Bible, Bob Dylan and Massachusetts Supreme Judicial Court

The wicked flee when no man pursueth: but the righteous are bold as a lion. — Proverbs 28:1

In the 2016 Massachusetts SJC decision of Commonwealth v Warren, the Court declared that running away from the police, without additional indications of wrongdoing, was not an admission of guilt.  In that case, a man’s conviction for a weapons violation was overturned because when initially stopped by a uniformed police officer, the defendant simply ran away.  While running together with other clues might constitute a righteous stop, the defendant had done nothing but soundlessly taken off across a nearby park.

Putting aside that most of us would not act that way either because of respect for the police function or fear of getting shot in the leg, it is interesting to note that the law is clear that, upon being approached by the police, you can remain totally silent and just walk away.  It is up to the policeman to then apprehend you, but the police must have “reasonable suspicion.”  If you have a color TV with wires hanging out tucked under your arm, you are going to be intercepted but, if you are just out for a stroll, any stop of your progress, by itself, is improper and any evidence found on your person (gun, stolen property) will not reverse the impropriety of the police action.

While the holding did not turn on the race of the defendant, the Court went out of its way to note that, in the case of black males in Boston who are stopped, questioned and arrested in greater proportion than non-minorities, the fact that such a person of color might just choose to exercise his Constitutional right to run away is quite understandable.

This case reminds me of a lyric from my favorite Bob Dylan song, Brownsville Girl:

I was crossing the street when shots rang out, I didn’t know whether to duck or to run, so I ran….

Note: credit for a great analysis of this case by Peter T. Elikann in the current issue of Massachusetts Law Review, and for the quote from Proverbs, a source I confess that I seldom reference.

Millennials and Boomers

Will the twains ever meet in the board-room?  Sort of.

Recent statistics cited by the Korn Ferry placement firm looked at boards of the S&P companies.  Only twenty directors were in their thirties while a whopping 2,488 were in their 60s. In fact, there were 49 times as many directors in their 70s and 80s as there were millennial directors.

Several points:  First, smaller companies, particularly those not public, likely have different demographics, by reason of inclusion of family members and younger key operations people sitting on the board.  Second, of course time will cure this disparity by flipping it on its ear.  Third, many emerging companies are founded by millennials, who may blend in some grey hairs but do sit on their own boards.

What interests me is that one theory of board building (one of the best ones) is to add directors who cover gaps in crucial board skills.  Without suggesting that us older folks do not learn new tricks, I have seen seeming growing interest in boards adding younger members adept at cyber issues (uses and risks), blockchain, marijuana, mobile apps, changing consumer tastes — the new economy.  I would have suspected greater millennial representation on S&P boards.  Of course, companies large enough to make the S&P also are large enough to acquire requisite skills from staff hired below the board level, but that approach denies the board the direct guidance of millennial thinking in setting company strategy (the key board function, which would not be supported robustly by non-board staff).

On a different aspect, Korn Ferry statistics about the world-wide occurrence of millennials and boomers casts some focus on the oft-stated US plaint that we are inundated with too many boomers:  while the US ranks third (behind China and India) with the absolute number of boomers, we are not even in the top five worldwide (UN 2015 stats) by percentage; each of Japan, Bulgaria, Malta, Finland and Hungary top that list with 25-26%.

Are we awash in millennials, then?  Seems not, perhaps reflective in part of our birth rate in the US.  We do not make the top five list in either absolute number of millennials (of course we are blown away by China and India, but are also behind Indonesia, Brazil and Pakistan), nor with the highest percentage in the general population (stunningly at first blush, the top five are all Arab / Arab Gulf countries).

Then we get to Generation Z….

I’ve Been Thinking

 

Why does most of my spam received on my blog come to me in Russian or Chinese?

If sharks can bite a man standing on a sand bar, as happened  in Truro on Cape Cod, why did they keep the beaches open?

If the Beachcomber Bar in Wellfleet loses its parking lot under 5” of rain, what happens when the next hurricane arrives?

Why are coffee beans more expensive per pound than prime steak?

How can a plurality of any group of Americans believe that the government should have the power to close news outlets for “bad behavior” and 23% believe that the administration should close down CNN, the Washington Post and the New York Times?  [Report by Daily Beast of Republican opinion poll]

With Brexit, Poland, Greece and Italy creating major problems, and Merkel under pressure, is the EU in danger of simply imploding in the near term?  [Non-hint: the other day a senior German lawyer from a large firm answered this question by telling me he did not know.]

With major sources documenting world-wide increase in burning forests as being caused by climate change, why do we permit construction deep in vulnerable forests? [recent issues: NY Times, Economist, Harpers]

And provide emergency financial assistance when they repeatedly burn?

If scientists now believe that ordinary matter makes up only 5% of the universe and perhaps another 25% is made up of recently discovered dark matter, what is the form of mass/energy making up the other 70% of everything?  Darker Matter?

If tariffs on Chinese goods are thought to be so effective, and if economic growth is fading in China and the government is managing a major credit crisis in the peer loan space, and if mega-cities have been overbuilt and some remain only sparsely populated, why is the Chinese economy projected to grow by 6.9% per year?

