Keith Paul Bishop

Keith Paul Bishop

Allen Matkins Leck Gamble Mallory & Natsis LLP

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Society Warns ISS That Overboarding Policy Change Will Hurt Women And Minority Directors

Recently, I criticized ISS’ proposed changes to its policy on “overboarding”. Therefore, I was pleased to see that I wasn’t a lone voice crying in the wilderness. The Society of Corporate Secretaries and Governance...more

11/16/2015 - Board of Directors Diversity Glass Lewis ISS Overboarding

The California Political Contribution Case That 19 Law Professors Missed

Earlier this week, I wrote about an amicus curiae brief submitted by 19 law school professors Friedrichs v. Cal. Teachers Ass’n, a case now pending before the United States Supreme Court. In particular, I questioned whether...more

11/13/2015 - Board of Directors Business Judgment Rule Campaign Contributions Friedrichs v CA Teachers Association SCOTUS

ISS Proposes To Go Overboard In Proposed Policy Change

Institutional Shareholder Services Inc. (ISS) is a very influential purveyor of proxy advisory services.  As part of ISS’ annual policy update procedure, ISS recently released a proposed policy change with respect to...more

11/2/2015 - Board of Directors Comment Period Corporate Governance Directors ISS Proxy Season Publicly-Traded Companies

Chancellor Bouchard Rules There Can Be No Ratification Without Works

In reading Chancellor Andre G. Bouchard’s ruling yesterday in Espinoza v. Zuckerberg, 2015 Del. Ch. LEXIS 273 (Del. Ch. 2015), I was reminded of the theological debate among Christians concerning justification by faith.  The...more

10/29/2015 - Board of Directors Business Judgment Rule Corporate Governance Delaware General Corporation Law Facebook Fairness Standard Independent Boards Mark Zuckerberg Ratification Shareholder Approval

Court Rules Directors Are Agents

Last August, I wrote that Magistrate Judge Joseph C. Spero would soon be deciding whether a director might be an agent of the corporation.  See Court Poised To Decide Whether Directors Are Agents.  The case, Wadler v. Bio-Rad...more

10/27/2015 - Board of Directors Designated Agent Directors FCPA Personal Liability Sarbanes-Oxley Separation of Powers

Do Public Pension Funds Breach Their Fiduciary Duties By Pursuing Social Issue Proposals?

Yesterday, UCLA Law School Professor Stephen Bainbridge noted the publication of a recent study that reaches some devastating conclusions for public pension funds.  The study by Professor Tracie Woidtke at the University of...more

10/2/2015 - Board of Directors CalPERS CalSTRS Fiduciary Duty Pensions Public Pension Shareholder Activism Shareholder Proposals

Was This Director Duly Elected Or Appointed?

Suppose that a corporation’s bylaws includes the following two provisions: 1.  The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by the Board...more

9/16/2015 - Articles of Incorporation Board of Directors Bylaws Corporate Minutes Insurance Litigation Meeting Minutes Policy Exclusions

Officers And The Internal Affairs Doctrine

My guess is that most attorneys would say that the duty of an officer to the corporation are governed by the law of the state of incorporation under the “internal affairs doctrine”.  As explained by the U.S. Supreme Court,...more

9/2/2015 - Agents Board of Directors Choice-of-Law Corporate Officers Corporations Code Employment Contract Foreign Corporations Internal Affairs Doctrine State of Incorporation

Nevada Enacts Provisions Permitting Ratification Of Corporate Acts

Etymologically, one might view the meaning of “ratify” as to make as one had thought.  It is derived from two Latin words – ratus (the past participle of the verb meaning to think) and facere (the infinitive of the verb...more

8/25/2015 - Board of Directors Corporate Governance Delaware General Corporation Law Ratification

Court Poised To Decide Whether Directors Are Agents

Not quite four years ago, I wrote about whether directors are agents. The post was prompted by then Chancellor William B. Chandler III’s assertion...more

8/21/2015 - Agents Board of Directors Delaware General Corporation Law Directors Fiduciary Duty News Corp Publicly-Traded Companies Whistleblower Protection Policies

Does The Power To Choose Not Include The Power To Remove?

Last week I wrote about Vice Chancellor John W. Noble’s ruling in Gorman v. Salamone, C.A. No. 10183-VCN (Del. Ch. July 31, 2015) that a stockholder adopted bylaw empowering stockholders to remove officers is invalid.  The...more

8/10/2015 - Board of Directors Bylaws Corporate Governance Corporate Officers Delaware General Corporation Law Shareholders

Court Declines To Declare “S” Corporation Shareholders’ Agreement Unenforceable

In general, shareholders of a corporation that has elected to be taxed under Subchapter S of the Internal Revenue Code are taxed on corporate profits regardless of whether the corporation makes any distribution of those...more

7/27/2015 - Articles of Incorporation Board of Directors Corporations Code Income Taxes Internal Revenue Code (IRC) Public Policy S-Corporation Shareholder Distributions Shareholders Shareholders' Agreements

