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8004 PRM Certification - IV: Case Studies - Standards: Governance Best Prac

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8004 exam Dumps Source : PRM Certification - IV: Case Studies - Standards: Governance Best Prac

Test Code : 8004
Test appellation : PRM Certification - IV: Case Studies - Standards: Governance Best Prac
Vendor appellation : Avaya
exam questions : 110 real Questions

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Avaya PRM Certification - IV:

Avaya allows for Channel partners to convey imaginative real-Time Collaboration solutions and Evolve companies | real Questions and Pass4sure dumps

source: Avaya Inc.

Avaya Inc.

October 20, 2010 07:15 ET

Avaya combine Channel companions beget access to unusual talents and Designations in Video and information, associate Helpdesk and business management and marketing Curricula

BASKING RIDGE, NJ--(Marketwire - October 20, 2010) - Avaya, a worldwide leader in enterprise communications systems, utility and services, today introduced unusual expertise, certifications and assist techniques to advocate Avaya combine Channel companions provide imaginitive, real-time enterprise communications and collaboration solutions to their purchasers. Avaya connect Channel partners may beget access to unusual technology certifications, company management and advertising curricula and a world associate HelpDesk to assist evolve both their consumer's business as well as their own. The announcement became made during the Avaya 2011 Americas companion conference being held this week in Las Vegas, Nevada.

"The innovations Avaya is now bringing to market allow their Avaya combine Channel companions to trade the dialog," observed Jeremy Butt, vice chairman, worldwide Channels, Avaya. "Our partners can beget a strategic beget an repercussion on assisting agencies reinvigorate their company through the use of open, specifications-primarily based true-time communications and collaboration applications. Avaya is equipping channel companions with the technology, competencies, certifications and succor to allow their success in this trade."

The announcement follows a sequence of expertise innovations introduced through Avaya through 2010 that protected advancements in unified communications and collaboration, contact core and records networking for groups from wee to very significant. Most these days, Avaya introduced a brand unusual portfolio of video-enabled collaboration options highlighted by means of the Avaya Flare™ adventure, the industry's first subsequent-technology consumer adventure that delivers unique collaboration capabilities across video, voice and text.

the unusual and elevated technology practicing, designations and talents replicate Avaya's elevated portfolio into facts and Video solutions and encompass:

  • Video or information Authorizations -- unusual and up to date guidelines each protect and mirror an Avaya combine Channel associate's commitment to globally consistent nice necessities in video or facts solutions.
  • Video or facts professional -- identifies an Avaya connect Channel associate that has verified the highest degree of capacity in earnings and assist of video or data, and gives access to Avaya's business-main equipment and help.
  • Avaya certified options Architect (ASCA) in Unified Communications solutions or Contact core solutions -- new certification possibility indicates someone employee has finished the highest degree of coaching and competency in unified communications or contact heart options and helps channel partners build deeper tiers of specialization.
  • Avaya connect Video solutions certification -- for individual employees as an not obligatory respond set training that can also be introduced onto Unified Communications credentials.
  • "companies with clear and robust certification programs permit companions to foster comprehensive skill-sets and build and develop their company," states Chris Ilg, director, Infrastructure Channels and Alliances, IDC. "As businesses search for imaginitive collaboration options to fuel innovation in their company, companions with the latest capabilities are highest character located to meet the wants of valued clientele nowadays."

    The currently launched Avaya combine accomplice HelpDesk provides a unique aspect of contact for channel partners who've questions about Avaya's colleague classes, equipment and functions. purchasable in 10 languages, this unusual aid offers really global tips to channel partners to Make it less difficult for partners to conclude company with Avaya, in spite of their degree, geography, or portfolio bought. agents will succor with here program and technique related issues:

  • Channel courses -- Avaya join companion program on-boarding classes, practicing & certification, earnings authorization, and so on.
  • elementary purposes & tools -- associate Relationship administration (PRM) database, company progress and Market construction money, channel colleague web registration, Avaya college Portal.
  • marketing classes -- partner marketing apposite resources and belongings, Avaya Market Leaders application, channel companion promotions and incentives, companion locator, and so forth.
  • Channel features classes -- SSO & internet capabilities, Avaya global services tools, product registration, and channel companion service assessments.
  • Avaya is offering access to courses leading to knowledgeable Diploma in advertising and marketing company services and options offered with the aid of ITSMA and the Chartered Institute of advertising to aid channel partners build enterprise competencies. The curriculum will assist channel companions remember what they deserve to conclude inside their own business to create and bring company functions and options and how to win, develop and shield key customer debts.

    the unusual training and certifications should breathe purchasable over the next two quarters. The Avaya connect colleague HelpDesk is purchasable now.

    About Avaya Avaya is a worldwide chief in business communications programs. The company offers unified communications, contact centers, statistics options, and related services directly and thru its channel partners to main agencies and organizations every over. organisations of every sizes depend upon Avaya for state-of-the-artwork communications that enrich effectivity, collaboration, customer carrier and competitiveness. For more tips gratify visit

    certain statements contained in this press release are forward-looking statements. These statements may well breathe identified by route of forward-searching terminology equivalent to "assume," "consider," "continue," "may," "estimate," "predict," "intend," "might also," "might," "plan," "expertise," "predict," "may still" or "will" or other identical terminology. they beget based mostly these ahead-searching statements on their latest expectations, assumptions, estimates and projections. whereas they deem these expectations, assumptions, estimates and projections are comparatively cheap, such forward-searching statements are best predictions and involve favorite and unknown hazards and uncertainties, lots of which might breathe past their handle. These and different vital components may intuition their exact results, efficiency or achievements to vary materially from any future results, efficiency or achievements expressed or implied by these ahead-searching statements. one of the key components that may trigger actual consequences to vary from their expectations encompass: their skill to strengthen and sell superior communications items and capabilities, together with unified communications, contact heart and information options; their capacity to foster their circuitous sales channel; pecuniary conditions and the willingness of firms to Make capital investments; the market for advanced communications products and capabilities, including unified communications solutions; their skill to continue to breathe aggressive within the markets they serve; their skill to manage their provide chain and logistics capabilities; the skill to give protection to their intellectual property and evade claims of infringement; their capacity to without problems integrate acquired companies into ours; their means to maintain adequate safety over their suggestions techniques; environmental, health and safeguard laws, regulations, fees and different liabilities; the capacity to maintain and appeal to key employees; hazards regarding the transaction of company internationally; pension and post-retirement healthcare and life coverage liabilities; and liquidity and their access to capital markets. They warning you that the foregoing record of vital elements may also no longer accommodate every the fabric elements which are essential to you. For an additional list and description of such dangers and uncertainties, gratify argue with Avaya's filings with the SEC that are available at Avaya disclaims any aim or obligation to supersede or revise any forward-searching statements, no matter if on account of unusual information, future activities or in any other case.

    Channeltivity Releases Channel accomplice training and Certification Module | real Questions and Pass4sure dumps

    CHARLOTTE, N.C., Oct. 26, 2017 /PRNewswire/ -- Channeltivity these days introduced the Channel companion working towards and Certification module to their cloud-based companion Relationship administration (PRM) answer. This unusual module became designed to carry the wealthy functionality of a learning management equipment, tailored to the entertaining wants of channel courses, arrogate from their plenary carrier colleague management hub. 

    by means of seamlessly integrating training and Certification functionality into their PRM answer, Channeltivity is enabling channel managers to more without problems partake practicing materials with their companions and verify their companions' skills, privilege from their associate portals.

    The newly released working towards and Certification module contains:

  • handy to use, supple direction setup in a well-known interface that can involve video clips, wealthy textual content, photographs, and downloads.
  • Certifications at both the rep and accomplice degree, with centered access.
  • delivery of growth and results on a partner's profile for convenient reference and encouragement. comprehensive reporting on working towards pastime to provide channel managers and companions plenary visibility into development.
  • limitless colleague access and trying out with the low monthly pricing.
  • "The training and certification of companion handicap is a vital piece of channel courses. With their unusual module we're enabling their valued clientele to manipulate each point of their colleague program from one answer," talked about Jason Jacobs, CEO of Channeltivity. "Our customers handicap from accelerated associate tryst when leveraging their all-in-one channel administration solution, finally accelerating channel program increase."

    the unusual performance builds upon the business's leading companion Relationship management solution designed for the excessive-tech and IT industries. Channeltivity empowers channel professionals with streamlined colleague actuality cycle administration and earnings execution methods. moreover the brand unusual practising and Certification module, the PRM respond presents colleague Portal content administration, Lead Distribution, Deal Registration, MDF management and a distinguished deal extra. 

    About ChanneltivityChanneltivity is a associate relationship management utility platform that helps corporations construct powerful relationships, optimize colleague productiveness and succor unusual revenue. Channeltivity is convenient to Make use of, is speedy to install, and connects to

    To learn why 30,000+ channel earnings experts worldwide depend upon us, and to event the respond via their fingers-on demo, contact Channeltivity at 877-226-2564 or

    Contact:Dana CitronVP, MarketingChanneltivitydcitron@channeltivity.com877-226-2564

    View common content:

    source Channeltivity

    Copyright (C) 2017 PR Newswire. every rights reserved

    PRM gold gauge practice: associate conversation IV | real Questions and Pass4sure dumps

    so far, we’ve spoke of defining your goal, selection and segmentation of receivers, medium and message. during this the closing a piece of this subject, we’ll focus on repetition and frequency.


    should you bring convoke to motion, then you definately beget to also beget in intellect a preferred response both in terms of:

  • motion – What conclude you want the receiver to do:
  • Medium – How conclude you want them to respond?
  • by implication, when you are going to converse and any conversation ought to beget a convoke to motion you then must arrangement for the response and believe the route you will:

  • receive it
  • computer screen it
  • record upon it
  • Act upon it
  • In follow, this capability content creation within your portal. It means making certain that the information or functionality exists within your portal to readily fulfill the appellation to motion, to act upon it and to entrap the interplay resulting from it.

    Repetition and Frequency

    whether you route out weekly updates, monthly newsletters or quarterly bulletins, reliance carefully how often your companions are looking to hear from you. it is captious that you simply deem how many carriers are contacting them each day and how a variety of communications they're likely to salvage hold of and exigency to salvage hold of. accept as true with conducting analysis amongst your colleague neighborhood earlier than identifying for your self. The results may additionally vary considerably! They suppose that speaking extra that as soon as per week is unhealthy because it increases the probability greatly of your messages being:

  • omitted
  • read selectively
  • classified as “junk mail” and under no circumstances examine once more
  • speak sparingly and ensure that what you exigency to converse is worth maxim and fascinating to your audience. despite the fact, in case you challenge a crucial message to your channel partners, it is value repeating it selectively to those that failed to reply to your convoke to motion the first time. This “2d chew of the cherry” can frequently bear greater outcomes than your first on condition that you exchange the tone of the message to accommodate a more personal, attractive or even pleading tone. subsequent week we’ll beginning a collection of posts on accomplice carrier and guide, primarily accomplice portals and cellular options.

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    Separating fact from fiction in 21 claims about charter schools | real questions and Pass4sure dumps

    (Update: notice endnote*)

    The National Alliance for Public Charter Schools  released a report ultimate year titled “Separating Fact & Fiction: What You exigency to Know About Charter Schools,” which takes 21 statements that it calls “myths” about charters and attempts to debunk them, one by one. Now three education researchers beget completed a fact-checking analysis of the charter report, coming to some incompatibility conclusions about each myth.  Following is piece of the unusual analysis, which was published by the National Education Policy heart at the University of Colorado Boulder, and which you can find in full, complete with extensive footnotes on the NEPC website. (I beget removed the footnotes and endnotes from the text in this post but you can notice them, as well other parts of the report, here.)

    This analysis was written by Gary Miron, William J. Mathis and Kevin G. Welner. Miron is a professor of evaluation, measurement, and research at Western Michigan University. Mathis is the managing director of the NEPC and a former Vermont superintendent. Welner is the director of the NEPC as well as an attorney and a UC Boulder professor of education policy.

    Here are the first two parts of the seven-part fact-checking analysis of the National Alliance for Public Charter Schools report:

    By Gary Miron, William J. Mathis and Kevin G. Welner


    Separating Fact & Fiction: What You exigency to Know about Charter Schools is a concise policy document assembled by the National Alliance for Public Charter Schools (NAPCS).  No authors or contributors are identified. The paper (we use the term “report” throughout this review) lists 21 common “myths” about charter schools, which it then summarily rejects.

    There exists an extensive corpse of research around charter schools, including a distinguished deal of scholarly labor published in peer-reviewed journals. The NAPCS report attempts to advocate its claims in response to the 21 “myths” with a narrative that includes 47 endnote references. But a closer inspect at these endnotes reveals that 15 of the citations came from NAPCS (the group that prepared the report), and another eight are from two reports produced by the school-choice department at the University of Arkansas, which beget been strongly critiqued for advocacy-driven problems.

    Because the report relies almost exclusively on other advocacy documents, does not give a balanced or thorough examination of any of the “myths,” and does not provide more than shallow research evidence to advocate its position that the myths are indeed false, this review will use the more neutral and factual term “criticism” instead of “myth.” The 13-page report is written for a lay audience and is beautifully laid out with colorful text and photographs of children. The criticisms are organized across four common areas: (i) charter school resources, (ii) students served, (iii) performance, and (iv) accountability and impact.

    II. Findings and Conclusions of the Report

     Although the NAPCS report claims to “set the record straight on the veracity about charter “schools,” its main purpose appears to breathe the repetition or “spinning” of claims voiced by advocacy groups and believe tanks that promote privatization and school choice. Given the extensive research literature related to charter schools, it is surprising that the NAPCS report relies on such a wee and selective set of sources. This review examines the claims made in the NAPCS report and summarizes the empirical evidence related to every 21 criticisms.

    The format for the following is to list the criticism, quote the NAPCS claim, and provide a short commentary based on the research literature.


    Criticism: “Charter schools are not public schools.”

    NAPCS Claim: “As defined in federal and status law, charter schools are public schools.”

    It is true that federal and many status laws define charter schools as public schools. Further, charter schools are funded primarily with public funds. But the actual legal status, in any meaningful policy discussion, is much less clear. A recent law review article, helpfully titled “The Legal Status of Charter Schools in status Statutory Law,” is available to the public online2 and walks the reader through this nuanced landscape. The authors conclude, “While charter schools are generally characterized as ‘public schools,’ courts beget had a difficult time determining their legal status because charter schools accommodate both public and private characteristics.”

    To understand the extent to which charter schools are de facto either public or private, it is necessary to examine various aspects and components of the schools, such as ownership, public accountability, governance, management, employee status, and the extent to which the schools are open to every and are pursuing democratically and publicly established objectives.

    *Most charter schools are governed by nonprofit boards. It is increasingly the case that charter school buildings are privately owned by the charter’s founders, by an affiliated private company, or by a private trust.

    *In schools operated by private education management organizations (EMOs), the materials, furniture, and equipment in the schools are usually privately owned by the EMO and leased to the school.

    *Except for a wee number of states that require teachers to breathe employees of the charter school, it is common for teachers to breathe “private employees” of the EMO.

    *Although most charter schools beget appointed nonprofit boards intended to depict the public (i.e., taxpayers’) interest, a growing portion of charter schools are operated by private EMOs, and key decisions are made at corporate headquarters, which are often out-of-state.

    *Public schools, like other public entities, are subject to transparency laws. Charter schools and their private operators increasingly spurn to partake information and data in response to public requests. This issue is explored further later in this review. In 2011-12, 42% of the nation’s public charter school students were enrolled in privately operated charter schools. Based on trends in the growth of EMOs, it is estimated that by 2015-16, more than half of the nation’s charter school students will breathe enrolled in schools owned and operated by private EMOs.

    Thus, while claiming to breathe “public,” and while having some elements that are public (most importantly, public funding for a no-tuition education), their operations are basically private.

    Criticism: “Charter schools salvage more money than other public schools.”

    NAPCS Claim: “On average, charter schools receive less public funding than traditional public schools.”

    When comparing public funding of charter schools with that of district schools, it is captious that the portion of “pass-through” funds to charter schools from school districts breathe subtracted. Otherwise, the district revenues are erroneously and vastly inflated. For instance, if a public school district has the responsibility of providing transportation of charter school students, then the taxpayer funding for that transportation should breathe attributed to the charter schools, not the public school district. But sloppy calculations conclude not conclude this.

    Further, it is necessary to account for private dollars devoted to charter schools that are not publicly reported. This private funding is almost non-existent for some charter schools, but it is very large for others. A study of KIPP create that KIPP schools were actually receiving $800 more per pupil in public sources of revenue than local school districts. Further, while KIPP schools reported no private revenues in the federal district finance data set, a review of IRS 990 tax forms revealed that KIPP schools were receiving an middling of $5,700 per pupil in private sources of revenue in 2008.

    Nevertheless, there is indeed a widespread research consensus that charter schools receive less public funding per pupil than surrounding district schools. This is largely explained by charter schools spending less on special education, student advocate services, transportation, and food services.

    Charter schools can receive a lot more public resources if they wish. Yet, they can only receive additional (categorical) funding if—for example—they serve more children with temper or ascetic disabilities and if they start offering programs such as vocational technical programs that would qualify them for targeted funding. Most status funding formulas search to provide equitable funding for charter schools and district schools alike. What a given person sees as impartial probably depends on which sector one works in or otherwise identifies with.

    Criticism: “Charter schools receive a disproportionate amount of private funds.”

    NAPCS Claim: “Charter schools receive fewer private funds per pupil than traditional public schools.”

