United States: Nasdaq's Blueprint To Revitalize U.S. Capital Markets

In what has proven to be a busy spring for various groups1 to assess the vitality of the financial markets, Nasdaq decided to join the fray as well. In early May, Nasdaq released its blueprint for revitalizing the U.S. capital markets by addressing several critically needed reforms with the hope that it sparks a dialogue – and action – among investors, public and private companies, industry groups, and policymakers.

Nasdaq's vision is rooted in the belief that robust public markets are the fuel that ignites America's economic engine and wealth creation. According to Nasdaq, companies list on U.S. stock exchanges to access a steady, dependable stream of capital to grow and create jobs, and investors choose our markets because they are the world's most trusted venues for long-term wealth creation. Unfortunately, however, Nasdaq believes that many companies are questioning whether the benefits of being a public company are worth the burdens after the U.S. has continued to add layer after layer of obligation. Nasdaq reports that, in recent years, a growing number of companies have chosen to remain private, and some public companies are deciding to stay private.

Nasdaq recognizes, however, that the market dynamics driving opposition to the public markets are complex. These include concerns about (1) shareholder activists, (2) frivolous shareholder litigation, (3) pressure to prioritize short-term returns over long-term strategic growth, and (4) burdensome costs and frustrations with the proxy process as well as onerous disclosure requirements, to name a few. Once public, companies – particularly smaller ones – sometimes find that the cost of accessing equity capital to fund growth can be expensive, given the distributed nature of trading across markets and trading venues today. Therefore, they seek private sources of capital, which, in today's environment, is abundantly available for many dynamic companies.

According to Nasdaq, the case for strong public markets is overwhelming. Since 1970, 92 percent of job creation has occurred after an IPO. Nasdaq notes that the vast majority of Americans are invested in and count on public markets, either directly through stock ownership or through pension funds, mutual funds and individual retirement accounts. Additionally, with more investors choosing index strategies to meet their investment needs, funds and exchange-traded product providers are relying upon a deep and healthy selection of public companies across industries and at various stages of maturity and growth to provide investors a wide range of index strategies with strong return profiles. Investor access to vibrant and growing public capital markets is a critical driver of wealth creation and financial security for the American people.

Today, pension funds are slowly shrinking and being replaced with defined contribution retirement plans (typically 401(k) plans) as the core savings vehicles for average American workers. Additionally, pension plans allocate only a small percentage of their overall portfolios to private alternative funds because the underlying investments are very illiquid and difficult to value. Defined contribution plans are even more limited in their ability to invest in private securities and private equity funds due to the lack of liquidity and valuation transparency. Therefore, for the foreseeable future, pension funds and most mutual funds serving average investors will continue to rely heavily on the public markets to supply investment opportunities that will help the funds reach their return thresholds. It will get harder and harder to achieve such return thresholds if there are fewer growth-oriented companies entering the public markets.

To address these concerns, Nasdaq provided concrete solutions across three topic areas in its blueprint:

For your convenience, a more detailed summary of each topic appears below.

Reconstructing the Regulatory Framework

Over time, an inconsistent regulatory patchwork has clearly developed that under-regulates some areas and over-regulates others. Public companies – and those contemplating an entrance into public markets – are increasingly hamstrung by the complexity and cost of navigating this regulatory maze, and investors are harmed by both the impact of these costs on companies that do go public and the shrinking investment options as more companies avoid going public.

A. Reform the Proxy Proposal Process

While proxy voting can be an important tool to raise legitimate concerns, Nasdaq believes it is far too often used for unhelpful purposes that cause a nuisance and significant financial strain on companies, particularly smaller ones. As a result, Nasdaq proposes a number of simple, commonsense reforms to protect the shareholder voice while filtering out needless and costly annoyances.

1. Raise the minimum ownership amount and holding period to ensure proposals have meaningful shareholder backing

Nasdaq suggests deleting the meaningless dollar threshold (currently $2,000) and instead require a proposing shareholder to hold at least 1 percent of the company's securities entitled to vote, and increase the holding period to three years. This would ensure that shareholder proposals representing the views of a meaningful percentage of a company's long-term owners are considered at shareholder meetings.