When It Comes To Director Compensation, California Is Not Delaware

Yesterday, I wrote about my disagreements with the approach to director compensation adopted by the Delaware Court of Chancery in Calma v. Templeton, 114 A.3d 563 (Del. Ch. 2015) and Seinfeld v. Slager, 2012 Del. Ch. LEXIS...more

7/24/2015 - Board of Directors Corporations Code Director Compensation Equity Compensation Fairness Standard Interested Parties Restricted Stocks

No Calm In Delaware After Calma v. Templeton

In derivative suits, cases are essentially lost and won at the motion to dismiss stage.  Unless the defendants succeed in winning dismissal, they must confront an unhappy choice between continued litigation with all of its...more

7/23/2015 - Board of Directors Business Judgment Rule Corporate Governance Delaware General Corporation Law Derivative Suit Executive Compensation Fairness Standard Independent Directors Motion to Dismiss SEC Shareholders

Are Delaware Directors Deathless?

I’ve noticed that the drafters of corporate laws seemed to have overlooked the mortality of directors.  Section 141(b) of the Delaware General Corporation Law, for example, prescribes the term of directors as follows...more

6/24/2015 - Board of Directors Contract Drafting Corporate Charters Delaware General Corporation Law Directors

Before Rapunzel There Was Rudabeh

In Koehler v. NetSpend Holdings, Inc., 2013 Del. Ch. LEXIS 131 (Del. Ch. May 21, 2013), Vice Chancellor Sam Glasscock III wrote “In fact, NetSpend appears more Rapunzel than Penelope; she must, it seems, let down her hair or...more

6/16/2015 - Board of Directors Delaware General Corporation Law Duty of Care Exculpatory Clauses Merger Agreements Private Equity Revlon Standard Share Price Shareholders Target Company

Is The SEC Confused About Who Solicits Proxies?

In reviewing some recent proxy bylaw provisions, I noted that some refer specifically to solicitations “by the Board of Directors”. See, for example, a bylaw provision recently adopted by Monsanto Company. This reference to...more

6/15/2015 - Board of Directors Monsanto Proxy Voting Guidelines Rule 14a-8 SEC

Should Directors Be Required To Have Valid Passports?

Lately, I’ve had occasion to think about director qualifications. Section 212(b)(4) of the California Corporations Code permits the bylaws to to specify the qualifications of directors.  In Section 141(b),the Delaware General...more

6/9/2015 - Board of Directors Bylaws Corporations Code Delaware General Corporation Law Fiduciary Duty Passports

Court Finds No “Road of Imprudence” or “Chasm of Equity” In Section 25501

Faithful readers of this blog will be familiar with the structure of the California Corporate Securities Law. Part 5 of the CSL (Cal. Corp. Code §§ 25400 – 25404) proscribes various conduct and Part 6 (Cal. Corp. Code §§...more

6/3/2015 - Board of Directors Corporate Officers Corporations Code Joint and Several Liability Securities

CalPERS Board Member Contests Attorney General’s Conflicts Position

Last December, I wrote about J.J. Jelincic, a long-term CalPERS employee who was elected for a four-year term to the Board of Administration of the California Public Employees Retirement System (aka CalPERS). Following Mr....more

4/24/2015 - Board of Directors CalPERS Carbon Emissions

How Many Board Members Are Required To Take Action?

Suppose your corporation has a five member board of directors but two seats are vacant.  Suppose further that your corporate bylaws included the following two provisions: A.  Three members of the board shall...more

4/21/2015 - Board of Directors Bylaws Corporate Governance Corporations Code Quorum

I understand Chair, Chairperson, Chairman and Chairwoman But Not Chairwomen of the Board

In February, I posted this little rumination on the origin of the term “chairman”. Then I came across SB 351 introduced late last month by the California Senate Committee on Banking and Financial Institutions. Currently...more

3/9/2015 - Board of Directors Corporations Code Legislative Committees

Court Refuses To Break Board Deadlock By Appointing A Provisional Director

Section 308 of the California Corporations Code provides for the appointment of a provisional director when a corporation has an even number of directors who are equally divided and cannot agree as to the management of the...more

2/5/2015 - Board of Directors Corporate Governance Corporations Code Directors Power of Appointment

The SEC’s Rule 14a-8 Process Just Became Even More Pointlessly Outré

Yesterday, Broc Romanek posted on SEC Chair Mary Jo White’s Friday surprise with respect the no-action letter request submitted by Whole Foods Market, Inc. Readers may recall that in December Whole Foods had obtained the...more

1/20/2015 - Board of Directors Mary Jo White No-Action Letters Proxy Access Rule Proxy Statements SEC Shareholder Activism Shareholder Proposals Shareholders Whole Foods

Commissioner Gallagher Posits SEC Would Prevail Against Harvard University

Just this week, Commissioner Daniel M. Gallagher and former Commissioner Joseph A. Grundfest issued a draft of a paper that takes on the Harvard Shareholder Rights Project. The Harvard SRP describes itself as “a clinical...more

12/12/2014 - Board of Directors Harvard University SEC Shareholders Universities

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