Prediction markets allow participants to trade contracts on whether or not real-world events will occur. These platforms have grown rapidly, and contracts tied to specific company activity are now actively trading, including contracts on IPOs, mergers and acquisitions, earnings call mentions, and sales and subscriber metrics. While most public companies have adopted insider trading and related policies to regulate trading in the company’s securities, companies’ policies are generally written for securities transactions, where prediction market event contracts are generally not offered or traded as securities in the traditional sense. That gap matters, as companies still need to guard against misuse of company information in the context of other transactions, such as events contracts. Trading on the basis of nonpublic information on prediction markets may attract enforcement at multiple levels, including platform based sanctions, regulatory actions, and criminal charges against individuals that may have implications for public companies. This alert explains the risks, outlines what companies can do to address these risks and identifies what to watch for as the regulatory framework takes shape.
Continue Reading Betting on Company Information: Prediction Market Considerations for Public CompaniesMichael J. Albano
It’s Not DE, It’s You: 55 Billion Reasons Tesla is Not ‘Your Company’
On January 30, 2024, the Delaware Court of Chancery struck down Tesla CEO Elon Musk’s $55 billion performance-based stock option package, ruling that Tesla’s directors did not satisfy the stringent “entire fairness” standard in approving his compensation. This case comes on the heels of a $735 million settlement in which Tesla directors disgorged previously-received compensation following shareholder claims of unjust enrichment and breach of fiduciary duty.[1] The court applied the entire fairness standard because of Musk’s enormous control over the transaction, referring to him as a “Superstar CEO”[2] who wielded maximum possible influence over the board. While the compensation package was approved by a majority of disinterested shareholders, the court concluded proxy disclosure was deficient and therefore shareholders were not fully informed.[3] Ultimately, the Tesla board was not able to prove the benefit received from Musk’s leadership was worth the $55 billion Tesla paid for it.
Continue Reading It’s Not DE, It’s You: 55 Billion Reasons Tesla is Not ‘Your Company’ClawFAQs: Common Clawback Questions
Over thirteen years after the Dodd–Frank Wall Street Reform and Consumer Protection Act added Section 10D to the Securities Exchange Act of 1934 (the “Exchange Act”), the Securities and Exchange Commission’s (“SEC”) clawback rules[1] became effective on October 2, 2023 (the “Clawback Rules”). Companies listed on national exchanges such as the New York Stock Exchange (“NYSE”) and the Nasdaq Stock Market (“Nasdaq”) will be required to adopt clawback policies by December 1, 2023 and comply with their respective listing standards.[2] Companies, executives and advisors have understandably been grappling with how to ensure compliance with these new Clawback Rules. Below, we address some common questions that we have received.
Continue Reading ClawFAQs: Common Clawback QuestionsNasdaq and NYSE Propose October 2, 2023 as Effective Date in Amendments to its Proposed Clawback Listing Standards
[Note: This post has been updated to reflect the SEC’s approval of the Nasdaq and NYSE amendments.]
On Friday, June 9, 2023, the U.S. Securities and Exchange Commission (“SEC”) approved, on an accelerated basis, each of the Nasdaq Stock Market’s (“Nasdaq”) and the New York Stock Exchange’s (“NYSE”) proposed listing standards, as modified by the Exchanges’ respective amendments from last week, implementing the requirement for issuers to adopt and disclose “no fault” clawback policies providing for the recovery of erroneously awarded compensation.[1]
Continue Reading Nasdaq and NYSE Propose October 2, 2023 as Effective Date in Amendments to its Proposed Clawback Listing Standards