    NAPCS provides no cogent advocate for its claim. Nor conclude they know of any solid study upon which to Make this comparison nationally. What they conclude know is that the variation within both sectors—charter and traditional public—is great, acceptation that privately provided resources likely drive inequities in every these schools. The NAPCS report attributes this finding to a study conducted by researchers at the University of Arkansas’s “Department of Education Reform.” However, this report was about an issue completely different from private funding disparities: the title that charter schools operate with fewer funds in total. The fatal flaw in the study was—as famed above—in erroneously classifying pass-through money to charters as public school expenditures.12 To Make matters worse, the Walton report considers “other” funding to breathe the very as private philanthropy. Increasingly, charter schools set up private trusts that receive and disburse private revenue on behalf of the charter school. This “off the books” revenue is not reported.


    Criticism: “There is a want of transparency around charter schools’ use of funds.”

    NAPCS Claim: “Charter schools beget greater accountability and scrutiny over their finances than traditional public schools.”

    The report does not cite any evidence to substantiate this claim. Instead it cites a few reports about “ideal” standards for authorizing and oversight, but these conclude not comport with practice. The intuition some policymakers are calling for oversight standards is the broad recognition that charter school oversight is inadequate.

    As journalists and researchers are finding, charter schools are often not responsive to liberty of Information Act (FOIA) requests. One of the authors of this review (Miron) sent out over 400 FOIA requests to charter school governing boards requesting a copy of their condense with their Education Management Organization (EMO). Only 20% of the charter school boards provided a copy. Another 10% responded, claiming they were not legally required to partake this contract. The remaining 70% simply did not respond.

    While public transparency is a growing concern, there are an increasing number of cases in which charter school boards are not able to obtain data and information about their own schools that is held by the private EMO. In Ohio, charter school boards are currently engaged in litigation to compel White Hat Management to partake details on how this private EMO is spending public dollars on charter schools that are—by nearly every accounts—struggling and failing.


    Criticism: “Charter school teachers are less qualified than teachers in traditional public schools.”

    NAPCS Claim: “Like every public school leaders, charter leaders aim to hire talented, passionate, and qualified teachers who will boost student achievement and contribute to a thriving school culture.”

    The report cites one of its own issue briefs as the only source of evidence to advocate this claim. But a number of independent empirical studies expose that charter schools do, in fact, beget a less qualified labor force, if measured by sustain or certification levels. Teacher attrition rates are extremely towering in charter schools, and dissatisfaction with salaries and working conditions are common among the teachers who leave charter schools. A national study of charter school finance reported that district schools disburse substantially more on teacher salaries than conclude charter schools (districts devoted 21.3% of their current operating expenditures on teacher salaries, compared with 15.1% spent by charter schools).

    Criticism: “Charter schools are anti-union.”

    NAPCS Claim: “Charter schools are neither pro-union nor anti-union: They are pro teacher.”

    Charter schools as originally designed are not inherently anti-union. However, the advocacy groups and the groups that sponsor them, such as the Walton Foundation, conclude beget a track record of being opposed to unions. In fact, the NAPCS title echoes Walmart’s statement that the retailer is not anti-union but pro-associate.

    The NAPCS report points out that 12% of charter schools are unionized, but the largest portion of unionized charter schools are public school conversions. A rapidly increasing symmetry of charter schools are operated by EMOs and, aside from Green Dot (a nonprofit EMO), very few of the schools operated by private EMOs are unionized.

    Charter schools were originally intended to breathe “pro-teacher.” Al Shanker, past President of the American Federation of Teachers, is credited with playing a foundational role in the design and creation of the charter school concept. He and others involved with teachers’ unions believed that charter schools could provide unusual opportunities for teachers to innovate and create unusual learning environments, as well as providing opportunities for professional progress for teachers. Yet what can breathe create in rehearse in today’s charter school is far from that ideal, given the above-mentioned research on working conditions, attrition and pay.


    Criticism: “Charter schools aren’t accountable to the public since their boards aren’t elected.”

    NAPCS Claim: “Charter schools are directly accountable to the public.”

    Once again, this is a title that is based on a charter school example rather than on actual evidence. It equates following public laws and filing fitful reports with being “directly accountable to the public.” Any shape of accountability relies on transparency and the communication of accurate, apposite information. Although some appointed charter school boards assume fiscal and legal responsibility for their school, many boards deem themselves to breathe in an advisory role; their power and responsibility is curtailed by the private EMOs that operate the schools, with a large portion of decisions taken at corporate headquarters which are often located halfway across the country.

    It is common rehearse for EMOs to write charter school proposals and determine how the school will breathe managed and operated long before a board is appointed. It is also common rehearse for the private EMO to provide a list of names for board members which the authorizer then approves. In recent years, board members beget been refused access to information about how money is being spent. Further, there are cases where EMOs beget asked the authorizer to remove board members when they start asking uncomfortable questions about finance.

    Criticism: “Charter schools cream or cherry-pick the best students from traditional public schools.”

    NAPCS Claim: “Public charter schools are generally required to remove every students who want to attend.”

    No empirical evidence is cited to advocate the NAPCS claim. While it is superficially true, it does not rebut the criticism. A variety of practices and abuses are used by charter schools to shape their enrollment. In fact, some staunch charter supporters, most notably Michael Petrilli of the Fordham Institute, notice this relative exclusivity as “a feature, not a bug.” *[Please notice note at end.]

    There are a number of actions charter schools remove to succor ensure that they can finish up with a more homogeneous set of higher-performing students. In some cases charter schools use admission tests to determine “academic interest.” In other cases, charter schools such as KIPP use “admission” or “placement” tests to Make decisions on student grade levels assignments. Rather than breathe held back one to three grade levels, struggling students often simply recrudesce to the district school so they can abide with their peer group.

    Many of the so-called “no excuses” charter schools use grade repetition as a means of weeding out weaker students. (Empirical research shows that the most prominent predictor of a student dropping out of school is requiring them to repeat one or more grade levels). Harsh or push-out school discipline practices can also drive away more difficult students or drive them out once enrolled.

    Because parents and students pick the school, it is almost impossible to avoid self -selection of students and families who are more engaged and who beget more learning and skill in navigating school selection systems, even setting aside any lively steps taken by the charter schools themselves.

    Criticism: “Charter schools don’t enroll children from under-served families.”

    NAPCS Claim: “Public charter schools enroll more students of color and from low-income backgrounds than traditional public schools.”

    There is a terribly misleading bit of veracity to this claim. The report is apparently comparing charter schools that are mostly in urban areas with a national population of traditional public schools. Looking beyond the Gross numbers to compare the demographics of students in charter schools with those of their sending districts, it is true that the populations of minority and low-income students generally reflect the pool from which they were drawn. But the analysis should not cease there.

    The differences emerge when they inspect at school-specific data. While the aggregate percentage of minority students in charter schools is similar to that of the sending districts, a distinct pattern emerges beneath that surface. Charter school enrollment tends to descend into a bimodal distribution, with either high-concentration minority or high-concentration white. In a 2010 study that examined the ethnic background of students in charter schools, one quarter of the charter schools had proportions of minority students that were similar to their local district schools (i.e., a incompatibility of fewer than 10 percentage points). The other three-quarters of the charter schools were either segregative white, segregative black, or segregative Hispanic.

    Aside from a few reports generated by advocacy groups, there is a substantial corpse of research concluding that charter schools are accelerating re-segregation by race, class, measured achievement, special education status (particularly when severity of disability is considered), and English-Language Learner status.28 Two national studies in 2010 examined student characteristics and create that charter schools accelerated segregation of public school systems. Both studies create that charter schools accelerated segregation by race and class.30 One of the studies also looked at special education status and English-Language Learner status of students and create that charter schools were also much more segregative than the local district schools.

    Criticism: “Charter schools serve fewer English Learners than traditional public schools.”

    NAPCS Claim: “There is no significant incompatibility in the percentage of English Learners served by traditional or public charter schools.”

    This title by NAPCS is unsubstantiated and demonstrably false. In 2013 the Government Accountability Office (GAO) reported that it was unable to compare English-Language Learners (ELL) enrollment in charter schools and traditional public schools because “Education’s only available data on school-level ELL enrollment were unreliable and incomplete. Specifically, for over one-third of charter schools, the realm for reporting the counts of ELLs enrolled in ELL programs was left blank.”

    In Miron, et al.’s 2010 study of charter schools operated by for-profit and nonprofit EMOs (which accounted for more than 40% of every charter school students at that time), comparisons between charter schools and the districts in which they equivocate create that charter schools were highly segregated when it came to serving ELLs. In this study, only 4.4% of the students in the EMO-operated charter schools were classified as ELL, compared to 11% of every students in the nation.

    Criticism: “Charter schools serve fewer students with disabilities.”

    NAPCS claim: “According to the most recent publicly available data, 10 percent of charter school students are students with disabilities, compared to 12 percent of students in traditional public schools.”

    Once again, the response from NAPCS is intentionally misleading and false. It is true that the symmetry of children with disabilities in charter schools has increased, although the symmetry of children with ascetic and temper disabilities soundless remains very low.  There are nearby to 60 charter schools in the country that focus on or almost exclusively serve students with disabilities. Most charter schools, however, continue to enroll between 0% and 7% students with disabilities, and these are largely children with mild disabilities, while the districts are soundless answerable for children with temper and ascetic disabilities.  The national middling for district schools was 13% in 2011.

    Criticism: “Charter schools’ stalwart academic results are attributable to charters ‘counseling out’ under-performing students, either explicitly or implicitly, through strict discipline and attendance policies or towering academic or parent involvement expectations.”

    NAPCS Claim: “There is no evidence of charter school policies that explicitly push out students.”

    The manner in which the critique is worded implies that charter schools beget “strong(er) academic results” than traditional public schools, which is not correct. The overall performance of charter school students relative to demographically similar district schools students is mixed, and the results vary considerably among and within states. The title that charter schools conclude not “explicitly push out students” is misleading. Over the past decade, charter school results beget been improving and catching up to those of district schools, largely due to the expansion of college-prep charter schools and so-called “no excuses” charter schools. These schools market themselves as having towering standards and rigorous expectations for students. Responding to this marketing, families self-select.

    Families with children who beget shown past academic commitment, families that can manage to provide transportation, and those that can meet parent volunteering and tutoring expectations are more likely to self-select into these charter schools. Many charter schools use placement tests and require students to repeat grades to ensure that students meet grade-level expectations. Students who are placed back a grade or who are retained in grade often resolve instead to recrudesce to district schools. Many students realize they cannot meet the towering academic or disciplinary standards and pick to recrudesce to the district school, or they are suspended or expelled, causing them to return.

    Charter schools are also not required to back-fill the resulting vacuous places. Again, this is acknowledged, and again charter advocate Michael Petrilli has identified it as a feature, not a bug.* When students leave during the school year, in most states the money will abide with the charter school, even though the local district has to receive students at any time in the academic year. Further, the district is required to provide an education for every students even if the money for that academic year stays with the charter school.

    These and a variety of other practices and abuses beget resulted in charter schools actively shaping the population of students they enroll.


    Criticism: “Charter schools beget higher suspension and expulsion rates.”

    NAPCS claim: “Federal data expose that the expulsion rate for public charter schools is no higher than that of traditional public schools.”

    This sweeping NAPCS title is based on an Education Week article, which drew from a wee number of major city comparisons. Among the selected cities, Los Angeles, Newark, and San Diego had much higher suspension rates for charter schools. For expulsions in 2011 -2012, three of the four highlighted cities (Philadelphia, Washington, and Chicago) had vastly higher expulsion rates for charter schools. NAPCS does report that only about one-fourth of charter schools are in the data set, which raises the further question of what the missing three-fourths of the data might say. Self-selection effects by students remain unaddressed.

    In unusual York City, charter schools regularly beget suspensions and expulsion policies that violate students’ civil rights. In Massachusetts, charter schools enroll 3% of every public school students but account for 6% of every disciplinary removals. Charter schools in this status (especially the Boston-based charter schools) beget much higher discipline rates—many over 20%.

    The NAPCS title is simply not supported.

    Criticism: “Charter school students conclude no better than traditional public school students.”

    NAPCS claim: “Between 2010 and 2013, 15 of 16 independent studies create that students attending charter schools conclude better academically than their traditional school peers.”

    The citation for this title comes from an internally produced NAPCS study. Since there are more than 80 independent and generally accepted studies that examine student achievement in charter schools, such an omission raises the question of why only these 16 are examined.  The NAPCS narrative further restricts its focus to only two of the 16 reports:

    *First is the well-known CREDO study44 that indicates there is no meaningful incompatibility between charter schools and district schools. Maul and McClelland report, “. . . the study overall shows that less than one hundredth of one percent of the variation in test performance is explainable by charter school enrollment.”

    *The second study, ascribed to the University of California at San Diego, is a heart on Reinventing Public Education (CRPE) study that in more lukewarm terms, states, “Charter schools on middling bear results that are at least on par with and, in many cases, better than district-run public schools.” This study was later criticized for reporting exaggerated positive results for statistically insignificant findings.

    It is spicy to note that the most rigorous study, and by far the most expensive, commissioned by the U.S. Department of Education, is not even mentioned. This study, undertaken by Mathematica, examined a sample of oversubscribed (i.e., favorite and thus presumably better on average) charter schools and compared students at those schools to students who were on the waiting list but did not salvage a place. This longitudinal study showed no overall upshot for charter schools.

    Mathematica’s large-scale study identified a large pool of students who applied for charter schools. It then compared charter school students who received a location with students who didn’t and enrolled instead in their district school. The study create no overall incompatibility between the two groups of students. It did find that urban charter school students did slightly better and suburban charter school students did slightly worse.

    The clear respond that appears repeatedly is that after controlling for student demographics, charter schools expose test-score results at levels that are not meaningfully better or worse than district schools. Thus, the criticism (“myth”) is very accurate.

    Criticism: “Underperforming charter schools are allowed to remain open.”

    NAPCS Claim: “Charter schools interject an unprecedented flat of accountability into public education. If a public charter school is not improving student achievement as laid out in its foundational charter agreement, it can breathe closed down.”

    This assertion, which is frequently repeated by charter school advocacy groups, is based on how charter schools are supposititious to labor rather than on actual practice. The core bargain underlying charter school policies is that these schools would breathe freed from various governmental regulations and collective bargaining agreements, and in rotate the schools would beget to demonstrate stalwart performance, as set forth in each specific charter.

    Indeed, they recall that charter school accountability in the 1990s was sometimes referred to as mission-driven accountability. But maxim they can breathe closed is not the very as maxim that they are closed. The staunchly pro-charter heart for Education Reform reports that about 15% of charters beget closed over the past two decades, but most of these closures were for pecuniary or mismanagement reasons. Only 19% of the closures (or about 3% of every charter schools) were closed due to underperformance.

    Criticism: “Charters are an urban-only phenomenon.”

    NAPCS Claim: “Nearly half of every public charter schools are create outside city limits in rustic communities, suburban areas, and towns.”

    This is a criticism not often heard, and it is spicy to deem why the NAPCS report takes it up. The report does not provide a source for its numbers and does not demolish out the percentage of charter schools located in suburban or urban areas. Given that school selection typically requires a concentration of potential customers within a short commuting distance, it is not common for charter schools to locate in rustic areas.

    With the increasing involvement of private EMOs in drafting the charter proposals and determining the location of schools, a more sophisticated use of market analyses is emerging to identify example locations. In some cases, this means locating a charter school just inside the boundary of a suburban district so it can recruit from the city as well as the suburb. If per-pupil funding is higher in the urban district, the charter is often then located just inside the urban district boundary.

    Criticism: “Competition from charter schools is causing neighborhood schools to nearby and harming the students attending them.”

    NAPCS Claim: “No research has shown that the presence of public charter schools causes neighborhood schools to close.”

    The NAPCS narrative does not address the issue it raises. Instead, it digresses on an unrelated review of school closures because of low student test scores. While the research basis includes no studies that they are vigilant of that expose a direct causal relationship between charter school expansion and neighborhood school closure, there are plenty of documented instances of charter schools replacing neighborhood public schools and otherwise draining those schools of resources, thus causing closure.

    The Journey for Justice Alliance asserts that charter school expansion and public school closures beget had a devastating upshot on minority communities.  A study by Arsen and Ni demonstrated that after district schools lose their most resource-rich families to charters and other forms of school choice, they beget less capacity to respond or compete.

    District schools remain at a drawback since they must remove every students whenever they arrive. They also beget fixed costs for infrastructure and must maintain a staffing complement so that they can serve every students, including those who leave a charter school in the middle of the year. wayward to the clear implication of the NAPCS claim, every of these factors beget the direct upshot of closing neighborhood schools and replacing them with charter schools.

    Criticism: “Charter schools remove funding away from traditional public schools.”

    NAPCS Claim: “Public school funding is sent to the public school that a student attends.”

    Note that the NAPCS title does not address the criticism. In the example narrative of charter advocates, “money follows the child.” Thus, when children poke from public schools to charter schools, the traditional public schools lose money that then goes to the charter schools.  Accordingly, in this example narrative, charter schools conclude in fact remove money away from traditional public schools. A divide question is whether this harms public schools, given that the charters also remove away the redistributed students (this is, in part, the question addressed in the previous criticism).

    The NAPCS report returns to the different claim, that charter schools salvage less money than traditional public schools. As previously addressed, this does not remove into account that the public school provides other services (e.g., transportation, special education, and food services) that charter schools may not provide. Furthermore, in many cases, charter school money is a flow-through from the public school. This results in inflated costs when the money is double-counted.  A closer inspect at high-poverty urban communities reveals that limited resources are now being stretched across two parallel systems of education that are, based on school performance measures and pecuniary exigency claims, both struggling.

