences in culture between acquirer and target.  It is time-consuming and difficult to change the culture of a target.  It was suggested that acquisitions by PE firms may be particularly culture-endangered; PEs are all about boosting sales and using leverage and exiting the enterprise in 3-5 years, and are often tone-deaf (it was alleged) to different values held by target management (and by, often, multiple successor CEOs who do not appreciate the PE approach).  It was suggested that M&A should stand for “Murders and Acquisitions” as PEs set goals inconsistent with ambient thinking.

The Color of Science

FIRST runs robotics competitions for High School students.  The competition ends with a national championship round in Detroit.  But yesterday, the Greater Boston Regionals were held at Revere High School, outside of Boston.  It was an education.

There were about 64 teams competing; each team had at least a half-dozen members plus related parents and fans and coaches in the packed stands.  Some teams had upwards of twenty members.   There were many hundreds of people in attendance, I venture to say a couple of thousand although I have no reliable figures.

Where are all the high school students of color?  Yes, I admit it, I took an informal head-count.  There were many Asian students, a few I would guess to be from India or environs, and perhaps a dozen kids of African descent.  I know it is obnoxious to keep an unscientific count, as well as offensive in its own right; and I am sure my numbers are off, but — globally, I am correct, no doubt about it.

It was so skewed in favor of white faces that for a moment I thought I was in the stands at Fenway Park.

FIRST stands for  For Inspiration and Recognition of Science and Technology.  It is a progressive organization dedicated to fostering science throughout local communities.  Teams from over much of Northern New England competed yesterday; an “alliance” led by the much-revered NUTRONs took first place (my son’s Newton-based Ligorbots were on the second place alliance and move onward in the competition).  FIRST’s publicity photos show racially diverse students, from the grade school program on upwards through high school.  Why then were there so few people of African descent in the competition?  And only one team with more than one African-American (as best I could tell).  Boston as a city is 45% white, although the affluent suburbs have a very different composition.  This competition was overwhelmingly white.

Is it the schools?  Is it money (the robots and related gear are expensive, complex, require money to support the team, not to mention that you need trucks or trailers or vans to transport robots the size of your desk to and from events)?  Are there coaches in the neighborhood with the skill sets to mentor, corporate sponsors, batteries, T-shirts, mascots, metal shops, computers galore, an educational milieu?  All the stuff that goes into a suburban childhood, with at least some access to capital, was on display on the part of the competing teams.

If a fine and properly aligned organization such as FIRST, running this competition for at least 21 years in Greater Boston, has yet to organize and advance students of color after all this time, we are living in a bad place as a society.  We all are certain that kids are kids, with the same innate skill sets across racial populations (indeed modern theory tells us there is only ONE racial population here on Earth).   When different groups, labelled as different racially, wind up at different end-points, we know there is a problem.

Time to retool approaches?  I am without insight here, but as a consumer of social reality I gotta tell ya– I left the High School yesterday elated for my son and depressed for my society.


Are You a Sub-Licensee of Technology?

Recent cases both in the law reports and in my practice have emphasized the risks run by sub-licensees when the prime licensee lose the prime license.  Let’s assume University licenses technology to A and A sub-licenses (properly under the prime license) to B.

Then let us say A is a bad licensee and doesn’t pay royalties.  Or A has financial troubles and ends up in a bankruptcy liquidation.  In the first case University cancels the prime license.  In the second case, the chapter 7 bankruptcy trustee most typically has no money to spend messing with preserving contract rights and, failing to adopt the prime license, that prime license terminates as a matter of law.

Unless the University has agreed in advance (at the time of the sub-license) to recognize B as holder of the license in the event that A drops out of the picture, B may well lose its sub-license even though B has paid every royalty dime and complied with every covenant in the sub-license (including those provisions which fully protect the IP of the University).

Recent case law and an analogous case in my practice have emphasized the importance to the sub-licensee of getting this protection up front, lest being held hostage to the first licensor which realizes that its financial ship came in with flags flying.

Disclosing Climate Change

The SEC requires reporting companies to report material risks and impacts of climate change on their businesses.  How are they doing?

Not so well, according the the Government Accountability Office report late last month.  The SEC does not get this information in an identifiable place within the disclosure regime, nor does all disclosure address similar factors, so that it is not easy to evaluate what disclosures are being made.  And it is wholly dependent on the subjective judgment of the companies as to what gets reported.

