SEC’s Challenge—Public Company Model Is Unattractive for Many Businesses

4 Min Read By: Yelena Barychev

IN BRIEF

  • The decline in the number of public companies in the United States is being recognized and discussed, but significant reforms that will help reinvigorate the U.S. IPO market will take time.
  • The Council of Institutional Investors and the U.S. Chamber of Commerce wrote letters to the Department of Treasury, although their proposed reforms take different approaches.
  • In addition, the SEC has put the issue at the forefront of its agenda.

Analysis of trends in U.S. capital markets reveals “an undeniable fact that the number of U.S. public companies has declined considerably from the peak of 20 years ago.” Ernst & Young LLP, Foreword, Looking Behind the Declining Number of Public Companies, an Analysis of Trends in US Capital Markets, May 2017 (E&Y Analysis). Listings of public companies in the United States “fell by roughly 50 percent . . . from 1996 through 2016.” Credit Suisse, The Incredible Shrinking Universe of Stocks, the Causes and Consequences of Fewer U.S. Equities, Mar. 22, 2017, at 1 (Credit Suisse Report). The reality is that more companies are choosing to stay private longer, and some public companies voluntarily “go dark” (i.e., deregister their stock from the Securities and Exchange Commission) or are acquired.

In his July 12, 2017 remarks at the Economic Club of New York, SEC Chairman Jay Clayton unequivocally stated that “the reduction in the number of U.S.-listed public companies is a serious issue for our markets and the country more generally,” and that “we need to increase the attractiveness of our public capital markets without adversely affecting the availability of capital from our private markets.”

In August 2017, the Council of Institutional Investors (CII) and the U.S. Chamber of Commerce, along with representatives of different segments of the U.S. economy, wrote letters to the Department of Treasury in connection with its upcoming report on regulations impacting the capital markets. See Council of Institutional Investors, Letter to the U.S. Department of Treasury on Capital Markets Report, (Aug. 23, 2017) (CII Letter); Joint Letter to Treasury Regarding the Decline in Public Companies (Aug. 22, 2017) (Joint Letter). (The Joint Letter was submitted by the U.S. Chamber of Commerce, as well as the Intercontinental Exchange; Nasdaq; Biotechnology Innovation Organization; Equity Dealers of America; Steven Bochner, Partner, Wilson Sonsini Goodrich & Rosati; Joseph D. Culley, Jr., Janney Montgomery Scott LLC; Kate Mitchell, Co-Founder and Partner, Scale Venture Partners; Jeffrey M. Solomon, President, Cowen Inc.; and Joel H. Trotter, Partner, Latham & Watkins.) Both the CII Letter and the Joint Letter identify the problem of shrinking public company markets but approach it differently.

CII, as the voice of institutional shareholders, including employee benefit plans, foundations, and endowments, believes that the SEC must “improve the delivery and access of the information required to be provided to investors,” but should not significantly alter “the total mix of information provided to investors.” The Joint Letter, representing views of businesses, expresses concern that “the decline in U.S. public companies inhibits economic growth, job creation, and the ability of households to create sustainable wealth” and suggests the following reforms to help reinvigorate the U.S. IPO market:

  • extend the “on-ramp” accommodations of the JOBS Act from five years to ten years for all emerging growth companies (EGCs), and revise the EGC definition to eliminate the premature phase-out of those accommodations;
  • make the JOBS Act on-ramp available for all companies seeking an IPO for five years, regardless of whether they meet the definition of an EGC;
  • modernize the regulatory regime for internal control reporting requirements under the Sarbanes-Oxley Act;
  • modernize the disclosure regime administered by the SEC, including elimination of outdated or duplicative disclosures, repeal of immaterial social and politically motivated disclosure mandates, as well as further scaled disclosure requirements for EGCs;
  • reform the outdated rules governing shareholder proposals under Rule 14a-8, including modernizing the thresholds for shareholder proposal resubmissions by increasing the shareholder support thresholds;
  • enhance regulatory oversight of the proxy advisory firm industry;
  • promote an equity market structure that enhances liquidity for EGCs and other small capitalization companies; and
  • incentivize both pre-IPO and post-IPO research of companies.

In his speech, Chairman Clayton praised the U.S. public company disclosure and trading system as “an incredibly powerful, efficient, and reliable means of making investment opportunities available to the general public,” but he also acknowledged that the SEC, lawmakers, and other regulators “have slowly but significantly expanded the scope of required disclosures beyond the core concept of materiality.”

The SEC’s Regulatory Flexibility Agenda (see 82 Fed. Reg. 163 (Aug. 24, 2017)) published for public comment, delays (arguably indefinitely) the adoption of rules that many companies view as burdensome and pushes forward rules that are designed to lead to a more balanced disclosure regime. For example, the proposed agenda places the adoption of final rules implementing the following Dodd-Frank mandates on hold, with the timetable for the SEC action identified as “to be determined”:

  • disclosure of hedging by employees, officers, and directors;
  • clawback of erroneously awarded compensation; and
  • pay-versus-performance disclosure.

The adoption of the following final rules, among certain other actions, is targeted for April 2018:

  • amendments to the definition of a “smaller reporting company” to expand the number of registrants that qualify as smaller reporting companies in order to promote capital formation and reduce compliance costs for smaller registrants; and
  • updates to certain disclosure requirements in Regulations S–X and S–K that may have become redundant, duplicative, overlapping, outdated, or superseded.

The adoption of these rules, albeit important, is unlikely to be a game-changer in a company’s decision whether to go public. The implementation of significant reforms that will spur public company activity may involve a lengthy SEC rulemaking process and will not happen overnight; however, it is important that the issue of declining interest in becoming a U.S. public company is recognized, discussed, and put at the forefront of the SEC agenda.

ABOUT THE AUTHOR

Philadelphia, PA

Yelena Barychev

Yelena Barychev advises management on:

  • public and private offerings of debt and equity securities, including IPOs, Regulation A, and Rule 144A offerings
  • tender offers
  • preparation…

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