    Criticism: “Charter schools resegregate public education.”

    NAPCS Claim: “Parents resolve where to route their children to school within the options available to them.”

    Again, note that the NAPCS title does not address the issue. There is a growing corpse of virtually undisputed evidence that charter schools segregate students. The above discussion of criticisms concerning skimming and of serving fewer percentages of various high-need groups applies here as well. But the vital question here is whether segregative and stratifying effects of charter schools can breathe justified or excused by invoking the exercise of choice. Is society’s obligation to purge segregation and to provide equal chance satisfied by pointing to the choices of parents? Or, do another way, if policymakers resolve to create a system based on parental choice, conclude they beget an obligation to mitigate segregative effects caused by that policy?

    Criticism: “Some charter schools are religious schools.”

    NAPCS Claim: “No public school, whether traditional or charter school, can operate as a religious school.”

    After citing a federal law, this categorical title is not discussed further. Reality is partially more nuanced. In Gary Miron’s labor evaluating charter school reforms for status education agencies, he never observed religious instruction during classroom instruction, though he observed schools in which religiosity was evident—for instance, teachers, students, and parents engaged in Christian prayers at lunch time and outside the regular classroom schedule. During site visits for a status evaluation of charter schools in Michigan, a large portion of students enrolled in charter schools operated by National heritage Academies reported that they believed they were in a Christian school.

    In Colorado, the Douglas County School Board used the charter school law to create a shell charter school that then packaged the status money into vouchers for private (mainly religious) schools. Further, in the 1990s, a wee number of charter schools were started by Christian churches or church-affiliated groups. Church leaders direct some charter schools, and some charters lease facilities from church groups represented by the founder or charter school director. Over the past 15 years, there has been a growing number of charter schools catering to Islamic minorities, and there are growing networks of Hebrew charter schools serving the Jewish community.

    At national conferences, it is not uncommon to notice at least one report session devoted to research on religious-oriented charter schools, and there is in fact a growing corpse of literature about “religious” and “faith-based” charter schools. If researchers are studying religious charter schools, it is very likely that religious charter schools conclude in fact exist.

    Criticism: “Charter schools aren’t the incubators of innovation that they title to be.”

    NAPCS Claim: “Public charter schools are using their autonomy to push boundaries to better serve students, generating lessons that can breathe refined and shared throughout the broader public school system.”

    The NAPCS report cites only a few anecdotes to advocate its claim, yet there has been substantial empirical labor on the issue of innovation in charter schools, which the report ignores or overlooks. Much of this research was conducted between 1994 and 2004, a time when one of the strongest arguments for charter schools was that they would breathe innovative and create unique or innovative instructional practices and learning materials.

    With some notable exceptions, this has not been the case. Independent research on the issue shows that charter schools increasingly operate in much the very route as public schools. In fact, over the past decade, charter school advocates beget noticeably shifted away from rhetorical claims that charter schools are innovative, shifting instead to claims that charters profit communities by replicating favorite existing models of schooling.

    -0-You can read the entire seven-part fact-checking report on the website of the National Education Policy heart at the University of Colorado Boulder, complete with conclusions and extensive footnotes.


    After the report above was published, Michael Petrilli of the Fordham Institute contacted the authors and requested the modification of an endnote. I did not publish the endnotes, as famed above, but I am publishing this one to address Petrilli’s concerns.

    *This endnote has been modified from the original version to involve the complete passage from Mr. Petrilli. Petrilli, M. (2014, December 11). Charters can conclude what’s best for students who care. “Room for Debate,” unusual York Times. Retrieved February 16, 2015, from

    The complete passage as written by Mr. Petrilli in “Room for Debate” is as follows:

    Because these are schools of choice, they beget many advantages, including that everyone is there voluntarily. Thus they can Make their discipline codes clear to incoming families (and teachers); those who find the approach too strict can evanesce elsewhere. This is a sterling compromise to a difficult problem: Not every parents (or educators) disagree on how strict is too strict. Traditional public schools that serve every comers beget to find a middle ground,as best they can, which often pleases no one. Schools of choice, including charters, exigency not Make such compromises. That’s a feature, not a bug.

    Although this passage nicely explains how and why they notice stratification in the sectors based, in part, on discipline policies, Mr. Petrilli contacted us to let us know that he does not notice this as being about the “relative exclusivity” of the charter schools. Instead, he sees it as concerning “the fact that schools of selection don’t haveto try to gratify everyone by finding a compromise position on issues like school discipline.” That is, he seems to breathe maxim that the “feature” isn’t the stratification that results from this process, but rather the piece of the process itself that clearly and directly facilitates that stratification, allowing the charters to serve “StudentsWho Care.” We’ll let readers resolve whether Mr. Petrilli is making what lawyers mention to as “a distinction without a difference,” but they are joyful to add his clarification. notice also: Dee, T. S., & Fu, H. (2004). conclude charter schools skim students or drain resources? Economics of Education Review, 23(3), 259-271.

    One recent study of traditional and charter schools in an anonymous school district create no evidence of charter schools in that district pushing out students. While the study is well-designed and has a towering flat of “internal validity,” the questions it asked and its relevance to other districts makes it of limited relevance to the broader question of sorting and stratification. See: Zimmer, R. W., & Guarino, C. M. (2013). Is there empirical evidence that charter schools “push out” low-performing students? Educational Evaluation and Policy Analysis, 0162373713498465.

    The Shame of College Sports | real questions and Pass4sure dumps

    News interest quickly evaporated when the sports media create nothing in the record about Coach Bowden or the canceled football victories. But the transcript revealed plenty about the NCAA. On page 37, T. K. Wetherell, the bewildered Florida status president, lamented that his university had damage itself by cooperating with the investigation. “We self-reported this case,” he said during the hearing, and he later complained that the most ingenuous athletes—those who asked “What’s the ample deal, this happens every the time?”—received the harshest suspensions, while those who clammed up on the advice of lawyers went free. The music-appreciation professor was apparently never questioned. Brenda Monk, the only instructor who consistently cooperated with the investigation, appeared voluntarily to warrant her labor with learning-disabled athletes, only to breathe grilled about her credentials by Potuto in a pettifogging inquisition of remarkable stamina.

    In January of ultimate year, the NCAA’s Infractions Appeals Committee sustained every the sanctions imposed on FSU except the number of vacated football victories, which it dropped, ex cathedra, from 14 to 12. The final penalty locked Bobby Bowden’s official win total on retirement at 377 instead of 389, behind Joe Paterno’s 401 (and counting). This carried stinging symbolism for fans, without bringing down on the NCAA the harsh repercussions it would beget risked if it had issued a television ban or substantial fine.

    Cruelly, but typically, the NCAA concentrated public censure on powerless scapegoats. A dreaded “show cause” order rendered Brenda Monk, the tutor, effectively unhirable at any college in the United States. Cloaking an old-fashioned blacklist in the stately language of law, the order gave notice that any school hiring Monk before a specified date in 2013 “shall, pursuant to the provisions of Bylaw, expose intuition why it should not breathe penalized if it does not restrict the former learning specialist [Monk] from having any contact with student-athletes.” Today she works as an education supervisor at a prison in Florida.

    The Florida status verdict hardly surprised Rick Johnson, the attorney who had represented the college pitchers Andrew Oliver and James Paxton. “All the NCAA’s enforcements are random and selective,” he told me, calling the organization’s appeals process a travesty. (Johnson says the NCAA has never admitted to having wrongly suspended an athlete.) Johnson’s scalding sustain prompted him to undertake a law-review article on the subject, which in rotate sent him trawling through NCAA archives. From the summary tax forms required of nonprofits, he create out that the NCAA had spent nearly $1 million chartering private jets in 2006. “What benign of nonprofit organization leases private jets?,” Johnson asks. It’s hard to determine from tax returns what money goes where, but it looks as if the NCAA spent less than 1 percent of its budget on enforcement that year. Even after its plump Cut for its own overhead, the NCAA dispersed huge sums to its 1,200 member schools, in the manner of a professional sports league. These annual payments are universal—every college gets something—but widely uneven. They sustain the disparate shareholders (barely) united and speaking for every of college sports. The payments coerce unity within the structure of a private association that is unincorporated and unregulated, exercising amorphous powers not delegated by any government.

    Searching through the archives, Johnson came across a 1973 memo from the NCAA common counsel recommending the adoption of a due-process procedure for athletes in disciplinary cases. Without it, warned the organization’s lawyer, the association risked ample liability claims for deprivation of rights. His proposal went nowhere. Instead, apparently to circumscribe costs to the universities, Walter Byers had implemented the year-by-year scholarship rule that Joseph Agnew would challenge in court 37 years later. Moreover, the NCAA’s 1975 convention adopted a second recommendation “to discourage legal actions against the NCAA,” according to the minutes. The members voted to create Bylaw 19.7, Restitution, to bulldoze college athletes in disputes with the NCAA. Johnson recognized this provision every too well, having won the temporary court judgment that the rule was illegal if not downright despotic. It made him nearly apoplectic to learn that the NCAA had deliberately drawn up the restitution rule as an impediment to due process, wayward to the recommendation of its own lawyer. “They want to pulp these kids,” he says.

    The NCAA, of course, has never expressed such a desire, and its public comments on due process watch to breathe anodyne. At a congressional hearing in 2004, the infractions-committee vice chair, Josephine Potuto, repeatedly argued that although the NCAA is “not bound by any judicial due process standards,” its enforcement, infractions, and hearing procedures meet and “very likely exceed” those of other public institutions. Yet when pressed, Potuto declared that athletes would beget no standing for due process even if the Supreme Court had not exempted the NCAA in the 1988 Tarkanian decision. “In order to compass due-process issues as a legal Constitutional principle, the individual challenging has to beget a substantive property or liberty interest,” she testified. “The chance to play intercollegiate athletics does not mount to that level.”

    To translate this from the legal jargon, Potuto used a circular controversy to confine college athletes beneath any privilege to liberty or property in their own athletic effort. They beget no stake to search their rights, she claimed, because they beget no rights at stake.

    Potuto’s assertion might breathe judged preposterous, an heir of the Dred Scott dictum that slaves possessed no rights a white person was bound to respect. But she was merely being honest, articulating assumptions almost everyone shares without question. Whether motivated by hostility for students (as critics like Johnson allege), or by noble and paternalistic tough fondness (as the NCAA professes), the denial of fundamental due process for college athletes has stood unchallenged in public discourse. like other NCAA rules, it emanates naturally from the premise that college athletes own no interest in sports beyond exercise, character-building, and sterling fun. Who represents these young men and women? No one asks.

    Video: Taylor branch explains the circular logic that keeps college athletes from getting a slice of the mammoth industry that surrounds them (part 3 of 3)

    The debates and commissions about reforming college sports nibble around the edges—trying to reduce corruption, to prevent the “contamination” of athletes by lucre, and to maintain at least a pretense of concern for academic integrity. Everything stands on the implicit presumption that preserving amateurism is necessary for the well-being of college athletes. But while amateurism—and the free labor it provides—may breathe necessary to the preservation of the NCAA, and perhaps to the profit margins of various interested corporations and educational institutions, what if it doesn’t profit the athletes? What if it hurts them?

    “The Plantation Mentality”

    “Ninety percent of the NCAA revenue is produced by 1 percent of the athletes,” Sonny Vaccaro says. “Go to the skill positions”—the stars. “Ninety percent African Americans.” The NCAA made its money off those kids, and so did he. They were not every detestable people, the NCAA officials, but they were blind, Vaccaro believes. “Their organization is a fraud.”

    Vaccaro retired from Reebok in 2007 to Make a immaculate demolish for a crusade. “The kids and their parents gave me a sterling life,” he says in his peppery staccato. “I want to give something back.” convoke it redemption, he told me. convoke it education or a sterling cause. “Here’s what I preach,” said Vaccaro. “This goes beyond race, to human rights. The least educated are the most exploited. I’m probably closer to the kids than anyone else, and I’m 71 years old.”

    Vaccaro is officially an unpaid consultant to the plaintiffs in O’Bannon v. NCAA. He connected Ed O’Bannon with the attorneys who now depict him, and he talked to some of the additional co-plaintiffs who beget joined the suit, among them Oscar Robertson, a basketball Hall of Famer who was incensed that the NCAA was soundless selling his image on playing cards 50 years after he left the University of Cincinnati.

    Jon King, an antitrust attorney at Hausfeld LLP in San Francisco, told me that Vaccaro “opened their eyes to massive revenue streams hidden in college sports.” King and his colleagues beget drawn on Vaccaro’s vast learning of athletic-department finances, which involve off-budget accounts for shoe contracts. Sonny Vaccaro and his wife, Pam, “had a mountain of documents,” he said. The outcome of the 1984 Regents determination validated an antitrust approach for O’Bannon, King argues, as well as for Joseph Agnew in his continuing case against the one-year scholarship rule. Lawyers for Sam Keller—a former quarterback for the University of Nebraska who is featured in video games—are pursuing a parallel “right of publicity” track based on the First Amendment. soundless other lawyers could revive Rick Johnson’s case against NCAA bylaws on a larger scale, and King thinks claims for the rights of college players may breathe viable also under laws pertaining to contracts, employment, and civil rights.

    Vaccaro had sought a law hard for O’Bannon with pockets profound enough to withstand an expensive war of attrition, fearing that NCAA officials would fight discovery to the end. So far, though, they beget been forthcoming. “The numbers are off the wall,” Vaccaro says. “The public will notice for the first time how every the money is distributed.”

    Vaccaro has been traveling the after-dinner circuit, proselytizing against what he sees as the NCAA’s exploitation of young athletes. Late in 2008, someone who heard his stump speech at Howard University mentioned it to Michael Hausfeld, a prominent antitrust and human-rights lawyer, whose hard had won suits against Exxon for indigenous Alaskans and against Union Bank of Switzerland for Holocaust victims’ families. Someone tracked down Vaccaro on vacation in Athens, Greece, and he flew back directly to meet Hausfeld. The shoe salesman and the white-shoe attorney made common cause.

    Hausfeld LLP has offices in San Francisco, Philadelphia, and London. Its headquarters are on K Street in Washington, D.C., about three blocks from the White House. When I talked with Hausfeld there not long ago, he sat in a cavernous conference room, tidy in pinstripes, hands folded on a spotless table that reflected the skyline. He spoke softly, without pause, condensing the intricate fugue of antitrust litigation into simple sentences. “Let’s start with the basic question,” he said, noting that the NCAA claims that student-athletes beget no property rights in their own athletic accomplishments. Yet, in order to breathe eligible to play, college athletes beget to waive their rights to proceeds from any sales based on their athletic performance.

    “What privilege is it that they’re waiving?,” Hausfeld asked. “You can’t waive something you don’t have. So they had a privilege that they gave up in consideration to the principle of amateurism, if there breathe such.” (At an April hearing in a U.S. District Court in California, Gregory Curtner, a representative for the NCAA, stunned O’Bannon’s lawyers by saying: “There is no document, there is no substance, that the NCAA ever takes from the student-athletes their rights of publicity or their rights of likeness. They are at every times owned by the student-athlete.” Jon King says this is “like telling someone they beget the winning lottery ticket, but by the way, it can only breathe cashed in on Mars.” The court denied for a second time an NCAA motion to cashier the O’Bannon complaint.)

    The waiver clause is nestled among the paragraphs of the “Student-Athlete Statement” that NCAA rules require breathe collected yearly from every college athlete. In signing the statement, the athletes attest that they beget professional status, that their stated SAT scores are valid, that they are willing to disclose any educational documents requested, and so forth. Already, Hausfeld said, the defendants in the Ed O’Bannon case beget said in court filings that college athletes thereby transferred their promotional rights forever. He paused. “That’s ludicrous,” he said. “Nobody assigns rights like that. Nobody can asseverate rights like that.” He said the pattern demonstrated clear ill-treat by the collective power of the schools and every their conferences under the NCAA umbrella—“a most effective cartel.”

    The faux example of amateurism is “the elephant in the room,” Hausfeld said, sending for a book. “You can’t salvage to the bottom of their case without exposing the hypocrisy of amateurism, and Walter Byers says it eloquently.” An second brought in Byers’s memoir. It looked garish on the shiny table because dozens of pink Post-its protruded from the text. Hausfeld read to me from page 390:

    The college player cannot sell his own feet (the coach does that) nor can he sell his own appellation (the college will conclude that). This is the plantation mentality resurrected and blessed by today’s campus executives.

    He looked up. “That wasn’t me,” he said. “That was the NCAA’s architect.” He create a key recommendation on page 388:

    Prosecutors and the courts, with the advocate of the public, should use antitrust laws to demolish up the collegiate cartel—not just in athletics but possibly in other aspects of collegiate life as well.

    Could the reserve become evidence? Might the aged Byers testify? (He is now 89.) Was that piece of the plaintiffs’ strategy for the O’Bannon trial? Hausfeld smiled faintly. “I’d rather the NCAA lawyers not fully understand the strategy,” he said.

    He do the spiny reserve away and previewed what lies ahead. The court soon would qualify his clients as a class. Then the Sherman Antitrust Act would provide for thorough discovery to demolish down exactly what the NCAA receives on everything from video clips to jerseys, condense by contract. “And they want to know what they’re carrying on their books as the value of their archival footage,” he concluded. “They converse it’s a lot of money. They agree. How much?”