Climate disclosure shows up in descriptions of business, risk factors, MD&A and Legal Proceedings.  It may be considered in terms of physical risk or destruction, increased costs, interference of supply, loss of vital parts or components or agricultural products, loss of the entire subject of the business (growing grapefruits, for example), increased regulation and fines, long-term business trends, impact on customers or suppliers sensitive to environmental impact.

How important are such disclosures?  While many investors and investor groups cite increased focus on climate and the environment as important factors, the SEC’s own Advisory Committee reached no consensus and industry representatives said current disclosure standards are sufficient: a company knows when and if climate change presents a risk to its own business and if the risk is material, it must be disclosed.

It is not often that the increasingly complex web of SEC disclosure requirements is found wanting.  Since some senior SEC staff are in agreement with the GAO assessment, stay tuned for more disclosure regulation.  Will the tone in Washington hold off even more disclosure regs?  We shall see.


Killer Bees Return

Okay, another baseball post.  Spent five hours yesterday in 39 degree weather at Fenway Park for Red Sox opening day.  Freezing cold, with a brisk wind.  Looked like a football crowd, but Thursday was clear and bright, a break between the cold rain of Wednesday and today’s forecast of afternoon snow.

The Sox were losing 2-0 and in the bottom of the ninth but tied the game with hits by Betts, Benintendi and Bogaerts.  They won in the 14th with a hit from Bradley.  Sure there were other contributors (Ramirez was outstanding), and I have long been a critic of Bradley (how can you win the Series with a streaky .240 center fielder no matter how good his glove?), but the Four Bs are in fact the young core of the team for the future.  It is a pleasure to see them field and hit and run.

The Sox know how to put on a show and opening day was no different, with four fighter jets ripping across the sky at the end of the National Anthem, and with Big Papi (standing on the mound with Aly Raisman to yell “play ball”) ripping off his Sox jersey to reveal a shirt the read in big letters “Woman Power.”  How much fun is that!

Negatives: you need to be rich to see the Sox.  Parking in my lot is $45, in many places $60.  Beers $11 or more.  Clam chowder on a cold day, if you stand in line, is $8.75 (more in the stands) and not even a bag of Westminster soup crackers (watch them dump that soup into the cauldron from those pre-heated plastic bags; guess what it costs the concession stand to serve up a cupful [if it is one dollar including the container I would be shocked]).  Face price on a loge seat: $146 (I don’t know the price of a box seat as I only know millionaires and they cannot afford to sit there so I have no one to ask).

Hint to Sox management: don’t close all the food service places in the 8th inning, particularly when it is cold; an extra hour in April demands coffee, soup, hot chocolate, maybe chips or cookies.  People were leaving because between the cold and the lack of sustenance it just wasn’t such a great extra hour.

The inconvenient truth yesterday was not global warming but, rather, it’s late April arrival here in Boston.  But as the Manager pointed out to the press, playing baseball in cold weather is the team’s goal — it is chilly in October and November.

The Seven Percent Red Sox

The recent projection by ESPN’s newsletter service gives the Red Sox, the team with baseball’s highest payroll (and likely second highest seat price) only a 7% chance of winning the World Series.  (Yankees 9%; Astros and Indians 14% each, Dodgers 12%.)  And tied with the Nats for sixth place in overall team rating.  Why?

First, the analysis comes out of 100,000 simulated game combinations so there is no weight whatsoever placed on just how badly the Red Sox need to have this, given the number of key players in their contract years.  Nor how pumped are the Red Sox fans, suffering yet another ticket price increase in honor of failing last year. Imagine basing a projection on silly things like hitting and pitching skills, age, fatigue during season travels, and difficulty of schedule!

Second, the system does not seem to have any respect for Sox hitting, even with Ramirez and Holt healthy and Martinez in the batting order.  The Sox projected annual run difference (scored vs allowed) is only + 93, which when you consider what must be viewed as a pretty good Sox pitching staff means the computer doesn’t think the team is going to hit.  (Of the top seven teams, only the Sox are below +118 and four are at least 50% better.)

Final indignity: of the top seven teams, the Sox are given the lowest likelihood (66%) of even making the play-offs.  Which Red Sox fan receiving this post can relate to that projection, we of the Nation believing that once we wipe up the AL we will give the Dodgers the contest of their lives in the Series?  Indeed, of those seven teams, we are projected with the fewest wins, 92!  Wait a minute here– that is one win LESS than last year, which by all accounts was terrible, with Price off the reservation, Petey injured, Betts and Benintendi and Bogaerts hitting lousy, no Martinez, Wright injured, Holt injured, our Cy Young winner leading the majors in losses, and Backey Jadley Ruin-ya in center field being his .240 self.

