Jonathan M. Ocker

Jonathan M. Ocker

Orrick, Herrington & Sutcliffe LLP

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Latest Publications


How to Avoid Director Pay Litigation

In the last few years, Delaware courts have issued several rulings in lawsuits involving complaints of excessive compensation to non-employee directors (1). The takeaways from these cases can be summarized as follows...more

10/11/2016 - Business Judgment Rule Compensation & Benefits Compensation Committee Directors Disclosure Requirements Incentive Compensation Non-Employees Popular Proxy Statements Shareholders

Update on Institutional Shareholder Voting Guidelines on Management Say-on-Pay and Incentive Plan Proposals

This Alert is an update to last year's Client Alert on the same topic, which also discussed how to win a proxy fight despite a "no" recommendation from Institutional Shareholder Services ("ISS") and/or Glass Lewis. The...more

3/31/2016 - BlackRock Executive Compensation Glass Lewis ISS Morgan Stanley Pay-for-Performance Proxy Advisors Proxy Season Proxy Voting Guidelines Say-on-Pay Shareholders Vanguard

Good News from the IRS on 401(K) Safe Harbor Plans

Safe harbor 401(k) plans are attractive because they are not required to perform annual nondiscrimination testing. In the past, one of the biggest reasons not to offer a safe harbor 401k) plan was the prohibition on changing...more

3/3/2016 - 401k Employee Benefits IRS Retirement Plan Safe Harbors

A Plain English Guide to the SEC's Compensation Clawback Rules

As accounting restatements occur relatively infrequently, and the severity is often modest, the proposed “clawback” rules represent more of a "check the box" compliance activity than a real enforcement threat....more

7/24/2015 - Board of Directors Clawbacks Compensation Committee Compliance Corporate Officers Disclosure Requirements Executive Compensation Financial Statements Form 8-K Former Directors Pay-for-Performance Performance Incentives SEC Shareholders

Pay For Performance Table and Best Proxy Disclosure

The SEC recently released its proposed "pay for performance" rules under one of the last remaining executive compensation requirements mandated by the Dodd-Frank Act. This new "pay for performance" rule requires companies1 to...more

5/27/2015 - CD&A CEOs Disclosure Requirements Executive Compensation ISS Pay-for-Performance Proxy Statements Publicly-Traded Companies SEC Total Shareholder Return (TSR)

Institutional Shareholder Voting Guidelines: How to Win a Proxy Fight Despite a "NO" Recommendation from ISS and/or Glass Lewis

There is no doubt that Institutional Shareholder Services ("ISS") and Glass Lewis, as advisors to institutional shareholders, have a significant impact on the level of shareholder support for a company's Say on Pay and...more

5/13/2015 - Compensation Committee Executive Compensation Form 8-K Glass Lewis Incentive Compensation ISS Proxy Contests Proxy Voting Guidelines Shareholder Votes Supplemental Disclosures

Practical Advice for Compliance with Recent Amendments to the Internal Revenue Code Section 162(m) Regulations

The recent amendments to the Section 162(m) regulations largely follow the changes set forth in the proposed regulations issued in 2011, clarifying two exceptions from the Section 162(m) tax deductibility limit...more

4/24/2015 - Compensation & Benefits Employee Benefits Equity Compensation Internal Revenue Code (IRC) Publicly-Traded Companies Restricted Stocks SAR Section 162(m) Stock Options Tax Deductions

ISS Adopts Discretion in Evaluating Management Equity Plan Proposals – May Lead to Increase in CEO Performance Shares and...

What's New? What's new and interesting about the new ISS "score card rules" are two sentences that say: (i) that an issuer's share plan proposal may pass the Shareholder Value Transfer ("SVT") test but still...more

12/15/2014 - CEOs Incentive Stock Options ISS Shareholders Stocks

High Tax Rates Spur the Allure of Deferred Compensation

There are a number of reasons why executives choose to defer the payment of current compensation under a nonqualified deferred compensation plan. For example, some executives do not need the compensation to be paid...more

6/19/2014 - Deferred Compensation Executive Compensation Income Taxes Tax Rates

Tax Reform Bill Proposal - Much Ado About Nothing

As widely reported, on February 26, 2014, U.S. House of Representatives Committee on Ways and Means Chairman Dave Camp (R-MI) released the proposed Tax Reform Act of 2014 (the "Camp Proposal"). In exchange for simplification...more


The Importance Of Good Compensation Committee Minutes – 7 Tips

With the recent increase in proxy litigation and the public focus on executive pay, it is very important that the minutes of the compensation committee of the board of directors be recorded properly. Following are some tips...more

12/20/2013 - Board of Directors Compensation Committee Corporate Governance Executive Compensation Recordkeeping Requirements

Accidents Happen: Innocent Mistakes By Board May Not Spoil Business Judgment Protection

Recently, the Delaware Court of Chancery in Pfeiffer v. Leedle declined to dismiss a shareholder derivative action against a board for breach of fiduciary duty, where the directors allegedly approved stock options exceeding...more

11/14/2013 - Breach of Duty Business Judgment Rule Fiduciary Duty Stock Options Stocks

ISS 2013 Policy Updates

On November 16, 2012, Institutional Shareholder Services (“ISS”) released its policy updates to its voting guidelines for the 2013 proxy season. The 2013 updates include a revised methodology for the selection of the ISS peer...more

11/28/2012 - ISS

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