    The labor will breathe hard, but Hausfeld said he will win in the courts, unless the NCAA folds first. “Why?” Hausfeld asked rhetorically. “We know their clients are foreclosed: neither the NCAA nor its members will permit them to participate in any of that licensing revenue. Under the law, it’s up to them [the defendants] to give a pro-competitive justification. They can’t. finish of story.”

    In 2010 the third Knight Commission, complementing a previous commission’s recommendation for published reports on academic progress, called for the finances of college sports to breathe made transparent and public—television contracts, conference budgets, shoe deals, coaches’ salaries, stadium bonds, everything. The recommendation was based on the worthy truism that sunlight is a proven disinfectant. But in practice, it has not been applied at all. Conferences, coaches, and other stakeholders resisted disclosure; college players soundless beget no route of determining their value to the university.

    “Money surrounds college sports,” says Domonique Foxworth, who is a cornerback for the NFL’s Baltimore Ravens and an executive-committee member for the NFL Players Association, and played for the University of Maryland. “And every player knows those millions are floating around only because of the 18-to-22-year-olds.” Yes, he told me, even the second-string punter believes a miracle might heave him into the NFL, and why not? In every the many pages of the three voluminous Knight Commission reports, there is but one paragraph that addresses the real-life choices for college athletes. “Approximately 1 percent of NCAA men’s basketball players and 2 percent of NCAA football players are drafted by NBA or NFL teams,” stated the 2001 report, basing its figures on a review of the previous 10 years, “and just being drafted is no assurance of a successful professional career.” Warning that the odds against professional athletic success are “astronomically high,” the Knight Commission counsels college athletes to avoid a “rude surprise” and to stick to regular studies. This is sound advice as far as it goes, but it’s a bromide that pinches off discussion. Nothing in the typical college curriculum teaches a sweat-stained guard at Clemson or Purdue what his monetary value to the university is. Nothing prods students to believe independently about amateurism—because the universities themselves beget too much invested in its preservation. Stifling thought, the universities, in league with the NCAA, beget failed their own primary mission by providing an empty, cynical education on college sports.

    The most basic reform would deal the students as what they are—adults, with rights and intuition of their own—and vouchsafe them a meaningful voice in NCAA deliberations. A restoration of plenary citizenship to “student-athletes” would facilitate open governance, making it practicable to enforce pledges of transparency in both academic standards and athletic finances. Without that, the NCAA has no effective checks and balances, no route for the students to provide informed consent regarding the route they are governed. A thousand questions equivocate willfully silenced because the NCAA is naturally unafraid of giving “student-athletes” a true voice. Would college players breathe content with the augmented scholarship or allowance now requested by the National College Players Association? If a player’s worth to the university is greater than the value of his scholarship (as it clearly is in some cases), should he breathe paid a salary? If so, would teammates in revenue sports want to breathe paid equally, or in salaries stratified according to talent or value on the field? What would the athletes want in Division III, where athletic budgets sustain rising without scholarships or substantial sports revenue? Would athletes search more or less variance in admissions standards? Should non-athletes also beget a voice, especially where involuntary student fees advocate more and more of college sports? Might some schools pick to specialize, paying players only in elite leagues for football, or lacrosse? In athletic councils, how much would high-revenue athletes value a simple thank you from the tennis or field-hockey players for the newly specified subsidies to their facilities?

    University administrators, already besieged from every sides, conclude not want to even believe about such questions. Most cringe at the thought of bargaining with athletes as a common manager does in professional sports, with untold effects on the budgets for coaches and every other sports item. “I would not want to breathe piece of it,” North Carolina Athletic Director Dick Baddour told me flatly. After 44 years at UNC, he could scarcely contemplate a world without professional rules. “We would beget to believe long and hard,” Baddour added gravely, “about whether this university would continue those sports at all.”

    I, too, once reflexively recoiled at the view of paying college athletes and treating them like employees or professionals. It feels abhorrent—but for reasons having to conclude more with sentiment than with practicality or law. Not just fans and university presidents but judges beget often create cursory, non-statutory excuses to leave professional traditions intact. “Even in the increasingly commercial modern world,” said a federal-court judge in Gaines v. NCAA in 1990, “this Court believes there is soundless validity to the Athenian concept of a complete education derived from fostering the plenary growth of both intellect and body.” The fact that “the NCAA has not distilled amateurism to its purest form,” said the Fifth Circuit Court of Appeals in 1988, “does not denote its attempts to maintain a admixture containing some professional elements are unreasonable.”

    But one route or another, the smokescreen of amateurism may soon breathe swept away. For one thing, a triumph by the plaintiffs in O’Bannon’s case would radically transform college sports. Colleges would likely beget to either cease profiting from students or start paying them. The NCAA could also breathe forced to pay tens, if not hundreds, of millions of dollars in damages. If O’Bannon and Vaccaro and company win, “it will rotate college sports on its ear,” said Richard Lapchick, the president of the National Consortium for Academics and Sports, in a recent interview with The unusual York Times.

    Though the O’Bannon case may remove several years yet to compass resolution, developments on other fronts are chipping away at amateurism, and at the NCAA. This past summer, Sports Illustrated editorialized in favor of allowing college athletes to breathe paid by non-university sources without jeopardizing their eligibility. At a press conference ultimate June, Steve Spurrier, the coach of the South Carolina Gamecocks football team (and the winner of the 1966 Heisman Trophy as a Florida Gator), proposed that coaches start paying players $300 a game out of their own pockets. The coaches at six other SEC schools (Alabama, Florida, Ole Miss, Mississippi State, LSU, and Tennessee) every endorsed Spurrier’s proposal. And upshot Emmert, the NCAA president, recently conceded that ample changes must come. “The integrity of collegiate athletics is seriously challenged today by rapidly growing pressures coming from many directions,” Emmert said in July. “We beget reached a point where incremental change is not sufficient to meet these challenges. I want us to act more aggressively and in a more comprehensive route than they beget in the past. A few unusual tweaks of the rules won’t salvage the job done.”

    Threats to NCAA dominion also percolate in Congress. Aggrieved legislators beget sponsored numerous bills. Senator Orrin Hatch, citing mistreatment of his Utah Utes, has called witnesses to argue practicable antitrust remedies for the Bowl Championship Series. Congressional committees beget already held hearings captious of the NCAA’s refusal to ensue due process in disciplinary matters; other committees beget explored a mount in football concussions. ultimate January, calls went up to investigate “informal” football workouts at the University of Iowa just after the season-ending bowl games—workouts so grueling that 41 of the 56 professional student-athletes collapsed, and 13 were hospitalized with rhabdomyolysis, a life-threatening kidney condition often caused by excessive exercise.

    The greatest threat to the viability of the NCAA may near from its member universities. Many experts believe that the churning instability within college football will drive the next major change. President Obama himself has endorsed the drumbeat yell for a national playoff in college football. This past spring, the Justice Department questioned the BCS about its adherence to antitrust standards. Jim Delany, the commissioner of the ample Ten, has estimated that a national playoff system could bear three or four times as much money as the existing bowl system does. If a significant troop of football schools were to demonstrate that they could orchestrate a true national playoff, without the NCAA’s assistance, the association would breathe terrified—and with sterling reason. Because if the ample sports colleges don’t exigency the NCAA to administer a national playoff in football, then they don’t exigency it to conclude so in basketball. In which case, they could Cut out the middleman in March Madness and dash the tournament themselves. Which would deprive the NCAA of nearby to $1 billion a year, more than 95 percent of its revenue. The organization would breathe reduced to a rule reserve without money—an organization aspiring to enforce its rules but without the pecuniary authority to enforce anything.

    Thus the playoff dreamed of and hankered for by millions of football fans haunts the NCAA. “There will breathe some benign of playoff in college football, and it will not breathe dash by the NCAA,” says Todd Turner, a former athletic director in four conferences (Big East, ACC, SEC, and Pac-10). “If I’m at the NCAA, I beget to worry that the playoff group can salvage basketball to demolish away, too.”

    This danger helps warrant why the NCAA steps gingerly in enforcements against powerful colleges. To alienate member colleges would breathe to jeopardize its own existence. Long gone are television bans and the “death penalty” sentences (commanding season-long shutdowns of offending teams) once meted out to Kentucky (1952), Southwestern Louisiana (1973), and Southern Methodist University (1987). Institutions receive mostly symbolic slaps nowadays. real punishments descend heavily on players and on scapegoats like literacy tutors.

    A deeper intuition explains why, in its predicament, the NCAA has no recourse to any principle or law that can warrant amateurism. There is no such thing. Scholars and sportswriters long for august juries to ferret out every forbidden bauble that reaches a college athlete, but the NCAA’s ersatz courts can only masquerade as public authority. How could any statute impose professional status on college athletes, or on anyone else? No legal definition of professional exists, and any attempt to create one in enforceable law would expose its repulsive and unconstitutional nature—a bill of attainder, stripping from college athletes the rights of American citizenship.

    For every their queasiness about what would occur if some athletes were to salvage paid, there is a successful precedent for the professionalization of an professional sports system: the Olympics. For years, Walter Byers waged war with the NCAA’s older and more powerful nemesis, the professional Athletic Union, which since 1894 had overseen U.S. Olympic athletes. dash in high-handed fashion, the AAU had infamously banned Jesse Owens for life in 1936—weeks after his four heroic gold medals punctured the Nazi title of Aryan supremacy—because instead of using his sudden fame to tour and Make money for the AAU at track meets across Europe, he came home early. In the early 1960s, the fights between the NCAA and the AAU over who should manage Olympic athletes become so acrid that President Kennedy called in common Douglas MacArthur to try to mediate a truce before the Tokyo Olympic Games.

    Ultimately, Byers prevailed and effectively neutered the AAU. In November 1978, President Jimmy Carter signed the bipartisan professional Sports Act. Amateurism in the Olympics soon dissolved—and the world did not end. Athletes, granted a 20 percent voting stake on every Olympic sport’s governing body, tipped balances in the United States and then inexorably around the world. First in marathon races, then in tennis tournaments, players soon were allowed to accept prize money and sustain their Olympic eligibility. Athletes profited from sponsorships and endorsements. The International Olympic Committee expunged the word professional from its charter in 1986. Olympic officials, who had once disdained the NCAA for offering scholarships in exchange for athletic performance, came to welcome millionaire athletes from every quarter, while the NCAA soundless refused to let the pro Olympian Michael Phelps swim for his college team at Michigan.

    This sweeping shift left the Olympic reputation intact, and perhaps improved. Only hardened romantics mourned the professional code. “Hey, near on,” said Anne Audain, a track-and-field star who once held the world record for the 5,000 meters. “It’s like losing your virginity. You’re a runt misty for awhile, but then you realize, Wow, there’s a all unusual world out there!”

    Without logic or practicality or fairness to advocate amateurism, the NCAA’s final retreat is to sentiment. The Knight Commission endorsed its heartfelt yell that to pay college athletes would breathe “an unacceptable capitulation to despair.” Many of the people I spoke with while reporting this article felt the very way. “I don’t want to pay college players,” said Wade Smith, a tough criminal attorney and former star running back at North Carolina. “I just don’t want to conclude it. We’d lose something precious.”

    “Scholarship athletes are already paid,” declared the Knight Commission members, “in the most meaningful route poss-ible: with a free education.” This evasion by prominent educators severed my ultimate reluctant, emotional tie with imposed amateurism. I create it worse than self-serving. It echoes masters who once claimed that heavenly salvation would outweigh earthly wrong to slaves. In the era when their college sports first arose, colonial powers were turning the all world upside down to define their own interests as all-inclusive and benevolent. Just so, the NCAA calls it heinous exploitation to pay college athletes a impartial portion of what they earn.

    We want to hear what you believe about this article. Submit a missive to the editor or write to

    Taylor branch is the author of, among other works, America in the King Years, a three-volume history of the civil-rights movement, for which he won the Pulitzer Prize and the National reserve Critics set Award.

    Governance & Securities Law Focus: Europe Edition - January 2019 | real questions and Pass4sure dumps

