Comment on Rule 14a-8(i)(9), Securities and Exchange Commission, June 30, 2015

The Securities and Exchange Commission has been analyzing its interpretation under Subsection (i)(9) of Rule 14a-8. This provision allows for the exclusion of shareholder proposals that conflict with those submitted by management. The staff has been examining its interpretation since instructed to do so by the chair of the SEC following a no action appeal in a case involving Whole Foods. A number of letters and memos submitted in connection with the review have analyzed the issue. At least one asserted that any change in interpretation required the Commission to go through the process of notice and comment. This letter asserts that notice and comment is not required, relying extensively on Perez v. Mortgage Bankers Association.

Comment Letter on Rule 14a-8(I)(10), Securities & Exchange Commission, June 18, 2015

This letter focuses on SEC interpretations of Rule 14a-8(i)(10). The provision allows issuers to exclude shareholder proposals that have been “substantially implemented.” This has traditionally been used to allow for the exclusion of proposals rendered “moot” by the company’s actions. Companies, however, need not implement the shareholder proposal “exactly.” As a result, the staff is often asked to determine whether changes made by the company are substantial. The comment letter discusses positions taken by the staff where the company adopts a proposal asking that shareholders with a specified percentage of shares have the right to call a special meeting but limits eligible shares to those held for a specified period of time.

Fail-Safe Testing of Web Applications

This dissertation introduces an approach to generate tests to test fail-safe behavior for web applications. We apply the approach to a commercial web application. We build models for both behavioral and mitigation requirements. We create mitigation tests from an existing functional black box test suite by determining failure type and points of failure in the test suite and weaving required mitigation based on weaving rules to generate a test suite that tests proper mitigation of failures. A genetic algorithm (GA) is used to determine points of failure and type of failure that needs to be tested. Mitigation test paths are woven into the behavioral test at the point of failure based on failure specific weaving rules. A simulator was developed to evaluate choice of parameters for the genetic algorithm. We showed how to tune the fitness function and performed tuning experiments for GA to determine what values to use for exploration weight and prospecting weight. We found that higher defect densities make prospecting and mining more successful, while lower mitigation defect densities need more exploration. We compare efficiency and effectiveness of the approach. First, the GA approach is compared to random selection. The results show that the GA performance was better than random selection and that the approach was robust when the search space increased. Second, we compare the GA against four coverage criteria. The results of comparison show that test requirements generated by a genetic algorithm (GA) are more efficient than three of the four coverage criteria for large search spaces. They are equally effective. For small search spaces, the genetic algorithm is less effective than three of the four coverage criteria. The fourth coverage criteria is too weak and unable to find all defects in almost all cases. We also present a large case study of a mortgage system at one of our industrial partners and show how we formalize the approach. We evaluate the use of a GA to create test requirements. The evaluation includes choice of initial population, multiplicity of runs and a discussion of the cost of evaluating fitness. Finally, we build a selective regression testing approach based on types of changes (add, delete, or modify) that could occur in the behavioral model, the fault model, the mitigation models, the weaving rules, and the state-event matrix. We provide a systematic method by showing the formalization steps for each type of change to the various models.

Staying in the Delaware Corporate Governance Lane: Fee Shifting Bylaws and a Legislative Reaffirmation of the Rules of the Road

The Delaware legislature has taken steps towards the adoption of amendments to the Delaware General Corporation Law (DGCL) that would prohibit fee shifting provisions in the articles and bylaws. The language in the legislative proposal, however, addresses fee shifting provisions only in the context of "internal corporate claims." Some have raised concerns that this language would allow for fee shifting provisions that applied to other types of actions, including at least some cases brought under the securities laws. This piece suggests that in fact the Delaware General Corporation Law already prohibits the adoption of bylaws and certificate provisions that apply to causes of action unrelated to internal corporate claims. As a result, there was no reason for the Delaware legislature to expressly bar fee shifting provisions in these types of actions.

Legislative Proposals to Modernize Business Development Companies and Expand Investment Opportunities, Testimony Before the House Subcommittee on Capital Markets and Government Sponsored Enterprises

This testimony discusses proposed legislation to amend the definition of accredited investor. It also discusses proposed legislation designed to reform the regulatory framework for business development companies. Among other things, the regulatory regime for BDCs would change to allow these companies to invest a greater portion of their assets in financial companies, potentially reducing the percentage of assets invested in operating companies.