2. Update the SEC process for removing repetitive, unsuccessful proposals from proxies

Nasdaq believes Congress should significantly increase the shareholder support that a proxy proposal must receive before the same proposal can be reintroduced at future meetings. This concept was recently introduced in the Financial CHOICE Act of 2017. In addition, Nasdaq recommends that the SEC study the categories of topics suitable for shareholder proxies and modify its rules accordingly to ensure that proposals considered at annual meetings are properly placed before shareholders, are meaningful to the business of the company and are not related to ordinary business matters.

3. Create transparency and fairness in the proxy advisory industry

Nasdaq suggests that the SEC require proxy advisory firms to explain their criteria or provide companies a means to question analysis or even correct factual errors. In addition, these firms should be required to disclose whether they have a financial relationship or ownership stake in the companies on which they report.

B. Reduce the Burden of Corporate Disclosure

Nasdaq believes it is time to move away from a one-size-fits-all approach to corporate disclosure. Transparency is critical to healthy markets, but technology and markets have evolved to a point where a reasonable degree of flexibility can allow for disclosure requirements that are shareholder-friendly while reducing the burden on companies.

1. Offer flexibility on quarterly reporting

Nasdaq promotes amending the quarterly reporting process to provide for more flexibility. For example, Nasdaq believes that companies looking to encourage long-termism and reduce costs would benefit from the flexibility to provide full reports semiannually, as has been done in the United Kingdom. Under this approach, companies would be able to update key metrics for any material changes between mandated reports using existing disclosure methods.

2. Streamline quarterly reporting obligations for small- and medium-growth companies

As a practical matter, Nasdaq believes most investors view an earnings press release as a company's actual quarterly report on Form 10-Q. Yet, despite this view, companies are still required to file a more robust Form 10-Q with the SEC, which is complex, time-consuming, and provides little additional information that cannot be found in the earnings press release. By establishing simple guidelines, the earnings release can replace the Form 10-Q entirely for companies that prefer to report information quarterly, aligning regulatory and shareholder interests.

3. Expand classifications for disclosure relief

Current SEC rules permit certain types of companies, including emerging growth companies, smaller reporting companies and non-accelerated filers, to submit disclosure reports that are robust and transparent but far less burdensome than those required for more mature companies. However, few companies benefit from the spirit of these carve-outs because the definitions to qualify as an "emerging growth company," "smaller reporting company" or "non-accelerated filer" are narrow and, in some cases, limited in duration. Nasdaq believes the carve-outs should be expanded and simplified by:

  • Expanding the JOBS Act's "test the waters" provisions, allowing emerging growth companies to communicate with certain potential investors and file their registration statement confidentially, to all companies and all capital-raising transactions
  • Raising the revenue cap to qualify as an emerging growth company from the current $1 billion (subject to inflation adjustment every five years) to $1.5 billion
  • Deleting the current phaseout of emerging growth company status five years after such company's IPO
  • Harmonizing the definitions for "smaller reporting company" and "non-accelerated filer" with that of "emerging growth company" to avoid a patchwork of inconsistent and illogical exemptions

These suggestions dovetail with the SEC's Disclosure Effectiveness Initiative to simplify disclosure by stripping out unnecessary and duplicative requirements, thereby creating less onerous disclosure requirements for companies and more meaningful disclosure for investors. Similarly, Nasdaq believes that the SEC should consider ways to streamline the offering process by giving all public companies the opportunity to raise capital using simplified and faster "shelf registrations" and reducing the requirements for supplemental forms and other bureaucracy associated with capital raising that serve no meaningful purpose.

4. Roll back politically motivated disclosure requirements

Nasdaq believes there should be a clear distinction between disclosure of material information that investors require to evaluate a company's financial performance and economic prospects and those that are motivated by social and political causes or otherwise are not relevant to a company's bottom line. As such, Nasdaq supports the elimination of the currently required reporting of conflicts minerals and executive pay ratio, along with a comprehensive review of all disclosure requirements and the elimination of those that do not have a clear connection with a company's financial performance, practices and outlook.

C. Litigation Reform

The burden of having to defend meritless class action lawsuits is repeatedly cited by private companies as a major reason why they have not become public reporting companies. Given the trend of third-party investors financing these cases, Nasdaq expects that the number of cases filed will only increase, along with the burden placed on public companies, unless litigation reform is prioritized. The following sets forth the areas Nasdaq believes are necessary to reduce the burden of meritless class actions on public reporting companies.

1. Support legislation currently before Congress that addresses litigation reform

Nasdaq supports legislation reform that would, among other things, (1) ease the standard for imposing sanctions on lawyers bringing frivolous lawsuits, (2) tighten the requirements for granting class certification, (3) facilitate interlocutory appeal of decisions to grant class certification, (4) require disclosure of third-party financing of litigation and (5) limit plaintiff legal fees.