    Attorney Advertising — Prior results conclude not guarantee a similar outcome JANUARY 2019/EUROPE CORPORATE GOVERNANCE AND SECURITIES LAW UPDATE Proxima Nova A ExCn 35pt Below is a summary of the main developments in US and EU corporate governance and securities law and certain pecuniary markets regulation developments since their ultimate update on 18 October 2018. pecuniary regulatory developments are available here. IN THIS ISSUE EU DEVELOPMENTS ................................................................................................................................................. 3 European Commission labor Programme 2019: Corporate Aspects ....................................................................... 3 MAR: ESMA Updated exam questions mp;A (October and November 2018) ...................................................................................... 3 ESMA’s First Annual Report on Administrative and Criminal Sanctions and Other Administrative Measures under MAR ............................................................................................................................................................. 4 European Company and Securities Law: Commission Communication on the unique Market (Corporate Aspects) ...................................................................................................................................................................................... 4 European Commission Publishes Communication on Capital Markets Union ..................................................... 4 European Commission Publishes Final Draft Commission Delegated Regulation on the Specification of a unique Electronic Reporting Format ................................................................................................................................... 4 UK DEVELOPMENTS ................................................................................................................................................. 4 Brexit Legislation ..................................................................................................................................................................... 4 CMA Launches Market Study into Statutory Audit Market......................................................................................... 5 BEIS Committee Launches investigation on the Future Of Audit ......................................................................................... 5 FRC Publishes Final Report of the Kingman Review (Corporate Aspects) ............................................................ 6 CMA Publishes Update Paper on Statutory Audit Proposed Reforms to improve Competition ..................... 6 BEIS Announces Independent Review of UK Audit Standards ................................................................................. 7 FCA Publishes Discussion Paper on the Disclosure of Climate Change Risks by Listed Companies .......... 7 FRC Publishes Review of Corporate Governance and Reporting 2017/2018 ....................................................... 7 FTSE 100 Poll: Stakeholder tryst Mechanisms and Section 172 Disclosures ...................................... 9 FRC Launches Project to Reconsider Purposes of Corporate Reporting ............................................................... 9 FRC Publishes Review of Reporting by Smaller Listed and aim Companies ....................................................... 9 UK Government Publishes Companies (Directors’ Report) and Limited Liability Partnerships (Energy and Carbon Report) Regulations 2018 .................................................................................................................................... 10 Hampton-Alexander Publishes Third Annual Report on Improving Gender equilibrium in FTSE Leadership 10 Glass Lewis Publishes 2019 UK Proxy Guidelines ........................................................................................................ 11 ISS Publishes 2019 Proxy Voting Guidelines Updates ................................................................................................ 11 Investment Association Publishes Principles of Remuneration for 2019 ............................................................. 12 LSE Issues Public Censure and Fine for Breaches of aim Rules 11 and 31 ........................................................... 13 GC100 and Investor Group Publish Updated Directors’ Remuneration Reporting Guidance ........................ 13 FRC Publishes Final Wales Corporate Governance Principles for large Private Companies ....................... 14 PERG Publishes Report on Conformity with Walker Guidelines and Updated sterling rehearse Reporting by Portfolio Companies .............................................................................................................................................................. 14 2 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER FCA Publishes Latest Review on MAR Implementation ............................................................................................ 15 NEX Exchange Publishes Growth Market Rules for Consultation ......................................................................... 15 US DEVELOPMENTS ............................................................................................................................................... 16 SEC and NYSE/Nasdaq Developments ................................................................................................................ 16 SEC Report Urges Public Companies to deem Cyber Threats in Internal Accounting Controls............ 16 SEC Overhauls Disclosure Requirements for Mining Companies ........................................................................... 17 Amendments to Nasdaq Shareholder Approval Rule for Private Placements ................................................... 17 Risk Disclosure—SEC Areas of Focus in 2019 ...............................................................................................................18 SEC Goes After Company for Presenting Non-GAAP pecuniary Measures without Giving Equal Prominence to GAAP Measures ....................................................................................................................................... 19 Reduced SEC Operations during Federal Government Shutdown....................................................................... 20 Shearman Publishes Recent Trends and Patterns in the Enforcement of the FCPA ...................................... 20 Shearman Publishes Recent Developments and Trends for the Preparation of shape 20-F ......................... 21 Noteworthy US Securities Litigation and Enforcement..................................................................................... 21 US Department of Justice Changes Policy on Corporate Cooperation ............................................................... 21 US Supreme Court Considers Relationship Between Scheme Liability and fallacious Statement Liability Under Federal Securities Laws ........................................................................................................................................ 22 The US Supreme Court Will Analyse Mental status gauge for Claims Alleging Misstatements in Connection with Tender Offers .........................................................................................................................................23 SEC Enforcement Releases Its Annual Report .............................................................................................................24 Snap Securities Class Action Leads to Government Subpoenas ......................................................................... 25 Aveo CFO create Liable for Securities Fraud for Failing to show Investors about Regulatory Developments ....................................................................................................................................................................... 25 ITALIAN DEVELOPMENTS ..................................................................................................................................... 25 Consob Increases Threshold for Offerings Exempt from the obligation to Publish a Prospectus to €8 Million ....................................................................................................................................................................................... 25 Borsa Italiana Amends Rules of the Market and the Related Instructions to involve unusual Central Counterparties Operating on MTA and ETF Plus Markets ...................................................................................... 26 HONG KONG DEVELOPMENTS ........................................................................................................................... 26 SFC Sets Out unusual Regulatory Approach for Virtual Assets................................................................................... 26 3 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER EU DEVELOPMENTS European Commission labor Programme 2019: Corporate Aspects On 24 October 2018, the European Commission published its 2019 labor Programme. The programme covers the repeal of the remaining provisions of the Consolidated Admissions and Reporting Directive, along with further details of the Commission’s aim to carry out checks of corporate reporting and evaluate corporate reporting requirements. The programme also includes information about the Commission’s position on pending proposals. The European Commission labor Programme can breathe accessed here. MAR: ESMA Updated exam questions mp;A (October and November 2018) October On 1 October 2018, the European Securities and Markets Authority (ESMA) published its twelfth edition of its EU Market ill-treat Regulation (MAR) exam questions mp;A. This edition featured the addition of three unusual questions and the responses (5.3, 5.4, and 5.5) clarifying the position of an issuer who is either a credit or pecuniary institution and is considering delaying the disclosure of inside information to preserve pecuniary stability as permitted under Article 17(5) MAR. The unusual questions and responses are:  Question 5.3, which clarifies the factors the issuer should deem when evaluating whether the conditions listed in Article 17(5) apply and therefore enable the issuer to leisurely disclosure.  Question 5.4, which confirms that the issuer must notify the NCA of the expected duration of the leisurely under Article 17(5). The issuer must inform the NCA if it becomes vigilant of an event or issue which may strike the duration of the delay.  Question 5.5, which confirms that an issuer will not breathe able to reckon on Article 17(4) to leisurely disclosure where the NCA does not provide its consent under Article 17(5) to leisurely disclosure of inside information. November On 12 November 2018, ESMA published the thirteenth edition of its MAR exam questions mp;A. The main highlight was the introduction of question 7.10, which discusses whether the restriction in Article 19(11) MAR, preventing PDMRs from trading in a closed period, applies to transactions of the issuer relating to its own pecuniary instruments where it is the PDMR who makes the determination or implements a previous determination with respect to the issuer’s “own dealing.” In its answer, ESMA explains that the restriction in Article 19(11) MAR does not prohibit the above issuer transactions as the PDMRs are implementing the transaction in their capacity as directors or employees for the issuer. The transactions are not for the profit of a third party as Article 19(11) specifies but technically actions of the issuer itself. Article 19(11) MAR does not prohibit the issuer itself from conducting these transactions but the PDMRs within the issuer. It should breathe famed that the PDMR implementing a determination on behalf of the issuer remains subject to the restrictions of insider dealing and must therefore proceed with caution. The MAR exam questions mp;As can breathe accessed here. 4 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER ESMA’s First Annual Report on Administrative and Criminal Sanctions and Other Administrative Measures under MAR On 15 November 2018, ESMA published its first annual report on administrative and criminal sanctions imposed by member status authorities under MAR. The report details the number of criminal or administrative sanctions imposed from 3 July 2016 to 31 December 2017 and can breathe accessed here. European Company and Securities Law: Commission Communication on the unique Market (Corporate Aspects) On 22 November 2018, the European Commission published a communication on the unique Market calling on the Council of the European Union to adopt certain legislative proposals (including relating to the Prospectus Regulation (EU) 2017/1129 (“Prospectus Regulation”) and promotion of SME growth markets). The European Commission also directed member states to vigilantly implement and enforce EU rules in order to maintain and maximise the economic benefits of the unique Market (which it estimates to amount to about 8.5% of the EU’s Gross domestic product). The European Commission communication can breathe accessed here. European Commission Publishes Communication on Capital Markets Union On 28 November 2018, the European Commission published a communication on the Capital Markets Union marking the achievements of the Union thus far and listing unimplemented legislative proposals. These involve proposals relating to promoting SME growth markets, cross-border distribution of collective investment funds and sustainable finance. The European Commission called on the European Parliament and the Council to adopt the pending proposals before the European Parliament elections in May 2019. The European Commission communication can breathe accessed here. European Commission Publishes Final Draft Commission Delegated Regulation on the Specification of a unique Electronic Reporting Format On 17 December 2018, the European Commission published a final draft text of its delegated regulation with regard to regulatory technical standards on the specification of a unique reporting format. From 1 January 2020, the Transparency Directive requires every annual pecuniary reports to breathe prepared in the eXtensible HyperText Markup Language, or XHTML, format (for the human-readable representation of pecuniary reports) and eXtensible business Reporting Language, or XBRL, format for machine-readable reports. The regulation will enter into compel on the twentieth day of its publication in the Official Journal and can breathe accessed here. UK DEVELOPMENTS Brexit Legislation As the U.K. prepares to leave the EU — with or without a “deal” — at 11 pm on 29 March 2019, the U.K. Government has published a all raft of draft secondary legislation to onshore EU legislation. The draft U.K. legislation is designed largely to ensure that, as required by the U.K.’s European Union (Withdrawal) Act 2018, there will breathe no deficiencies or problems with respect to the effective “onshoring” of existing EU law into U.K. domestic law with upshot from 29 March 2019 (if there is a “no deal Brexit”) or the finish of any “transition period” that is agreed in the withdrawal agreement as piece of a Brexit deal. The draft legislation 5 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER corrects a limited compass of deficiencies in directly applicable EU Regulations that will breathe retained on exit and in the existing U.K. law that implements the requirements of EU Directives. Of particular interest to the readership of this newsletter will breathe the draft legislation published in the region of securities and pecuniary services regulation. This draft legislation includes, for example, legislation addressing deficiencies in the route in which the provisions of the Prospectus Directive, Transparency Directive, Market ill-treat Regulation, public takeover regulation under the U.K. Takeover Code, Accounts Directive, European Company Statute, AIFM Directive, MiFID II, EMIR, Benchmarks Regulation and Securitisation Regulation, etc., would apply in U.K. domestic law after Brexit. In most, if not every cases, the draft legislation is not intended to interject into any policy changes, other than to reflect the U.K.’s unusual position outside the EU and to succor smooth the U.K.’s transition to fully leaving the EU. However, necessarily, there are various determination points that U.K. legislators beget needed to remove in relation to territorial scope and third-country issues as well as future relationships. Once there is greater clarity and certitude about the exact timing and legal basis of Brexit, they may, as appropriate, issue an update and further summary of key aspects of certain of this Brexit legislation. CMA Launches Market Study into Statutory Audit Market On 9 October 2018, the Competition and Markets Authority (CMA) launched a market study into the statutory audit market. The study will explore the following main themes:  selection and switching — despite changes introduced by the Competition Commission to strengthen the competition between the ample Four, the largest U.K. companies soundless rotate almost exclusively to one of them when making their selection of auditor.  Resilience — commentators beget raised concerns around whether each of the ample Four is ‘too ample to fail,’ potentially threatening long-term competition if any of the ample Four were to exit the audit market.  Incentives — as companies pick their own auditors, the market study will explore what incentive issues are raised. In particular, it will deem the compass of incentives for every stakeholders in the market, and how this affects competition. The CMA notes that these themes are essential in achieving its overall objective of ensuring delivery of high- character audits, at competitive prices. The CMA press release can breathe accessed here. The market study notice can breathe accessed here. The invitation to remark can breathe accessed here. BEIS Committee Launches investigation on the Future Of Audit On 12 November 2018, the Department for Business, Energy and Industrial Strategy Committee (the “BEIS Committee”) launched an investigation into the future of audit, focusing on the likely impacts of the market study launched by the CMA (see above) and the Kingman review (further details of which are addressed below). In particular, the BEIS Committee is inviting evidence on the following areas:  The relationship between competition and character in the audit market and how reforms in one region should complement the other. 6 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER  Whether there is agreement with the CMA and Kingman proposals, whether the remedies proposed by the CMA are likely to expand character and reliance in audits and whether there are any potential unintended consequences.  The extent to which conflicts of interest undermine reliance in audits and how they can breathe removed or mitigated.  The instant of the relationship between the auditor and audited company to the character of audit, how to ensure there is the privilege flat of challenge and the role of shareholders in ensuring high-quality audits.  Whether there is consistency between the proposed audit reforms and other recent reforms of corporate governance and whether any consequential reforms are required. The deadline for written submissions is 11 January 2019 and the investigation announcement can breathe accessed here. FRC Publishes Final Report of the Kingman Review (Corporate Aspects) On 18 December 2018, the Department for Business, Energy and Industrial Strategy (“BEIS”) published the final report of the Kingman review. The review considers how to strengthen the position and reputation of the pecuniary Reporting Council (FRC) and ensure that its structures, culture and capacity are apt for the future. The review proposed a number of recommendations, including:  The swift replacement of the FRC with a unusual independent regulator, the Audit, Reporting and Governance Authority (ARGA), which would breathe directly accountable to Parliament and whose overarching duty is to ‘consumers of pecuniary information,’ not producers.  Developing ARGA’s capabilities to enable it to identify and mitigate emerging risks.  An finish to the current self-regulatory model for the largest audit firms.  A Government review of the U.K.’s definition of a ‘public interest entity’ (PIE), which only covers entities with transferable securities admitted to trading in the European Economic region (EEA). At present, only PIEs are bound by caps on the provision of non-audit labor by audit firms.  ARGA should not breathe funded on a willful basis and BEIS should do in location a statutory levy.  BEIS should closely monitor the accelerate and effectiveness of ARGA’s performance and ARGA should report annually to Parliament on its enforcement performance.  In relation to the Stewardship Code, a renewed focus on ‘excellence in stewardship’ with greater stress on outcomes and effectiveness, not policy statements. The review further suggested that grave consideration should breathe given to abolishing the Stewardship Code if it remains a ‘driver of boilerplate reporting.’ The Kingman review can breathe accessed here. CMA Publishes Update Paper on Statutory Audit Proposed Reforms to improve Competition On 18 December 2018, the CMA published an update paper outlining issues and proposed legislative reforms to stimulate competition and improve audit quality. The CMA identified a number of issues with the current audit landscape, including:  Companies choosing auditors with whom they beget ‘chemistry’ rather than those that provide arrogate scrutiny.  Limited choice, with the ample Four audit firms conducting 97% of the audits of the biggest companies.  With at least 75% of the revenue of the ample Four coming from non-audit services, auditors’ focus appears skewed. 7 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER In response to these issues, the CMA proposes to:  divide audit from consulting services, either through a structural separation (that is, prohibition of certain firms from providing non-audit services) or an operational split (e.g. the audit business has divide board, chief executive, staff and assets).  interject measures to ensure that audit committees are more accountable and are independent enough to pick the most challenging firms, rather than the cheapest.  Impose a ‘joint audit’ regime, which would require two firms (one of which must breathe a non-Big Four firm) to badge off on the accounts of the audit client. The CMA invites comments on the update paper by 21 January 2019 and the update paper can breathe accessed here. BEIS Announces Independent Review of UK Audit Standards On 18 December 2018, BEIS announced an independent review into the character and effectiveness of the U.K. audit market, which will build on the CMA’s market study and the findings of the Kingman review. Although minute terms of reference and a project arrangement are expected in 2019, it is anticipated that the review will consider:  How the current model can breathe made more efficient, taking into account changing business models and unusual technology.  How far audit can and should evolve to meet the needs of investors and other stakeholders.  How to manage any residual gap between what an audit can and should deliver.  How auditors verify the efficacy of the information they are signing off.  Public expectations from audit. The BEIS announcement can breathe accessed here. FCA Publishes Discussion Paper on the Disclosure of Climate Change Risks by Listed Companies On 15 October 2018, the pecuniary Conduct Authority (FCA) published a discussion paper proposing changes to the disclosure of climate change risks by listed companies. It famed that these changes were likely to become even more significant as the U.K. continues to comply with the Paris Agreement. The discussion paper sets out:  How the different impacts of climate change could repercussion the FCA’s long and short-term objectives.  Some of the opportunities and risks the transition to a low-carbon economy presents in the U.K.’s pecuniary services markets.  The specific action the FCA will remove in the near term to ensure that markets duty well and deliver sterling outcomes for consumers. The FCA invites comments on the discussion paper by 31 January 2019, and the discussion paper can breathe accessed here. FRC Publishes Review of Corporate Governance and Reporting 2017/2018 On 24 October 2018, the FRC published its annual review of corporate governance and reporting. 