Can’t wait for opening day this Thursday.  Hope the snow melts by then….

Digital Revolution: Do or Die

Digital data, its analysis and its use, is revolutionizing businesses of all types.  According to an expert panel convened today by the New England Chapter of National Association of Corporate Directors, either you digitize or die.

What is it?  It is the use of data to create competitive advantage by making internal operations efficient, by making sure you are producing the right kind of thing or service, and by removing the “friction” from the relationship between the company and its ultimate consumer/customer.  It is how you connect your operations internally.  It is how you figure out what the marketplace wants from you and tells you if you are in the wrong business or are not giving your buyer the optimal total service experience.  It is promptly applying newest technologies to your business strategy.  It is automating what you do.  It is protecting the security of your, and your customer’s, information.

Who is doing this? Apple Pay, Uber, Disney, Pinterest, Amazon.  Who has failed by not doing this?  Travel agents ceding market to on-line booking; box retailers; Blockbuster, Polaroid, Circuit City.  Data analysis needs to change two things to make your business survive: how you work inside to save cost and identify your deliverable, and how you present to your customers in a way that reduces friction by eliminating extra steps and to the greatest extent eliminates the entities that intermediate between company and customer.

What are the risks of implementation?  Abuse of data (current Facebook problems are only the most recent) may lead to curtailing use rather than protecting proper use (Congress wants to investigate, per today’s Boston Globe), lack of Board of Director understanding, fear of taking a short-term profits hit while you take the time to absorb the costs and failures of embracing the robust use of data.

Millennials may help us, says NACD’s Directorship Magazine.  They bring flexibility, embracing change, continuing training to bear.  They also bring necessary confusion, challenge of preconceptions, and changing work environments and hours and the “gig” economy;  all these things are part of redefining how work will be done in the future, something that boards of directors also must come to embrace.  Boards better make their matrix of needed skills and make sure the right mix of people is leading their business of the future.

Investment Clubs: The Next Madoff?

Different versions of Groucho Marx’ famous remark that he would not be a member of any club that would accept people such as himself, reprised by Woody Allen, came to mind when I read today the SEC’s quasi-absurd news release warning investors about the regulation of investment clubs.

The Commission, as guardian of free markets, warns that a club in some cases may be a mutual fund (too many members and it is open to people who are not active in making joint investment decisions), may be selling securities (if every member does not actively participate), and may have someone who needs to register as an investment adviser (if a member is paid to investigate investments).  Seems the anti-fraud provisions of securities laws also may apply.

I am not sure I want to be around a securities regulator that is spending time in warning my fellow citizens about investment clubs.  Every issue of the Wall Street Journal, every day’s press release from the SEC itself, covers major frauds, lies, the material abuse of investors both retail and professional.  I just don’t see the wildfire spread of dangerous investment clubs putting America at risk. In several decades of SEC legal advice to clients, I can remember exactly one inquiry about investment clubs; my response was along the lines of ” forget about it, our government has important matters to deal with.”

Speaking of Groucho Marx (sort of), I always loved his remarks about Wall Street (Groucho was almost destroyed in the crash of ’29): “I made a killing on Wall Street.  I shot my broker.  And not a moment too soon.  He was about to commit suicide.”

Maybe he should have joined an investment club.

Gender Pay Requirements/Massachusetts Law

Mirror Mirror on the wall, Who’s the fairest of them all?

Starting this July 1, virtually all Massachusetts employers regardless of size must provide gender-based equal pay for equal work (regardless of disparity of titles) for almost everyone: full-time, part-time, seasonal, per diem– it doesn’t matter.

But the law, as explained by recent Attorney General guidance, provides a complete defense against claims for any employer which conducts a good-faith and reasonable self -evaluation of its pay practices within three years prior to any claim.  The purpose must be to uncover and remedy any pay disparities.  Sounds simple, but remember that if you find but do not remedy inequality then you have documented your own liability, and the report also may end up in the hands of  lawyers for employees or government investigators.

The good faith of any self-evaluation is by definition subjective.  Perhaps one way to get over that issue is to have the job done by a recognized outside party.  Larger employers may find that cost to be well worth it.  Whether such a look in one’s mirror will result in better insurance rates for employment discrimination coverage is not clear to me — but it should. It is something to ask your insurance company.