2. Expand the scope of provisions under congressional consideration

Nasdaq also encourages Congress to consider additional provisions that would (1) allow interlocutory appeals from the denial of a motion to dismiss; (2) allow a plaintiff to amend its complaint only once; (3) further codify the standards for pleading with respect to scienter and loss causation, and clarify the exclusive nature of federal jurisdiction over securities claims; (4) require proof of actual knowledge of material misstatements or omissions (as opposed to mere recklessness); and (5) make SEC findings in enforcement consent decrees inadmissible in private litigation.

3. Study longer-term comprehensive reform

Given the significant costs of the current litigation system and questions about whom the system actually benefits, Nasdaq advocates for more comprehensive changes.

D. Tax Reform

Finally, Nasdaq advocates for reform of U.S. tax policies that will promote, rather than discourage, saving and investment in the U.S. economy. Among other items, Nasdaq suggests expanding the tax exemption on the sale of small-business stock to the secondary market by revising Internal Revenue Code Section 1202 to include all qualified domestic corporations. Nasdaq also recommends shortening the ownership tenure requirement from five years to three years, and increasing the maximum asset threshold from $50 million to $100 million. Nasdaq believes this shareholder-friendly move would enable smaller companies to access the public markets. In addition, Nasdaq supports complete elimination of the double taxation of corporate profits through a 100 percent dividends received deduction for holders of qualified domestic corporate stock.

Modernizing Financial Market Structure

Nasdaq believes that the fundamental structure that underpins our financial markets has not evolved to benefit all market segments equally. Accordingly, while efficient markets benefit both issuers and investors, inefficient markets can choke the flow of capital, become a drain on growth and block companies – particularly small- and medium-growth companies – from reaching their fullest potential. As such, Nasdaq proposes new and improved frameworks that account for the different needs among market participants and the fluid nature of our markets.

A. Strengthen Markets for Smaller Companies

Nasdaq believes concentrating disaggregated liquidity onto a single stock exchange, with limited exceptions, will allow investors to better source liquidity, increase price transparency, and result in less dramatic price swings for small- and medium-growth companies and their investors.

B. Give Companies a Choice to Consolidate Liquidity and Improve Trading Quality

By creating a market for smaller companies that is voluntary for companies to join and that is largely exempt from the unlisted trading privileges (UTP) obligations, subject to key exclusions, Nasdaq can concentrate liquidity to reduce volatility and improve the trading experience. Eliminating UTP for small- and medium-growth companies would reduce the number of exchanges authorized to trade them, and, more important, it would allow for liquidity to develop and for supply and demand to find one another.

In addition, Nasdaq proposes the following changes: (1) deploy intelligent tick sizes for small- and medium-growth companies, (2) cultivate innovative market-level solutions that improve the trading of small- and medium-growth companies, (3) implement an intelligent rebate/fee structure that promotes liquidity and avoids market distortions, and (4) ensure fair and reasonable pricing for participants in the context of limiting exchange competition.

Promoting Long-Term Views of Value Creation

Nasdaq believes that in recent years, a variety of market dynamics have started to disfavor long-term investors and long-term corporate strategies. Market participants and the investing community have become less patient with corporate management and boards of directors, as well as their overarching strategies to deliver shareholder returns.

This results in private companies being forced to weigh the capital-raising benefits of public markets with the risks that they will be unable to pursue productive long-term strategies. The trend away from long-term thinking is also harmful to investors with long-term outlooks and to the broader American economy because sustained job creation and economic output depend on a company's ability to measure performance not in quarters or fiscal years but in decades.

In particular, Nasdaq advocates for reforms that help public companies plan and execute for long-term growth, job creation and innovation, and ensure that long-term investors have an equal opportunity to participate in wealth creation with those investors who focus on speed and market timing.

A. Industry Dialogue to Address Concerns Regarding Activist Investors

There are many dimensions to the issue of activist investing, and Nasdaq is a strong believer in the capital markets ecosystem, exchanges, issuers and investors coming together to develop a comprehensive solution to this concern. For instance, Nasdaq strongly supports, and has built into its listing standards, the need for greater transparency around arrangements by which activist investors tie director compensation to a company's stock price, which creates the potential for conflicts between the activist's and the company's best interest. Nasdaq is a firm believer that this dialogue should focus on several key issues that promote transparency so that investors and activists are on a level playing field when engaging with a company.