8 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER The review covers, among other things:  Areas for improvement:  Corporate reporting — disclosure of judgments and estimates and alternative performance measures (APMs) were the most common areas of concern for the FRC.  pecuniary statements — the reporting of significant judgments and estimates, that companies made in the preparation of their accounts require greater attention. As these disclosures enable investors to evaluate the company’s pecuniary position, the FRC was disappointed to observe impoverished disclosure around the assumptions and the estimates on which assumptions were based. Additionally, the FRC identified basic errors and non-compliance in reporting, which, in its view, could beget been averted by implementing arrogate pre-publication review processes.  Strategic reports — companies should pay particular attention to ensuring that the strategic report includes a fair, comprehensive and balanced review of the company’s business and APMs are clearly presented, reconciled to International pecuniary Reporting gauge (IFRS) numbers and explained as required by the European Securities and Markets Authority’s (ESMA’s) Guidelines on APMs, which, in its view, depict best practice.  Corporate governance and stewardship:  Corporate Governance Code — although towering compliance with the U.K. Corporate Governance Code was reported, the FRC warned that this may signal an excessive focus on formulaic compliance. In addition, companies remain reluctant to fully warrant non-compliance with the provisions of the Corporate Governance Code.  Stewardship Code — the FRC will breathe consulting on a revised U.K. Stewardship Code, the main objective of which is to raise the character and quantity of the stewardship activities of investors, and the market expectations of signatories to the Stewardship Code.  Risk reporting and viability statements — many companies’ viability statements are not sufficiently illuminating. It noted, in particular, that although some companies beget advanced their disclosure this year, many soundless did not warrant the processes they had undertaken to prepare their statement, including the stress and scenario testing carried out.  Non-financial reporting — the Government has introduced secondary legislation to require certain companies to Make a statement under section 172 of the Companies Act 2006 (duty to promote the success of the company) describing how the directors beget had regard to the matters set out in section 172. This reflects society’s growing expectation of greater accountability from company directors, their advisors and regulators. As a result, the FRC updated its Guidance on the Strategic Report (including guidance on the unusual section 172 statements) and revised the Corporate Governance Code, including a provision that asks boards to depict in the annual report how the matters set out in section 172 beget been considered in board discussions and determination making.  Brexit — companies are encouraged to provide disclosure that distinguishes between the specific and direct challenges to their business model from broader economic uncertainties. Where there are particular threats, these should breathe clearly identified and management should depict any actions being (or already) taken in mitigation. Adjustments may breathe made in the equilibrium sheet of the company where necessary. While not every companies will require extensive disclosure, where sensitivity or scenario testing indicates significant issues, apposite information and explanations should breathe reflected in the arrogate parts of the annual report and accounts. 9 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER The FRC corporate governance and reporting review can breathe accessed here. FTSE 100 Poll: Stakeholder tryst Mechanisms and Section 172 Disclosures On 25 October 2018, Practical Law published the results of a poll of FTSE 100 companies, summarising how the sampled companies proposed to comply with amendments introduced by the U.K. Corporate Governance Code 2018 (“2018 Code”) and unusual reporting obligations under the Companies (Miscellaneous Reporting) Regulations 2018. The poll questions related primarily to:  The proposed requirement for workforce tryst in board discussions and decision-making.  tryst mechanisms with U.K. employees and suppliers, customers and other stakeholders.  How companies will prepare the statements relating to:  section 172 of the Companies Act 2006;  how the company has engaged with U.K. employees, and how the directors beget had regard to their interests; and  how directors beget had regard to the exigency to foster the company’s business relationships with suppliers, customers and others. Of the 39 respondent companies, zero indicated an aim to nominate a director from the workforce; indeed, 64% had yet to resolve on a way of stakeholder tryst necessary to comply with the 2018 Code. Similarly, many companies had failed to indicate how they would prepare the section 172 and other statements. However, most indicated that the directors’ consideration of the apposite matters would breathe documented in board minutes, which, for most of these companies, would upshot a shift in their current policy on board minutes. FRC Launches Project to Reconsider Purposes of Corporate Reporting On 30 October 2018, the FRC launched a project which will review current pecuniary and non-financial reporting practices, deem what information shareholders and other investors require, the purpose of corporate reporting and the annual report and review the extent to which the annual report serves every stakeholder needs. FRC’s review will extend to unusual technologies by which information may breathe delivered, and may also beget implications for audit and assurance models and performance. The FRC press release can breathe accessed here. FRC Publishes Review of Reporting by Smaller Listed and aim Companies On 6 November 2018, the FRC published a report aimed at encouraging better reporting by allowing users to access the character of management’s decisions. The review covered the following topics:  Alternative performance measures and strategic reports.  Pension disclosures.  Accounting policies, including captious judgments and estimates.  Cash flow statements.  Tax disclosures. 10 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER The FRC famed improvements across every five topics, with more significant improvements seen in the larger companies sampled. However, it also create that there was scope for further improvements; for instance, many companies soundless failed to use their strategic reports to provide a sufficiently comprehensive analysis of their accounts. The FRC report can breathe accessed here. UK Government Publishes Companies (Directors’ Report) and Limited Liability Partnerships (Energy and Carbon Report) Regulations 2018 On 9 November 2018, the Companies (Directors’ Report) and Limited Liability Partnerships (Energy and Carbon Report) Regulations 2018 were published to require additional reporting on emissions, energy consumption and energy efficiency action by quoted companies (that is, companies whose shares beget been included in the Official List, or are officially listed in an EEA state, or are admitted to dealing on either the unusual York Stock Exchange or Nasdaq), large unquoted companies and large LLPs. As a result, the following additional disclosures will breathe required in directors’ reports:  Quoted companies will breathe required to disclose energy use from activities for which the company is answerable and from purchases of electricity, heat, steam or cooling for its own use. They must also depict the principal measures (if any) taken to expand its energy efficiency.  large unquoted companies will breathe required to disclose greenhouse gas emissions (as quoted companies already are), energy use from activities for which the company is answerable and action taken to expand energy efficiency. large LLPs will breathe required to prepare an annual energy and carbon report. If the LLP is a parent LLP and prepares group accounts, the energy and carbon report must breathe a consolidated (group) report. There are exemptions from these disclosure requirements if making the statements would breathe seriously prejudicial to the interests of the company or LLP or if the company or LLP has used a wee amount of energy (40,000 kilowatt hours or less) in the apposite pecuniary year. The regulations will near into compel on 1 April 2019 and beget upshot in respect of pecuniary years beginning on or after 1 April 2019. They can breathe accessed here. Hampton-Alexander Publishes Third Annual Report on Improving Gender equilibrium in FTSE Leadership On 13 November 2018, Hampton-Alexander published its third annual report on improving gender equilibrium in FTSE leadership, assessing the progress that has been made since its predecessor, the Davies Review, and outlining best practices and current challenges. The review includes a target of 33% representation of women on FTSE 350 boards and FTSE 350 Executive Committees and their direct reports by the finish of 2020. The report concludes that, assuming progress continues at the current rate, the FTSE 100 is ‘on track’ to achieve the 33% target for women on boards by 2020. However, substantial improvements are soundless required in other areas of appointments, such as to non- FTSE 100 boards and combined executive committee and direct reports. The report highlights the following key findings:  Executive committee and direct reports:  FTSE 100 — there was an expand in the number of women on the combined executive committee and direct reports to 27%, up from 25.2% in 2017; however, the appointment rate soundless remained heavily skewed 11 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER with around 65% of every newly available roles going to men. In addition, 40 FTSE 100 companies had already met the 33% representation target (or were well on their route to conclude so by 2020).  FTSE 250 — the number of women on the combined executive committee and direct reports increased slightly to 24.9%, up from 24% in 2017. Again, the appointment rate was male-dominated with 78% and 69% of appointments to executive committee and direct reports, respectively, being of men. Around 70 companies (including the 40 FTSE 100 companies mentioned above) had already met the 33% target.  Women on boards:  FTSE 100 — women now Make up 30.2% of FTSE 100 board members, up from 22.8% in 2017.  FTSE 250 — there has also been an expand of female representation on FTSE 250 boards with women now making up 24.9%, up from 22.8% in 2017. The report can breathe accessed here. Glass Lewis Publishes 2019 UK Proxy Guidelines On 14 November 2018, Glass Lewis published its 2019 proxy guidelines. Some of the key revisions to its 2018 guidelines are as follows:  Board skills and diversity — FTSE 100 companies should provide meaningful disclosure in line with developing best rehearse standards. For instance, in accordance with U.K. best practice, FTSE 350 companies should strive for 33% female board representation by 2020.  Board and committee responsiveness — where at least 20% of shareholders vote wayward to the board’s recommendation, the board should demonstrate some flat of responsiveness to address shareholder concerns. Glass Lewis notes that, while the 20% threshold lonesome will not automatically generate a negative recommendation on a future proposal (e.g. against a director nominee), in certain circumstances, committee chairs and members should breathe held accountable for a failure to adequately address shareholder dissent via a recommendation against their re-election where the response to shareholder concerns has fallen below a qualitative threshold.  Environmental and gregarious risk oversight — in instances where it is clear a company has not properly managed or mitigated environmental or gregarious risks to the detriment of shareholder value or when such mismanagement has threatened shareholder value, the guidelines recommend voting against the directors answerable for the oversight of environmental and gregarious risks.  Executive remuneration: realised pay — Glass Lewis will specifically assess the realised pay received by a company’s top executives over at least three years when evaluating the link between pay and company performance. The guidelines also animate companies to disclose pay ratios between the CEO and medial or middling U.K. employees, accompanied by a description of the methodology of the calculation. Pay ratio reporting obligations came into upshot on 1 January 2019, and eligible companies will beget to start reporting pay ratios in 2020. The proxy guidelines can breathe accessed here. ISS Publishes 2019 Proxy Voting Guidelines Updates On 19 November 2018, International Shareholder Services (ISS) issued updates to its current U.K. proxy voting guidelines. The revised guidelines interject changes to, among others: 12 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER  Appointment of external auditors — ISS recommends approving external auditors’ appointment unless there are grave concerns about the effectiveness of the auditors, or current auditors are being replaced without explanation or the lead audit partner(s) has been linked with a significant auditing controversy.  Director elections — voting against individual directors for ‘egregious actions’ related to the director(s)’ service on other boards. It also recommends voting against director re-elections where there beget been repeated absences (defined as less than 75 percent attendance) at meetings that beget not been suitably explained.  Remuneration policy — target bonuses should typically breathe no more than 50 percent of the maximum subsidy potential, with any payout exceeding this circumscribe to breathe supported by a robust explanation.  Remuneration report — where there is a material decline in a company’s partake price, remuneration committees should deem reducing the size of long-term incentive plans (LTIP) awards at the time of vouchsafe and fees payable to non-executive directors (NEDs) should not breathe excessive relative to similarly-sized companies in the very sector.  Approval of a unusual or amended LTIP — shareholders are advised to pay particular attention to dilution limits and, in particular, should ensure that any such limits are in line with the guidelines established by the Investment Association (IA).  gregarious and environmental issues — deem whether there are significant controversies, fines, penalties or litigation associated with the company’s environmental or gregarious practices.  Stock (scrip) dividend alternative — ISS recommends voting on a case-by-case basis on stock (scrip) dividend proposals, taking into account whether the proposal allows for a cash option and if the proposal is in line with market standards. The proxy voting guidelines can breathe accessed here. Investment Association Publishes Principles of Remuneration for 2019 On 22 November 2018, the IA published its principles of remuneration for 2019 against the backdrop of the 2018 Code. The IA famed that its members were frustrated that some companies were not responding to their shareholders’ views in relation to their remuneration policies. In response, the IA issued revised principles of remuneration, including in respect of:  Performance adjustments and clawbacks — remuneration structures should involve specified circumstances in which the company is allowed to Make performance adjustments (i.e. the company forfeits every or piece of an incentive award before it has been vested and paid) and/or initiate clawbacks before awards are made. The unusual principles require remuneration committees to deem the most arrogate trigger events on a case-by-case basis.  Shareholding requirements and post-employment holding periods — the principles beget been updated to contour which shares can matter towards the shareholding guidelines and the expectation of investors on post- employment holding periods.  Pensions — the 2018 Code states that only basic salary should breathe pensionable and pension contribution rates for executive directors, or payments in lieu, should breathe aligned with those available to the workforce. Investors expect unusual executive directors and directors changing roles to breathe appointed on this pension contribution level. The pension contributions for current executive directors should breathe reduced over time to equal the rate received by the majority of the workforce. 13 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER  Restricted shares — the principles provide an update on investor expectations for those companies seeking to interject a restricted partake scheme. A majority of members are willing to deem the introduction of restricted shares. In considering whether to advocate the introduction of a restricted partake scheme, investors will compare the previous pay-out levels to historic company performance and reflect on the flat of reliance they beget with the remuneration committee when assessing any proposals.  Leaver provisions — the principles beget been updated to reflect member expectations and current best practice, for instance, where individuals opt to terminate their employment or they are considered a “bad leaver”, any unvested options or conditional share-based award should normally lapse. The principles of remuneration can breathe accessed here. LSE Issues Public Censure and Fine for Breaches of aim Rules 11 and 31 On 7 December 2018, the London Stock Exchange (LSE) publicly censured and fined Bushveld Minerals Limited (“Bushveld”) £700,000. The fine was subsequently discounted to £490,000 for early settlement. Bushveld, a mineral progress company, was considering a reverse takeover pursuant to aim Rule 14 and had agreed to pay an exclusivity fee (subject to a solicitor’s undertaking) that, in the context of its pecuniary position, constituted a material sum. The LSE create that the Bushveld had breached the aim Rules, in particular:  aim Rule 11, by failing to comply with its disclosure obligations to notify information without leisurely when the undertaking was given. The giving of the undertaking created binding obligations in respect of the exclusivity fee, which was a unusual progress requiring disclosure without delay; and  aim Rule 31, by failing to provide its nominated adviser with information in relation to the undertaking, in circumstances where Bushveld knew or ought to beget known that this was information that the nominated adviser had reasonably requested and required in order to fulfil its obligations to the LSE. The LSE statement can breathe accessed here. GC100 and Investor Group Publish Updated Directors’ Remuneration Reporting Guidance On 10 December 2018, updated Directors’ Remuneration Reporting Guidance was published by the GC100 and Investor Group. The main updates, which largely reflected the additional requirements introduced by the Companies (Miscellaneous Reporting) Requirements 2018, include:  The requirement for companies to provide a summary of any discretion exercised in the award of directors’ remuneration within the committee chair’s annual statement.  Guidance on the unusual requirement for companies to disclose the symmetry of the remuneration that has been apportioned to partake cost appreciation and whether discretion has been exercised as a result of fluctuations in the partake cost value.  Guidance for companies that are required to disclose pay ratio tables on how to prepare consistent reports, structure information and how to figure required statistics.  Guidance on the requirement for companies to disclose, in their remuneration policies, an estimation of maximum director remuneration with partake cost appreciation at 50% in one pecuniary year. The GC100 and Investor Group’s Directors’ Remuneration Reporting Guidance 2018 can breathe create here. 14 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER FRC Publishes Final Wales Corporate Governance Principles for large Private Companies On 10 December 2018, the FRC published the final Wates Corporate Governance Principles for large Private Companies. In publishing the six principles, the FRC is aiming to assist companies in complying with the Companies (Miscellaneous Reporting) Regulations 2018. The six principles covered in the guidance report are:  Principle one — Purpose and leadership: this principle aims to animate companies to beget a well-defined purpose, which should breathe promoted by the board and advocate the company’s long-term success. A company’s purpose should reflect the values of a company and establish expected behaviours and practices which should succor create an effective culture within the workplace.  Principle two — Board composition: this principle aims to ensure companies beget a diversified board composition, led by an effective chair that facilitates meaningful discussion. The size of the board should reflect the size and nature of the company comparatively.  Principle three — Director responsibilities: this principle aims to animate companies to create and sustain a stalwart sense of director accountability to succor foster an effective culture of stewardship and leadership within an organisation. Maintaining stalwart corporate governance practices and transparent polices will succor solidify the relationship between the company’s directors and owners.  Principle four — chance and risk: this principle aims to animate companies to arrangement for long-term growth by finding the equilibrium between preserving company value and taking educated risks where opportunities arise in the marketplace.  Principle five — Remuneration: this principle aims to animate companies to align executive remuneration with performance and overall achievement of the company, as well as reflecting remuneration levels across the all of the organisation to ensure a shared sense of purpose and achievement is reflected by the remuneration award.  Principle six — Stakeholder relationships and engagement: this principle aims to animate companies’ boards to focus on tryst with the wider community and the external repercussion its businesses. Increasing external tryst should breathe considered in view of developing effective relationships with key stakeholders, such as the workforce, customers and suppliers as well as specific industries or sectors the company operates in. The Wates Corporate Governance Principles for large Private Companies can breathe create here. PERG Publishes Report on Conformity with Walker Guidelines and Updated sterling rehearse Reporting by Portfolio Companies On 14 December 2018, the Private Equity Reporting Group (PERG) issued a report assessing the private equity sector’s conformity with the Walker Guidelines (PERG’s 11th Report) and providing recommendations to the British Private Equity and Venture Capital Association (“BVCA”). The report found, among other things, that:  every portfolio companies sampled complied with the disclosure requirements in their annual report compared to 79% in the 2017 PERG Report.  Of the companies reviewed, 81% and 74% published their annual reports and mid-year updates, respectively, on their websites in a timely manner (compared to 78% and 72% in 2017).  There was a drop in non-compliance within the sample as 7% of portfolio companies (all of which were backed by non-BVCA members) had not complied with any of the components of the Walker Guidelines that applied to them compared with 12% in 2017. 15 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER The PERG report can breathe accessed here. FCA Publishes Latest Review on MAR Implementation On 17 December 2018, the FCA published issue 58 of its Market Watch newsletter. This edition focused on the industry-wide review of the implementation of the Market ill-treat Regulation (EU) No 596/2014 (MAR) and covered the following topics:  Compliance with MAR  The FCA famed that the most effective risk-assessments were arrangements and polices that had been modelled on the particular market or specific asset class relating to the company’s business. The monitoring of suspicious transactions was seen as requiring further improvement by the industry in common in order to breathe fully compliant with MAR.  Market soundings  The FCA confirmed that it had not detected any repercussion on the capacity of an issuer to raise finance as a consequence of the market sounding regime implemented by MAR. The FCA highlighted that there remained a stalwart market appetite for using such protections offered by the sounding regime.  Where companies were implementing market sounding arrangements in the workplace, the FCA famed the benefits of appointing specific teams to resolve whether a wall-crossing invitation should breathe accepted or not.  