If you can multiply a number by zero, why do mathematicians tell us we cannot divide a number by 0?

And why is not 0 divided by 0 = 0?  Or, = 1?

Why does my wine merchant keep sending me write-up of wines that taste like fresh-cured leather or the forest floor?  I haven’t eaten either of those things in several years….

Why do I feel like the Red Sox (who won a ballgame last night in the bottom of the ninth inning only because the totally inept Miami team committed a throwing error) may echo the 1951 Brooklyn Dodgers, who blew their 13 1/2 game lead and went on to surrender their place in the World Series to the Giants on Bobby Thompson’s playoff game home run?

 

 

Broker-Dealer Auditing Failures

The PCAOB is the board supervising accounting services to public entities.  Its 2017 report on the quality of audits of 75 BDs is troubling.

I must add that it is not clear that any of the errors noted caused any material misstatements, and that much criticism about over-regulation continues to be leveled at the regulatory framework applied to US public companies.  However and with that overlay of caution, note:

8% of auditors even failed the initial test of their independence.  Some had performed non-audit work for the BD which they now were to audit; interestingly, one auditor was disqualified because its engagement letter indemnified the auditor from liability if management knowingly misrepresented (a seemingly logical protection but the idea is that the auditor is supposed to be able to uncover that misrepresentation).

66% of audits failed properly to report revenue.  64% did not fully assess risk of misstatement due to fraud.  32% failed fully to report related party transactions.  59% failed properly to review the quality of their performance of the audit engagement.

Facially, one might conclude that BD audits are just plain unreliable, an unsettling thought about the industry that controls the care and investment of much of my, and I suspect your, personal wealth.  The PCAOB report does not necessarily mean that material error occurred, a helpful observation.  The report does suggest that material error has some palpable chance of occurring, a less sanguine thought.  The true import of this report (it is highlighted today in the leading securities lawyer blogsite “Jim Hamilton’s World of Securities Regulation”) is just obscure.

But food for thought: auditors who audit both reporting companies and broker dealers performed better than auditors who only worked on BDs.  Seems a broader world view may be better than a deep dive into only the BD universe.

 

Apologies

You may have noted a flurry of posts in the last several days as I cleared my desk of interesting new matters that accumulated during the last few weeks, which I spent with family down on the Cape.  Now that I am back at the office and catching up on new developments, and as we end the summer vacation and as both students and business people prepare to return to the fast pace of the “school year,”  I do plan to continue a more regular pace of communication.

I hope all of you are enjoying a wonderful summer full of sun, travel and — well, respite from lawyers posting on their blog-sites.

Regards to all.

Independent Directors: Not Useful?

Much of the US corporate governance scheme relies on the sagacity of independent directors, directors not beholden to management or major ownership’s interests and thus able to guide the company fairly on behalf of all shareholders.  Certainly for larger and public companies generally,  the need for independent directors is not only a mantra but also the law: public companies must have independent directors making up the comp and audit committees and a majority of independents overall; and under Delaware law, a vote of independent directors removes the stigma of self interest from many kinds of transactions wherein management and interested directors are dealing with the company and risk exists of unfairness to the minority.

Then you look at the defining corporate governance failure of our generation, the 2008 meltdown, and you see that independent boards were involved in some of the most spectacular failures of the era.  How can that be?

Recent research, building on seminal studies by Professor Jay Lorch at HBS, suggests that the failure was not the lack of independence in fact, but the lack of domain experience, that rendered independence irrelevant.

The board of Lehman Brothers, the bank which failed and triggered the collapse of financial markets, is a case in point.  The board was made up of smart accomplished independents, including ex-CEOs of IBM, SmithGlaxoKline, Haliburton, Telemundo and Sotheby’s.  But contemporary records confirm that none of them had domain experience in the financial markets in which Lehman played, let alone the sub-prime mortgage market.

The question arises, in a world of complex business, how DO you get directors who are independent of a company, not tied to a competitor, deeply knowledgeable in your business verticals (of which there may be several that are material), and not over the hill?  One suggestions is to get directors from industries that are at least analogous in terms of scale and business issues and target markets, if not spot on.

Another suggestion is to train directors to know what they need to know.  That would take a seismic shift in practice.  First, directors may be quite busy with their own companies or, alternately if retired, sitting on several boards.  Second, these senior people are not used to going to school, even if dedicated to doing a credible job as director.  Third, midst criticism of the high comp for public directors, one reply is that being a public director takes a huge amount of time if done correctly, and thus how do you increase the director work-load without increasing the compensation paid to the directors.

Every company and directorship experience is different.  Wise directors can find people inside or outside their companies upon whom to rely for risk-reward analysis.  But with directors of major corporations making hundreds of strategic decisions every month with potentially huge impact on companies or sectors or the whole economy, it doesn’t take more than a few failures of judgment  before you have the mini-depression of 2007-10 all over again.

FCPA: Business as Usual = Federal Corruption

The Boston office of the SEC has just settled charges leveled at Credit Suisse under the US Foreign Corrupt Practices Act by requiring profit disgorgement and interest in the amount of approximately $29 Million.  Tack on another $47 Million to the Department of Justice as a criminal penalty.