B. Equalize Short Interest Transparency

U.S. securities laws require certain investors to disclose their long positions 45 days after the end of each quarter and require institutions to make disclosure within 10 days after their position reaches or exceeds 5 percent of a company's outstanding shares. As has been hotly debated among practitioners, there are no corresponding disclosure requirements applicable to short positions. Nasdaq believes that legitimate short selling contributes to efficient price formation, enhances liquidity and facilitates risk management. Short sellers may benefit the market and investors in other important ways, including by identifying and uncovering instances of fraud and other misconduct at public companies.

To provide transparency to other investors and the affected companies, Nasdaq supports extending existing disclosure requirements for long investors, such as on Form 13F, Schedule 13D and Schedule 13G, to persons with short positions, including any agreements and understandings that allow an investor to profit from a loss in value of the subject security.

C. Continue to Support Dual Class Structures

Nasdaq supports dual class structures in appropriate situations. The U.S. is a hotbed for entrepreneurship and innovation, and in order to maintain this strength, we must offer entrepreneurs multiple paths to participate in public markets. Nasdaq believes that by permitting dual class structures investors can invest side by side with innovators and high-growth companies and enjoy the financial benefits of these companies' success. Consistent with its one-size-does-not-fit-all approach, Nasdaq believes each publicly traded company should have the flexibility to determine its class structure, so long as the company is transparent and initially discloses such structure to investors.

D. Encourage Rather Than Mandate Environmental, Social and Governance (ESG) Disclosure

As stated in its blueprint, most of Nasdaq's listed companies make some ESG disclosures not only because they believe in responsible business practices but also because they understand that investors are increasingly expecting to analyze ESG metrics in their decision-making process. In keeping with its one-size-does-not-fit-all approach, Nasdaq generally supports the principle that ESG reporting should not be mandated but instead encouraged, so that companies can determine on a case-by-case basis how best to address ESG disclosures and so that the disclosures remain valuable to investors.

Conclusion

While Nasdaq's blueprint does provide some interesting ideas and is meant to foster dialogue between industry participants, it does acknowledge that comprehensive market reform is extraordinarily complex. Indeed, most recognize that a variety of factors have likely contributed to making it more difficult or less attractive for smaller companies to go public.

There is certainly no shortage of suggested causes or possibilities, including the availability of alternative sources of capital, including private equity, hedge funds and even mutual funds; the emergence of trading venues that provide liquidity for privately held shares; new offering methods, such as crowdfunding, and Regulation A; consolidation in investment banking and brokerage services, which left fewer underwriters for small IPOs; changes in the economic environment due to globalization; industry trends forcing companies to get bigger faster to improve profitability, and therefore prefer being acquired by a large company instead of growing organically; macroeconomic factors, such as cheaper debt financing and increased mergers and acquisitions activity; high costs disproportionately imposed on smaller companies by regulatory changes from Sarbanes-Oxley; decimalization and Regulation NMS changed the economics of market making for small company stocks and left fewer market makers willing to organize a market for small stocks post-IPO; an increase in the shareholder threshold introduced by the JOBS Act in 2012, also make it more likely that companies will stay private for a longer period of time; and a significant shift away from retail investing toward institutional investing ‒ who have little interest in investing in small-cap public companies because of concerns regarding trade liquidity and regulatory barriers. Although much of the focus has been placed on reinvigorating the IPO market, there are certainly other areas of the securities laws that are ripe for change as well, which would also have a positive impact on the financial markets. Regardless, we need to bring a balanced approach to study both demand-side and supply-side reforms in order to attract more companies to the public markets.

Footnote

1 See Committee on Capital Markets Regulation, "U.S. Public Equity Markets Are Stagnating," April 2017; Committee on Capital Markets Regulation, "Roadmap for Regulatory Reform," May 2017; SEC Commissioner Piwowar's Opening Remarks in May 2017 at the SEC-NYU Dialogue on Securities Market Regulation: Reviving the U.S. IPO Market; Ernst & Young's "Looking Behind the Declining Numbers of Public Companies – An Analysis of Trends in U.S. Capital Markets," May 2017; and SEC Investor Advocate Rick Fleming, "Enhancing the Demand for IPOs," May 2017, NASAA 2017 Public Policy Conference.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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