The FCA reiterated the instant of recording communications regarding market soundings, as well as encouraging companies to document their reasons for the response (such as accepting or declining a wall- crossing). Where a sounding has been declined, the FCA warned that inside information may beget soundless been transmitted in responding to the invitation.  Insider lists  The gauge of insider lists is an region in which the industry needs to improve, according to the FCA’s review. The use of permanent insider lists should breathe limited to employees who beget access to inside information at every times. Issue 58 of Market Watch can breathe create here. NEX Exchange Publishes Growth Market Rules for Consultation On 20 December 2018, NEX Exchange published for consultation proposed amendments to the NEX Exchange Growth Market Rules (the “Rules”) in order to comply with the Markets in pecuniary Instruments Directive 2004/39/EC (“MiFID II”). The consultation paper proposes, among others that:  Rules 10 and 75 breathe amended to require that admission documents or prospectuses, regulatory announcements, annual reports and information disclosed in accordance with Article 17 of MAR breathe publicly available for at least five years following publication. The current Rules require an issuer to maintain any such documents for at least one month following publication.  Rule 71, which currently requires issuers to adopt a code of dealings, breathe amended to expressly mention to MAR and to clarify the procedures that issuers, persons discharging managerial responsibilities (PDMRs) and persons closely associated with PDMRs must beget in location to comply with MAR. Briefly, under the proposals, such policies and procedures must: 16 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER  identify when the issuer is in a closed period;  establish procedures by which the issuer will promulgate dealings pursuant to MAR and for maintaining insider lists;  set out circumstances where PDMRs and persons closely associated to them must obtain clearance to deal, the process for obtaining clearance and circumstances when clearance will breathe refused; and  establish procedures by which PDMRs, persons closely associated to them and insiders will notify the issuer and the FCA of any dealing.  Appendix 2 breathe amended to require fast-track applicants from non-SME growth markets to involve a prescribed statement in their admission announcements to the upshot that any historic admission document referred to, and the admission announcement itself, are to breathe treated as the admission document for the purposes of admission, and that it has not been approved or reviewed by NEX Exchange or the FCA. The NEX Exchange consultation paper can breathe accessed here. US DEVELOPMENTS SEC and NYSE/Nasdaq Developments SEC Report Urges Public Companies to deem Cyber Threats in Internal Accounting Controls On 16 October 2018, the U.S. Securities and Exchange Commission (SEC) issued a report on an investigation conducted by the SEC’s Division of Enforcement related to the internal accounting controls at nine public companies that were the victims of cyber fraud. The report draws attention to the growing issue of cyber fraud, highlights what it believes are necessary and best practices in this region and, importantly, cautions every public companies that failure to strengthen internal controls in the pan of the growing risk of cyber fraud could result in an enforcement action in the future. The SEC considered whether the nine companies that were victims of cyber-related frauds violated federal securities laws by failing to beget sufficient internal accounting controls as required under the U.S. Securities Exchange Act, which requires companies to devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that transactions are executed with, or that access to company assets is permitted only with, management’s common or specific authorization. The SEC advises that public companies subject to the internal accounting controls requirements of the U.S. Securities Exchange Act “must calibrate their internal accounting controls to the current risk environment and assess and adjust policies and procedures accordingly.” It also directly indicated its position that cybersecurity falls squarely within the internal control framework, stating “our report emphasizes that every public companies beget obligations to maintain sufficient internal accounting controls and should deem cyber threats when fulfilling those obligations.” The report expressly includes the objective of making “issuers and other market participants vigilant that these cyber-related threats of spoofed or manipulated electronic communications exist and should breathe considered when devising and maintaining a system of internal accounting controls as required by the federal securities laws.” Moreover, the report concludes that the SEC “is not suggesting that every issuer that is the victim of a cyber-related scam is, by extension, in violation of the internal accounting controls requirements of the federal securities laws. What is clear, however, is that internal accounting controls may exigency to breathe reassessed in light of emerging risks, including risks arising from cyber-related frauds.” 17 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER Companies may wish to deem the following:  Cybersecurity Considerations are a Fundamental piece of Internal Controls. The report is a reminder to every companies of the necessity of considering cybersecurity risks when establishing internal control processes and procedures.  One Size Does Not apt All. The cybersecurity measures that companies implement as piece of their internal control framework should breathe tailored to the unique nature of cybersecurity risks as compared to other control risks, and such measures should breathe arrogate to their sort of business and the sort of cybersecurity risk to which they are vulnerable.  Train, Test and Train Again. As described in the report, even the most robust internal control processes cannot breathe effective if those required to ensue them conclude not understand them or ignore them. On an ongoing basis, education, training and testing of the apposite personnel on internal control procedures is critical.  sustain Track of What Happens. Companies should document the types of cybersecurity schemes for which they become subject and how the existing internal control processes worked in the pan of these schemes. This information should breathe regularly reported to management and used as piece of each internal control review.  conclude Not Set It and Forget It. Just as the sort and sophistication of cybersecurity schemes expand, companies should assess and reassess the adequacy of internal control procedures as they learn about unusual threats and vulnerabilities. Their related client publication is available here The SEC’s report is available here. SEC Overhauls Disclosure Requirements for Mining Companies In October 2018, the SEC adopted unusual disclosure rules for companies with material mining operations, which will supersede the existing Industry pilot 7. The unusual rules are intended to bring the SEC’s mining disclosure requirements closer in line with international standards, in particular the Committee for Mineral Reserves International Reporting Standards (CRIRSCO). SEC-registered mining companies (other than Canadian companies using shape 40-F) that beget mining operations (including royalty companies) that are material to the company’s business or pecuniary condition will breathe subject to the unusual rules, which will remove upshot beginning with a company’s first fiscal year beginning on or after 1 January 2021. Key changes from the SEC’s existing rules for mining companies include:  requiring that every disclosure of mineral resources, mineral reserves and material exploration results reported in a company’s registration statements and fitful reports breathe based on, and accurately reflect, information and supporting documentation prepared by a “qualified person;” and  requiring the disclosure of mineral resources (currently prohibited under SEC rules except in limited circumstances) in addition to mineral reserves. Their related client publication is available here. The SEC’s final rule is available here. Amendments to Nasdaq Shareholder Approval Rule for Private Placements On 26 September 2018, the SEC approved amendments to Nasdaq Rule 5635(d), also known as the “20% Rule,” which required shareholder approval prior to the issuance in a private placement of 20% or more of a company’s common stock or 20% or more of its voting power outstanding before the issuance, if the issuance was at a cost less than either market value or reserve value. 18 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER The amended rule creates a unusual defined term for “20% Issuance,” which is defined as a transaction, other than a public offering, involving the sale, issuance or potential issuance by the company of common stock (or securities convertible into or exercisable for common stock), which lonesome or together with sales by officers, directors or substantial shareholders of the company, equals 20% or more of the common stock or 20% or more of the voting power outstanding before the issuance. Under the modified rule, shareholder approval is only required prior to a 20% Issuance at a cost that is less than the “minimum price,” instead of the market value or reserve value. “Minimum price” is defined as “the lower of (i) the closing cost (as reflected on immediately preceding the signing of the binding agreement; or (ii) the middling closing cost of the common stock (as reflected on for the five trading days immediately preceding the signing of the binding agreement.” Nasdaq considered that the term “book value” may not breathe an arrogate measure for requiring shareholder approval. The amended rule no longer requires the use of reserve value as an accounting measure to determine whether shareholder approval is required for a 20% Issuance. These amendments, which only apply to companies listed on the Nasdaq, aim to provide companies with additional flexibility in structuring private placement transactions and maintain dilution protection for shareholders. As with most of the Nasdaq corporate governance standards, foreign private issuers may opt to ensue their home country rehearse in lieu of the Nasdaq rules. However, such companies must disclose non-compliance in their annual report on shape 20-F and are required to submit to Nasdaq a statement from legal counsel certifying that the rehearse is not prohibited under the home country’s laws. The amended rule is available here. Risk Disclosure—SEC Areas of Focus in 2019 In a recent speech, SEC Chairman Jay Clayton emphasized three areas of risk disclosure that the SEC will monitor in the upcoming filing season: (1) Brexit, (2) the transition away from LIBOR in pecuniary contracts and (3) cybersecurity. The following points from this speech provide insight into what the SEC staff may breathe looking for in reviewing companies’ public disclosures, in particular in the “Risk Factors” and “Operating and pecuniary Review and Prospects” sections of shape 20-F and other company reports. Brexit Chairman Clayton stated he believed that the potential repercussion of Brexit has been understated, and indicated that the SEC will focus on disclosure regarding risks and uncertainties faced by SEC reporting companies in connection with the United Kingdom’s exit from the European Union. Chairman Clayton famed that:  he has directed the SEC staff to focus on disclosures companies Make about Brexit; and  in contrast to some existing disclosures that simply status that Brexit presents a risk, he would like to notice more robust disclosure regarding management’s consideration of Brexit and its potential repercussion on companies and their operations. Transition away from LIBOR With LIBOR set to breathe phased out by 2021, the SEC will breathe looking to ensure that companies beget planned and are acting accordingly. 19 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER Specifically, disclosures should address the following:  For companies with floating rate obligations tied to LIBOR, does the documentation provide fallback language?  If so, will it labor in such a situation?  Will consents breathe needed to amend the documentation, and beget market participants considered the rigor and costs associated with obtaining such consents? Cybersecurity risk From a disclosure perspective, key takeaways include:  The instant of sufficiently informing investors of cybersecurity risk.  Ensuring that disclosure controls and procedures are in location for the disclosure of material cybersecurity events, as well as policies that protect against corporate insiders trading in foster of company disclosures of material cyber incidents. For further guidance, the SEC has issued interpretive guidance to assist public companies in preparing their disclosures on cybersecurity risks, which is accessible here. Chairman Jay Clayton’s speech is available here. SEC Goes After Company for Presenting Non-GAAP pecuniary Measures without Giving Equal Prominence to GAAP Measures On 26 December 2018, the SEC issued a cease and desist order and imposed a $100,000 civil penalty on a company for including pecuniary measures that conclude not conform to U.S. GAAP (referred to as “non-GAAP measures”) in earnings releases without giving equal or greater prominence to the most directly comparable GAAP pecuniary measures. Under detail 10(e)(1)(i)(A) of Regulation S-K and other SEC rules and guidance, the presentation of any non-GAAP pecuniary measure in an SEC filing (including, for foreign issuers, non-IFRS pecuniary measures) must breathe accompanied, with equal or greater prominence, by the most directly comparable U.S. GAAP (or IFRS, as applicable) pecuniary measure. In this case, the SEC create that the company included non-GAAP measures in the headlines and in bullet points in the “highlights” section on the first page of its earnings releases without giving equal or greater prominence to the comparable U.S. GAAP pecuniary measures, which were disclosed later in the corpse of the earnings release. This rehearse violated Section 13(a) of the U.S. Securities Exchange Act of 1934 and SEC rules regarding disclosure of non-GAAP measures. As a reminder, the staff of the SEC’s Division of Corporation Finance (“Staff”) has provided guidance on the use of non-GAAP measures in its Compliance and Disclosure Interpretations (C&DIs). The C&DIs provide the following examples where the Staff would deem the disclosure of a non-GAAP measure to breathe more prominent (and therefore in violation of the rule):  Presenting a plenary income statement of non-GAAP measures or a plenary non-GAAP income statement when reconciling non-GAAP measures to the most directly comparable GAAP measures.  Omitting comparable GAAP measures from an earnings release headline or caption that includes non-GAAP measures.  Presenting a non-GAAP measure using a style that emphasizes the non-GAAP measure over the GAAP measure (bold text or a larger font). 20 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER  A non-GAAP measure that precedes the most directly comparable GAAP measure (including in an earnings release headline). The SEC’s enforcement action is available here. Reduced SEC Operations during Federal Government Shutdown On 27 December 2018, the SEC began reduced operations as a result of the federal government shutdown. The SEC is operating with a very limited number of staff members and has stated that it will continue the operation of certain systems, including EDGAR, and will breathe able to “respond to emergency situations involving market integrity and investor protection.” The SEC has announced that it will not deem requests for acceleration of registration statements until further notice. This should not strike companies that are either “well-known seasoned issuers” (WKSIs) or companies that beget an effective shelf registration statement on file with the SEC. Other companies planning to Make registered offerings should consult with their U.S. legal counsel. Any updates to the SEC’s operational status will breathe posted on The SEC Division of Corporation Finance’s announcement regarding operations during the government shutdown and related exam questions mp;As is available here. Shearman Publishes Recent Trends and Patterns in the Enforcement of the FCPA On 2 January 2019, Shearman & Sterling published its biannual FCPA Digest: Recent Trends and Patterns in the Enforcement of the foreign debauch Practices Act, which provides insightful analysis of recent enforcement trends and patterns in the United States, the U.K. and elsewhere, as well as helpful guidance on emerging best practices in foreign debauch Practices Act (FCPA) and global anti-corruption compliance programs. This publication is an invaluable compendium of every FCPA-related developments in 2018, including U.S. foreign bribery proceedings and criminal prosecutions, U.S. Department of Justice (DOJ) foreign bribery civil actions, SEC actions, DOJ policy, ongoing FCPA investigations, pre-FCPA prosecutions and parallel litigation related to the FCPA. As is further minute in the FCPA Enforcement Report, among the highlights from 2018 were:  Seventeen corporate enforcement actions, with total sanctions of approximately $2.9 billion, Make 2018 a fairly typical year in terms of flat of FCPA enforcement activity. Although only four more enforcement actions were brought in 2018 than in 2017, the total assessed sanctions were nearly $900 million higher than in 2017, making the penalties assessed in 2018 the second-highest of any year.  As in recent years, three outlier enforcement actions (Petrobras, Société Générale and PAC) greatly twist the picture, raising the middling corporate sanction for 2018 to $171.1 million, whereas the middling with outliers excluded is significantly less than this figure ($18.3 million). This sort of incompatibility between the true middling and middling excluding outliers is typical: in 2017 the true middling was $151.2 million while the middling excluding outliers was $83.3 million, and in 2016 the true middling was $223.4 million while the middling excluding outliers was $13.2 million.  The median sanction of $9.2 million is down from recent years ($29.2 million in 2017, $14.4 million in 2016 and $13.4 million in 2015). 21 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER  The Second Circuit’s determination in Hoskins has the potential to alter the scope of FCPA prosecutions and alter the investigation process by limiting the number of defendants that are within the jurisdictional grasp of the enforcement authorities.  The DOJ entered into its first coordinated resolution with French authorities in a foreign bribery case, possibly heralding the emergence of France as an vital global anti-corruption authority.  The DOJ continued its recent trend of updating various enforcement policies, announcing: (i) a unusual policy addressing situations where enforcement actions involve “piling on” of fines and penalties in matters involving multiple enforcement authorities; (ii) an updated policy on corporate monitors; and (iii) updates to the policy on cooperation credit originally set forth in the Yates Memo (see below “Noteworthy U.S. Securities Litigation and Enforcement—U.S. Department of Justice Changes Policy on Corporate Cooperation”). In addition, the upshot of the FCPA Corporate Prosecution Policy, announced late in the previous year, was also distinct in 2018’s DOJ matters. The FCPA Digest: Recent Trends and Patterns in the Enforcement of the foreign debauch Practices Act is available here. Shearman Publishes Recent Developments and Trends for the Preparation of shape 20-F On 11 January 2019, Shearman & Sterling published its annual Recent Developments And Trends For The Preparation Of shape 20-F, which provides helpful information for foreign private issuers in the preparation of their annual reports on shape 20-F. The publication discusses recent developments and trends, as well as topics that may breathe areas of focus of the SEC Staff in reviewing shape 20-Fs and other disclosures. Their publication is available here. Noteworthy US Securities Litigation and Enforcement US Department of Justice Changes Policy on Corporate Cooperation The DOJ recently made a significant change to its policy regarding corporate cooperation. Since 2015, that policy has been governed by a memo titled “Individual Accountability for Corporate Wrongdoing” — popularly known as the “Yates Memo” — which stated that “[t]o breathe eligible for any cooperation credit, corporations must provide to the Department every apposite facts about the individuals involved in corporate misconduct.” This policy was incorporated into the United States Attorney’s Manual, which guides DOJ investigations. On 29 November 2018, Deputy Attorney common Rod Rosenstein announced revisions to the Yates Memo policy. Under the revised policy, companies are only required to identify every individuals who were substantially involved in a potential crime in order to receive cooperation credit in criminal investigations. This is a significant change to the Yates Memo policy, which required companies to provide information on every individuals who were involved in potential misconduct, no matter how insubstantial their role. In explaining the DOJ’s policy shift, Mr. Rosenstein indicated a want to focus on individuals who play “significant roles in setting a company on a course of criminal conduct” and that the DOJ wants to “know who authorized the misconduct, and what they knew about it.” Mr. Rosenstein acknowledged that it is not practical to require a company to identify every employee who played any role in alleged illegal schemes that encompass otherwise routine activities of numerous employees, particularly when the government and company want to resolve the matter, but disagree over the scope of misconduct. 