The offenses were not of the tawdry, bribery-style variety.  Rather, managers in the Asia-Pacific hired and promoted relatives of government officials, outside of the firm’s normal hiring processes.  Over seven years, over 100 relatives of government officials benefited.

Likely it makes sense to concede the link between the hires and the generation of overseas business.  Credit Suisse did settle and accept the criminal penalty  And although Credit Suisse is of course a Swiss entity (formed in Zurich in 1856), it conducts substantial business in the US and is subject to US law even with respect to its overseas operations.

While instinctively these FCPA decisions resonate on an ethical level, and certainly level the playing field when competitors seek business in countries where small amounts of grease go a long way and comport with historical lack of fiduciary standards, it is curious that the history of mankind is replete with major “business deals” that were applauded when effected by family “hiring.”  How many tribal disputes were resolved by marriage of children?  How many modern European countries were shaped and founded on the intermarriage of the heirs of monarchs?  And how many similar commercial arrangements, today, slip under the fiduciary radar in domestic US business?

I believe the driver for FCPA was to prevent one US business from bribing its way into winning business in overseas markets, over a competitor, by giving customary foreign bribes.  That gave rise to the problem that all US businesses, denied the bribe, were placed at a disadvantage against competitor not based in the US.  This in turn, as part of globalization, drove the US to spearhead efforts to cause all commercial players, whether located in countries of bribers or in emerging countries of bribe-ees, to adopt uniform rules for a level playing field.  Success in this latter undertaking has been, to my observation, somewhat successful but by no means universal as a matter of law, and perhaps less successful as a matter of practice.

As international business (hopefully) continues to grow, one should anticipate a congruent growth of the law of fair competition.  Punctuated with the usual percentage of cheaters.  We shall see….

Massachusetts Noncomp Law Explained

My recent post flagged adoption of the new Mass law regulating noncomps by statute for the first time in the State, basically limiting noncomps to one year and requiring some payment during the restricted period.  Some important details to note:

*You cannot restrict non-exempt employees or interns at all.  This is for senior people only.

*If someone breaches a noncomp, the period can be extended to two years.

*There are mechanical steps and timing to get a valid noncomp from a new hire, including 10 day advance notice and flagging the right for the employee to have counsel.

*If an employer approaches a current employee for a noncomp, there must be a benefit to the employee, typically a raise or other “fair and reasonable consideration”; unlike some other states, notably NY, mere continued employment is not enough.  There is no definition of what kinds of benefit must be offered, and I smell litigation on the horizon.

*In a sale of a business where an employee gets a big payday, due to equity ownership or otherwise, a broader noncomp can be enforced provided the employee receives “significant consideration or benefit”– I smell further litigation on the horizon defining what is “significant.”

*Restrictions must be reasonable geographically and cover the specific services provided during the last two years (unless you can make a compelling argument for other services).

*If you fire an employee without cause or lay him/her off, your noncomp will not be enforced.

*The law covers people employed here and Mass residents employed elsewhere.

*Caveat: at the same time, Mass is enacting the Uniform Trade Secrets Act, which in some States has been interpreted as allowing the enjoining of competition, even without an agreement (!), if new employment would result in “inevitable disclosure” of trade secrets to a competitor, reports the Boston Business Journal (quoting an attorney in my firm, btw). Mass has never in the past entertained the “inevitable disclosure”doctrine under prior law, but then again they never had this new law on the books.  So stay tuned.

TESLA

Big news Tuesday was Musk announcing he might take Company private and had the financing lined up.  Not surprisingly, the market price of the stock rose towards his stated tender price of $420 per share.

Equally not surprising, on Wednesday the SEC queried the Company for the basis of these remarks.   Seemingly the Board had been alerted.  Is there basis for Musk saying he had the money?  It is $72 Billion.

This move will occasion substantial scrutiny from another source, as the bump in Tesla stock price puts the Company over the conversion price of almost a Billion dollars of convertible bonds that mature next March, with a conversion price of about $360 per share.  If the stock price stays above that number, the bonds convert without the Company needing to fund the shortfall between market price and strike price in a cash distribution.

Wire services and the WSJ are all over this so stay tuned to your own media sources, but if Musk jumped the gun on whether funds are secured there is going to be heck to pay….

New Mass Law Restricts Noncomp Agreements

The Governor last week signed the long-awaited Massachusetts statute that deeply cuts back the enforceability of non-comp agreements for employees. The Act applies to all agreements made on or after October  1.   A detailed analysis will follow, but note that now:

*Maximum time is one year.

*To enforce the agreement, an employer must pay at least half base pay for the term of the restriction, unless employee breached a duty to employer (so called “garden leave” provisions).

*No noncomp will be enforced against employees let go without cause.  (This will put pressure on contractual definitions of “cause”).

*Employers can still prevent poaching of employees or pitching employer customers.

*Noncomps made in connection with the sale of a business will still be enforced.

Not quite California, where most noncomps are void, period; but a radical change in Mass business law.