Lockheed Martin is asking a federal judge to end a nearly 40-year-old Securities and Exchange Commission requirement that it provide advance notice of any changes to its anti-bribery policies. The requirement to disclose anti-corruption protocols dates back to a 1976 settlement following revelations of illegal payments to foreign government officials. Under those terms, Lockheed Martin must file an 8-K report at least 10 days prior to any policy change.
The effort to end the injunction, specifically the advance notice requirement, is laid out in a motion filed late last week in U.S. District Court for the District of Columbia. Lockheed Martin says an April 7 letter from SEC counsel indicates it will not oppose the request.
The initial settlement, in which Lockheed Martin was not required to admit guilt, included its commitment to create an independent special committee to investigate the allegations, the adoption of a statement of policies and procedures regarding unlawful payments to government officials, and the 10-day notice requirement for any changes to those policies and procedures.
The motion argues that similar requirements of the Sarbanes-Oxley Act make the decades-long requirement less relevant. That legislation requires public companies to adopt and disclose a code of ethics, defined as “written standards that are reasonably designed to deter wrongdoing and to promote…compliance with applicable governmental laws, rules and regulations." The SEC’s resulting rule requires public companies to disclose those codes by either filing them as an exhibit to an annual report, on Form 10-K, or posting them on the company's website. The final rule also requires that certain types of changes to a company's code of ethics must be disclosed within four business days if the policies are posted online.
Lockheed Martin, in response to the SOX requirements, makes its code of ethics and other corporate policies available on its corporate website. Its “Code of Ethics and Business Conduct” applies to anyone “conducting business on behalf of Lockheed Martin,” is made available in 16 different languages, and requires strict compliance with all applicable anticorruption laws, including the Foreign Corrupt Practices Act enacted in 1977, after the company’s settlement was finalized). A more detailed policy on "Compliance with the Anti-Corruption Laws" is also available online.
Given that the SEC does not oppose the partial modification to its settlement with Lockheed Martin, and the fact that online publication of its code satisfies both the terms of that settlement and legislation and rulemaking that came afterwards, the company is asking the court to relieve it of the longstanding disclosure requirement. The request, it says, fits with the SEC’s stated goal of “encouraging the continued development of company web sites as a significant vehicle for the dissemination to investors of important company information."
For example, the company says, in 2014 it was required to file a Form 8-K disclosing minor administrative changes to its Anti- Corruption Policies and Procedures resulting from the retirement of the attorney who had previously been responsible for those policies. Given that the Commission's final rule does not require companies to disclose these types of changes at all, much less in a public filing that the Commission generally reserves for the announcement of “major events that shareholders should know about,” the company makes the case that the Form 8-K filing requirement is “no longer necessary or warranted.”