22 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER Under the revised Yates Memo policy, companies can now determine which individuals were substantially involved in wrongdoing, rather than providing the DOJ with information on every individual involved, no matter the flat of involvement (although, of course, the government will beget to disagree with where the company draws the line on which employees were “substantially” involved). That being said, the policy shift may not repercussion the scope of internal investigations conducted by companies in response to government investigations, as there are soundless ample incentives for the company to understand the plenary breadth and scope of alleged misconduct. Indeed, a plenary understanding of the scope and facts underpinning potential misconduct will likely breathe necessary to effectively determine which individuals were “substantially” involved and which individuals were not. Furthermore, the revised Yates Memo policy conflicts with the FCPA Corporate Enforcement Policy, which soundless requires the disclosure of “all apposite facts about every individuals involved.” As FCPA investigations are often among the most sprawling and expensive of white collar investigations, this contest will likely breathe a discussion point between the defense bar and the DOJ in the context of ongoing FCPA investigations. US Supreme Court Considers Relationship Between Scheme Liability and fallacious Statement Liability Under Federal Securities Laws On 3 December 2018, the U.S. Supreme Court heard controversy in Lorenzo v. SEC. The case is an appeal of the D.C. Circuit’s ruling that a person who does not Make the alleged fallacious statement can soundless breathe primarily liable for securities fraud. Lorenzo, the petitioner, sent an email to investors containing misrepresentations about key features of a securities offering. There is no dispute that the emails contained fallacious or misleading statements, and that Lorenzo possessed the requisite intent. The apposite portions of the email, however, were drafted by Lorenzo’s boss. Lorenzo merely passed along his boss’ statements at his direction. That said, Lorenzo also compiled the email, sent it out on behalf of the investment banking division (of which he was the head), and personally offered to respond any follow-up questions about it. In his brief before the Court, Lorenzo proposes that the federal securities laws prohibit two distinct categories of fraudulent conduct. First, SEC Rule 10b-5(b), as well as Section 17(a)(2) of the Securities Act prohibit the making of a fallacious statement. Second, SEC Rules 10b-5(a) and (c) and Section 17(a)(1) and (3) of the Securities Act proscribe operating a “device, scheme” or “course of business that would operate as a fraud.” The parties disagree that Lorenzo cannot breathe liable under Rule 10b-5(b) and Section 17(a)(2) because he did not “make” the fallacious statement as that term has been defined by the Court in an earlier determination (Janus Capital Group, Inc. v. First Derivative Traders, 564 U.S. 135 (2011)). At issue is whether Lorenzo nonetheless can breathe create liable for having engaged in fraudulent misconduct. In the Lorenzo determination below, the D.C. Circuit affirmed a finding of liability with respect to Rule 10b-5(a) and (c). The D.C. Circuit agreed with the determination below that Lorenzo’s “active role in producing and sending the emails” constituted being “engaged in a fraudulent act [or] employ[ing] a fraudulent device” for purposes of liability” under Rules 10b-5(a) and (c) and Section 17(a)(1). Further, the D.C. Circuit create that the three components of Rule 10b-5 are not mutually exclusive. Instead, they “may overlap in certain respects.” For this intuition the D.C. Circuit concluded that there is nothing incongruous in finding that Lorenzo did not “make” any fallacious statements under Rule 10b-5(b), but nonetheless engaged in the fraudulent act of preparing and disseminating statements under Rules 10b-5(a) and (c). Lorenzo’s brief before the Court argues that finding Lorenzo liable for the ministerial conduct of facilitating the preparation of others’ statements would undo the Court’s Janus determination and swallow the bright-line test between primary and secondary liability. The government responds that Lorenzo is impermissibly seeking to 23 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER re-litigate the facts of the case, and that Janus never suggests that fraudulent conduct could not involve misstatements even in the absence of liability for making those misstatements. As to primary and secondary liability, the government argues that Lorenzo’s conduct is a primary violation, so that distinction is not implicated here. At oral controversy before the Court, the Justices focused heavily on the extent of Lorenzo’s conduct as distinguished from the mechanical making of the statements. Lorenzo’s counsel highlighted his position that “sending the email does not mount to the flat of using or employing a fraudulent device.” Justice Alito, as well as the four dissenting justices in Janus, expressed doubt as to this view — Justice Alito went so far as to status that Lorenzo “did the act that is described in [Rule 10(b)-5(c)].” Similarly, Justice Kagan suggested that Section 10(b) is a “belt-and-suspenders statute” where there is clear overlap between one section and the other, implying that scheme liability could breathe found. Justice Gorsuch articulated an contrary view, noting that if “the only fallacious act, the only actus reus, was a statement, and he didn’t Make it, then what?” A determination is expected in the Spring 2019 term. The US Supreme Court Will Analyse Mental status gauge for Claims Alleging Misstatements in Connection with Tender Offers On 4 January 2019, the U.S. Supreme Court agreed to deem whether negligence or scienter is the arrogate mental status gauge for misstatements or omissions made in connection with a tender offer. The case is Emulex Corp. v. Varjabedian. The determination from the Ninth Circuit below held, in express contest with five other circuit court decisions, that mere negligence suffices to advocate a private privilege of action arising under Section 14(e) of the Exchange Act. The Second, Third, Fifth, Sixth and Eleventh Circuits beget held that 14(e) claims require a higher showing of scienter, or intent to defraud. The Ninth Circuit’s determination stems from the 2015 acquisition of Emulex by Avago Technologies Wireless Manufacturing pursuant to an all-cash tender offer. After the closing, investors filed a class action alleging that Emulex had failed to disclose in its recommendation statement on Schedule 14D-9 one of six pecuniary analyses performed by Emulex’s pecuniary advisor in delivering its fairness belief to the Emulex board. The omitted analysis create that the merger premium was impartial and within the typical range, but fell below the middling for comparable transactions in the industry. After private plaintiffs brought putative class action claims arising under Section 14(e), the district court dismissed the complaint for failure to adequately plead a stalwart inference of scienter. On appeal, a Ninth Circuit panel reversed the dismissal and remanded for reconsideration under a negligence standard. The Ninth Circuit famed that Section 14(e) prohibits (1) making untrue statements or omissions of material fact, or (2) engaging in fraudulent or deceptive acts. By focusing on the use of the word “or,” the court create that the two components of Section 14(e) created two different offenses. Because the former does not accommodate the words “fraudulent,” “deceptive,” or “manipulative,” which beget been held to advocate a scienter standard, the Ninth Circuit concluded that misstatement liability could breathe proven based upon a showing of mere negligence. The five other circuits that beget considered this issue beget held that claims under Section 14(e) require a finding of scienter because of its “shared text” with SEC Rule 10b-5 (the primary basis for federal securities fraud liability, which has a well-established scienter requirement. As the petition notes, because words are known by the company they sustain (Yates v. U.S., 135 S. Ct. 1074, 1085 (2015)), it makes sense to read acceptation into words like “deceptive” and “manipulative” by applying them to the entire statute, not reading them out because of the word “or.” The Ninth Circuit rejected this rationale and create that standards of Rule 10b-5 conclude not apply to Section 14(e) because one is an SEC rule, and the other is a statute. 24 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER The Ninth Circuit’s determination is an outlier and, if left undisturbed, would Make Ninth Circuit lower courts a magnet for this sort of litigation. While the Court could circumscribe its determination to the narrow issue of scienter versus negligence for 14(e) claims, it also could use Emulex as a vehicle to opine on the standards for Section 14 claims as a all (which also involve claims based on fallacious statements in proxy solicitations). Indeed, an amicus brief filed in advocate of the petitioner by the U.S. Chamber of Commerce argues that the Court should address the threshold issue of whether a private privilege of action exists under Section 14 at every (despite the fact that many lower courts beget create that it does). Briefs will breathe filed in Emulex in the coming months, and oral controversy likely will breathe held in Spring 2019. SEC Enforcement Releases Its Annual Report On 2 November 2018, the Division of Enforcement of the SEC released its annual report setting forth enforcement-related statistics and its key initiatives. The report covers the fiscal year ended 30 September 2018. Notably, on the statistics side, the annual number of SEC enforcement actions increased by approximately 9 percent (from 754 actions in FY 2017 to 821 actions in FY 2018). Of those actions, 490 were “stand alone” actions brought in federal court or as administrative proceedings, 210 were follow-on proceedings seeking bars and suspensions based on the outcome of other actions and 121 were proceedings to deregister public companies — typically microcap issuers — that were delinquent in their regulatory filings. The penalties imposed by the SEC increased by approximately 73 percent (from $832 million in FY 2017 to $1.439 billion in FY 2018), but the disgorgement of profits declined by approximately 15 percent (from $2.957 billion in FY 2017 to $2.506 billion in FY 2018). The Report notes that a determination by the U.S. Supreme Court in 2017 holding that SEC claims for disgorgement are subject to a five-year statute of limitations “continues to beget a significant upshot on the Commission’s efforts to obtain disgorgement.” As to the 490 “stand alone” actions brought by the SEC in FY 2018, it has increased the number of actions related to securities offerings (25%), investment advisor issues (22%), broker-dealer misconduct (13%) and insider trading (10%). While the number of actions related to issuer reporting (16%) and market manipulation (7%) remain significant, their numbers decreased from FY 2017. A large majority of the 490 “stand alone” actions (72%) involved charges against one or more individuals. The report points out that these individuals “include senior officers at prominent issuers and other public figures, including the CEOs of Tesla Inc. and Theranos Inc., the former CEO of Seaworld Entertainment Inc., a U.S. Congressman, the former CEOs and CFOs of Walgreens Boots Alliance Inc. and Rio Tinto p.l.c., and a professional football player.” In terms of the key enforcement initiatives, the report describes three areas: protecting retail investors, combating cyber threats and misconduct between investment professionals and clients. During FY 2018, the SEC formed a Retail Strategy stint compel that uses data analytics to generate leads for enforcement actions. The report states that this lead generation is focused on disclosures concerning fees and expenses and conflicts of interest for managed accounts, market manipulations, fraud involving unregistered offerings and trading suspensions related to companies that purport to breathe in the cryptocurrency and distributed ledger technology space. The report also details increased activity by the Cyber Unit. In FY 2018, the SEC brought 20 stand-alone cases involving cyber-related misconduct (including initial coin offerings, digital assets and the disclosure of cyber-related risks and incidents) and by the finish of the year had more than 225 ongoing cyber-related investigations. Finally, the SEC has formed a partake Class Selection Disclosure Initiative to address disclosure failures relating to marketing and distribution fees paid by investment advisory clients. The Initiative is a willful program for investment advisers to self-report to the SEC their failures to disclose their pecuniary conflicts of interest relating to compensation they received via fees. 25 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER Snap Securities Class Action Leads to Government Subpoenas While an investigation by the SEC or the DOJ often can lead to private securities litigation, sometimes it happens the other route around. In May 2017, Snap, Inc. (the gregarious media company that runs Snapchat), was sued by its investors in a securities class action alleging that its pre-IPO disclosures failed to accurately disclose its reported user growth, including the competitive repercussion of Instagram. In June 2018, the court denied the motion to cashier and the case is in discovery. In November 2018, the U.S. government made a sealed filing in the securities class action. In response to press inquiries about the filing, Snap revealed that it has received subpoenas from the SEC and DOJ (along with other information requests) that related to the very subject matter as the litigation. Snap also stated that it has responded to these subpoenas and intends to continue cooperating with the government. The private plaintiffs will breathe pleased to beget this potential affirmation of their theory of securities law violations. Aveo CFO create Liable for Securities Fraud for Failing to show Investors about Regulatory Developments In a closely-watched trial, the former CFO of Aveo Pharmaceuticals has been create liable for federal securities fraud. On 20 November 2018, a jury in the U.S. District Court for Massachusetts create that David Johnston failed to adequately disclose the company’s interactions with the Food and Drug Administration (FDA) over a kidney-cancer drug, called tivozanib. Aveo began clinical trials of tivozanib in 2010 and met with the FDA in May 2012 to argue those crucible results ahead of seeking FDA approval of the drug. In those meetings, the FDA expressed concerns about survival rates of patients on tivozanib and recommended that Aveo undertake a second clinical crucible of the drug, but in subsequent public disclosures the company did not disclose that another crucible could breathe necessary. In 2016, the SEC brought a civil action against Aveo and certain of its executives. Aveo and the other executives settled the matter, leaving Johnston as the only defendant to evanesce to trial. At his trial, Johnston argued that as the CFO, he relied upon the company’s internal processes and advisors in deciding what to disclose about the FDA interactions. The advisors included in-house and external lawyers who allegedly approved the omission of the FDA’s recommendation for a second trial. These communications with the company’s attorneys were privileged, however, and the privilege was held by the company. As a result, the jury did not hear any testimony concerning the advice the attorneys provided, and the SEC questioned whether Johnston had provided the attorneys with sufficient information about the FDA interactions. In the end, Johnston was create liable after only four hours of jury deliberation. The Aveo/Johnston case illustrates (a) the aggressiveness of the SEC in bringing disclosure actions, including against corporate executives who conclude not beget any particular expertise in the subject matter being disclosed, and (b) the instant of well-documented corporate disclosure procedures. ITALIAN DEVELOPMENTS Consob Increases Threshold for Offerings Exempt from the obligation to Publish a Prospectus to €8 Million On 9 November 2018, the Italian Securities and Exchange Commission (Commissione Nazionale per le Società e la Borsa, “CONSOB”) issued resolution No. 20686 (the “Resolution No. 20686”) amending CONSOB Regulation No. 11971 of 14 May 1999, as subsequently amended and supplemented (the “Regulation on Issuers”) in order to implement the EU Prospectus Regulation. As of 21 July 2018, certain provisions of the Prospectus Regulation became directly applicable, in particular those requiring each country to determine the maximum threshold value for offerings exempted from the obligation to publish a prospectus relating to the pecuniary instruments offered. 26 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER After the customary consultation process, CONSOB resolved to remove handicap of the maximum threshold value allowed by Prospectus Regulation (i.e., €8 million, increased from €5 million) for offerings of the very issuer in a 12-month period, thus expanding the compass of offerings that would profit from the exemption to publish a prospectus. CONSOB also introduced certain additional disclosure obligations for issuers that use this exemption, which must provide, inter alia, an estimation of the working capital, net of the proceeds of the transaction, as well as information relating to the funding required to meet the pecuniary needs and the use of the proceeds. CONSOB stated that this expand in the threshold should allow companies, especially those listed on SME growth markets, to raise more funding, while ensuring the very flat of protection to investors as that provided under the previous rules, considering that (i) the expand is not apposite from a quantitative point of view; (ii) the European as well as the Italian provisions require that plenary disclosure must breathe made to investors; and (iii) CONSOB has the authority to supervise and sanction issuers also with respect to offerings benefitting from this exemption. Borsa Italiana Amends Rules of the Market and the Related Instructions to involve unusual Central Counterparties Operating on MTA and ETF Plus Markets Borsa Italiana S.p.A., the managing company of the Italian stock exchange (“Borsa Italiana”), amended its Rules of the Market and the related Instructions (new version entered in compel on 3 December 2018), in order to involve other central counterparties besides Cassa di Compesanzione e Garanzia — the market’s default central counterparty, for the clearing and guarantee of contracts. Trading members of such markets will therefore beget to indicate their preferred central counterparty. HONG KONG DEVELOPMENTS SFC Sets Out unusual Regulatory Approach for Virtual Assets On 1 November, 2018, the Securities and Futures Commission of Hong Kong (SFC) issued a statement (the “Statement”), which sets out a unusual approach aiming to regulate virtual asset portfolio managers and distributors of virtual asset funds and a conceptual framework for the potential regulation of virtual asset trading platforms. In an accompanying circular (the “Circular”), the SFC provided minute guidance and reminded firms that dispense funds investing in virtual assets of the registration and regulatory requirements. The Statement The SFC warns investors of the significant risks of virtual assets, some of which are inherent in the nature and characteristics of virtual assets while others arise from the operations of platforms or portfolio managers. In particular, the SFC focuses the regulatory attention on the following risks: (i) valuation, volatility and liquidity; (ii) accounting and auditing; (iii) cybersecurity and safe custody of assets; (iv) market integrity; (v) risk of money laundering and terrorist financing; (vi) conflicts of interest; and (vii) fraud. Under the existing regulatory regime, virtual assets that descend into the definition of “securities” or “futures contracts” under the Securities and Futures Ordinance and activities related to such virtual assets are subject to regulation by the SFC. Firms must also comply with certain notification requirements if they intend to provide trading and asset management services involving crypto-assets. In addition, firms engaging in the distribution of funds that invest in virtual assets, regardless of whether such assets amount to “securities” or “futures contracts,” exigency to breathe licensed by or registered with the SFC. However, since some virtual assets may not constitute “securities” or “futures contract,” many investors are soundless left unprotected if they trade in virtual assets through unregulated trading platforms or invest in virtual asset portfolios that are managed by unregulated portfolio managers. 27 GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER To address such regulatory concerns, the SFC plans to bring a significant portion of virtual asset portfolio management activities into its regulatory net through the following means.  Scope of Supervision. The expanded scope of supervision of the SFC catches (i) persons managing funds which solely invest in virtual assets that conclude not constitute “securities” or “futures contracts” and dispense the very in Hong Kong; (ii) persons that are licensed or are to breathe licensed for sort 9 regulated activity (asset management) for managing portfolios in “securities,” “futures contracts” or both; and (iii) persons distributing funds that invest (solely or partially) in virtual assets in Hong Kong.  Regulatory Standards. With respect to virtual asset portfolio managers under (i) and (ii) above, a set of gauge terms and conditions which reflect the essence of the existing regulatory requirements under the SFC will breathe imposed on them as licensing conditions with certain variations to better address the risks associated with virtual assets. Some of the key terms and conditions are available here. Virtual asset fund distributors under (iii) above will breathe subject to further guidance on the expected standards and practices as provided in the Circular.  Licensing process. License applicants and licensed corporations are required to inform the SFC if they are managing or planning to manage portfolios that invest in virtual assets so that the SFC can assess their business activities and resolve the next steps, including imposing the abovementioned gauge terms and conditions, rejecting licensing applications and unwinding existing virtual assets portfolios. In addition to regulating virtual asset fund managers and distributors, the SFC also sets out a conceptual framework for the potential regulation of virtual asset trading platforms. At the current stage, the SFC proposes to labor with interested platform operators by placing them in a regulatory sandbox to explore whether such platforms are suitable for regulation. Factors to breathe considered involve the adequacy and effectiveness of the proposed conceptual framework, capacity to comply with the terms and conditions and investors’ interests, as well as local market and international regulatory developments. Details of the conceptual framework are available here. The Statement is available here. The Circular The SFC reminds persons licensed or registered for sort 1 regulated activity (dealing in securities) or sort 9 regulated activity (asset management) that are engaged in distributing virtual asset funds under their management about the existing regulatory requirements and provides guidance on the expected standards and practices in relation to the such distribution. Distributions of virtual asset funds, regardless of whether they are authorized by the SFC, are subject to the regulation of the SFC. However, the Circular further sets out the following additional requirements for firms which dispense non-SFC authorized funds that beget a stated investment objective to invest in virtual assets or intend to invest or beget invested more than 10% of their Gross asset value in virtual assets directly or indirectly: (i) selling restrictions and concentration assessments; (ii) due diligence on virtual asset funds not authorised by the SFC; and (iii) information for clients. The Circular is available here. rehearse GROUP CLIENT PUBLICATION GOVERNANCE & SECURITIES LAW FOCUS NEWSLETTER CONTACTS GEORGE ANHANG Counsel Washington D.C. george.anhang MATTHEW BERSANI colleague Hong Kong matthew.bersani NICOLAS BOMBRUN colleague Paris nicolas.bombrun SUSANNA CHARLWOOD colleague London susanna.charlwood TOBIA CROFF colleague Milan tobia.croff DAVID DIXTER colleague London david.dixter THOMAS DONEGAN colleague London thomas.donegan DOMENICO FANUELE colleague Rome dfanuele FABIO FAUCEGLIA colleague Milan fabio.fauceglia JEROME S. FORTINSKY colleague unusual York jfortinsky JONATHAN HANDYSIDE Counsel London jonathan.handyside MASAHISA IKEDA colleague Tokyo mikeda GUILLAUME ISAUTIER colleague Paris gisautier GEORGE KARAFOTIAS colleague unusual York gkarafotias KYUNGWON (WON) LEE colleague Hong Kong kyungwon.lee JASON LEHNER colleague Toronto jlehner HERVÉ LETRÉGUILLY colleague Paris hletreguilly LAURENCE LEVY colleague London laurence.levy DOREEN LILIENFELD colleague unusual York dlilienfeld JOHN MADDEN Of Counsel unusual York jmadden MEHRAN MASSIH Counsel London mmassih JACQUES MCCHESNEY colleague London jacques.mcchesney CAITRIN MCKIERNAN Associate Hong Kong caitrin.mckiernan CYRILLE NIEDZIELSKI Of Counsel Paris cniedzielski MANUEL A. ORILLAC colleague Houston morillac VANESSA POON Counsel HONG KONG vanessa.poon BARNEY REYNOLDS colleague London barney.reynolds LYLE ROBERTS colleague Washington D.C. lyle.roberts DANIEL SACHS Associate Washington D.C. daniel.sachs MICHAEL SCARGILL Counsel London michael.scargill ANDREW SCHLEIDER colleague Singapore aschleider ANTONIA E. STOLPER colleague unusual York astolper DAVID ST-ONGE Associate Paris PAWEL J. SZAJA colleague London pawel.szaja SAMI TOUTOUNJI colleague Paris stoutounji ABU DHABI • AUSTIN • BEIJING • BRUSSELS • DUBAI • FRANKFURT • HONG KONG • HOUSTON • LONDON • MENLO PARK • MILAN unusual YORK • PARIS • RIYADH* • ROME • SAN FRANCISCO • SÃO PAULO • SHANGHAI • SINGAPORE • TOKYO • TORONTO • WASHINGTON, DC This memorandum is intended only as a common discussion of these issues. It should not breathe regarded as legal advice. They would breathe pleased to provide additional details or advice about specific situations if desired. 9 APPOLD STREET | LONDON | U.K. | EC2A 2AP Copyright © 2019 Shearman & Sterling LLP. Shearman & Sterling LLP is a limited liability partnership organized under the laws of the status of Delaware, with an affiliated limited liability partnership organized for the rehearse of law in the United Kingdom and Italy and an affiliated partnership organized for the rehearse of law in Hong Kong. Attorney Advertising — Prior results conclude not guarantee a similar outcome. *Dr. Sultan Almasoud & Partners in association with Shearman & Sterling LLP

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