Keith Paul Bishop

Keith Paul Bishop

Allen Matkins Leck Gamble Mallory & Natsis LLP

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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

Does The SEC Know How To Assess Risks And Rewards?

The Securities and Exchange Commission’s proposed rules governing stock exchange listing standards governing recovery of erroneously awarded compensation cause me to wonder whether the SEC understands how to assess risks and...more

7/21/2015 - Clawbacks Issuers Listing Standards Risk Assessment Rule 10D-1 SEC

Implementation Issues Abound For The SEC’s Proposed Clawback Rules

When adopted, the incentive compensation clawback rules recently proposed by the Securities and Exchange Commission are likely to present issuers with a number of implementation challenges. Some of these challenges have been...more

7/20/2015 - Change in Control Chief Compliance Officers Clawbacks Compensation Committee Executive Compensation Issuers Proposed Regulation Publicly-Traded Companies SEC Section 10D Securities Exchange Act

Can The SEC Ignore Congress’ Plain Language?

In proposing executive incentive compensation clawback rules, the Securities and Exchange Commission departs materially from the plain words of Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act....more

7/17/2015 - Clawbacks Dodd-Frank Executive Compensation SEC Section 10D Securities Exchange Act Statutory Interpretation

The SEC’s Unconvincing Case Against Indemnification

The Securities and Exchange Commission’s proposed rules take a hard line against issuers indemnifying executives against clawbacks: We believe that indemnification arrangements may not be used to avoid or nullify the recovery...more

7/15/2015 - C-Suite Executives Clawbacks Executive Compensation Indemnification Clauses Listing Rules Proposed Regulation Rule 10D-1 SEC Stock Exchange

SEC Clawback Proposal Overlooks Contract Law Fundamentals

In proposing the clawback rules for stock exchanges mandated by Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the Securities and Exchange Commission evinces little regard for contrary...more

7/14/2015 - Bylaws Clawbacks Corporate Governance Dodd-Frank Employment Contract Executive Compensation Indemnity Agreements SEC

The SEC’s Clawback Proposal – An Unconstitutional Taking?

In proposing incentive compensation clawback rules, the Securities and Exchange Commission studiously ignored any constitutional restraints on its actions.  Buried in the 198-page proposal is this chilling assertion...more

7/13/2015 - Article 10 Clawbacks Contracts Clause Executive Compensation Fifth Amendment Proposed Regulation SEC Takings Clause

What The SEC Pretermitted In Proposing Clawback Policy Rule

The Securities and Exchange Commission began the month by issuing proposed rules that would direct national securities exchanges and associations to establish listing standards requiring companies to adopt policies that...more

7/10/2015 - Clawbacks Dodd-Frank Executive Compensation Incentive Compensation Listing Standards Preemption Proposed Regulation Rule 10D-1 SEC

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 Schedule 14A SEC

Nevada To Allow Corporations To Stiff Charon

Unsuccessful corporations often fall into an eternal desuetude. Having nothing, no one wants to pay the Secretary of State to complete their dissolution. Because they don’t file the required annual lists and pay the annual...more

6/11/2015 - Corporate Dissolution Dissolution New Regulations SEC Secretary of State

Why The WSJ Is Wrong About SEC Rulemaking On Claw backs

As noted by Broc Romanek, The Wall Street Journal yesterday announced: The Securities and Exchange Commission will soon propose long-awaited rules forcing companies to claw back, or revoke, some of their top...more

6/4/2015 - Clawbacks Executive Compensation FINRA Incentive Compensation NYSE Preemption Rulemaking Process SEC

Does The SEC’s Unbundling Rule Deprive Stockholders The Right To Vote On The Whole?

A forthcoming academic paper looks for bundling in more than 1,500 management proposals between 2003 and 2012.  Bundling occurs when multiple matters are combined into a single proposal.  The authors, James Cox, Fabrizio...more

5/27/2015 - Bundling Rules SEC Shareholder Rights Shareholder Votes Shareholders

SEC Is Sued Again For Doing Nothing

Thursday, Broc Romanek wrote about a lawsuit filed earlier this week against the Securities and Exchange Commission due to its failure to respond to a petition asking the Commission to adopt political spending disclosure...more

5/15/2015 - Disclosure Requirements Political Contributions SEC

What Exactly Does The SEC Mean By “Permit”?

The Securities and Exchange Commission has proposed rule amendments to implement Section 955 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L.  No. 111-203, 124 Stat. 1900 (July 21, 2010).  Among other...more

4/27/2015 - Dodd-Frank Proposed Amendments Regulation S-K SEC

Will California Require Notice Filings For Regulation A Offerings?

Last month, the Securities and Exchange Commission adopted amendments to Regulation A as required by Section 3(b)(2) of the Securities Act of 1933, which was added by Section 401 of the Jumpstart Our Business Startups (JOBS)...more

4/20/2015 - Amended Regulation Department of Business Oversight Issuers JOBS Act Qualified Purchaser Regulation A SEC

Email Notice Without Consent Is Not Notice

The California General Corporation Law unequivocally authorizes the giving of notice of stockholder meetings by electronic transmission. Section 601(b) provides “Notice of a shareholders’ meeting or any report shall be given...more

4/15/2015 - Corporate Officers Corporations Code Directors Electronic Communications Email Hedging Proposed Regulation SEC Shareholder Meetings Shareholders Written Notice

Why Your Shareholder Meeting Waivers Of Notice May Not Be Up To Snuff

Like other states, California generally requires that whenever shareholders are required or permitted to take action at a meeting, notice of that meeting must be given to the shareholders entitled to vote. Cal. Corp. Code §...more

4/13/2015 - Annual Meeting Corporate Governance SEC Shareholder Meetings Waiver of Notice

Could The SEC Ask Airlines To Produce Data On Delayed And Canceled Flights?

The following story is fiction.   It was imagined following the SEC’s recently settled action against KBR, Inc. Airlines were caught completely off guard yesterday by SEC letters asking that they produce five years of...more

4/9/2015 - Airlines KBR (formerly Kellogg Brown & Root) Request For Information Rule 21F SEC Whistleblower Protection Policies Whistleblowers

Are The SEC’s Canons Of Ethics Written In The Wind And Waves?

It’s easy to be annoyed by the SEC’s failure to comply with clear statutory mandates. However, not everyone is longanimous. Oxfam America, for example, has moved beyond irritation to litigation. Oxfam America’s suit is...more

4/7/2015 - Dodd-Frank Oxfam America Reporting Requirements SEC Section 1504

District Court Refuses To Halt SEC Administrative Proceedings

While serving as General Counsel to California’s Business, Transportation & Housing Agency, I was from time to time asked to respond to ersatz summons and other documents issued by “Our One Supreme Court”. Given that these...more

3/30/2015 - Administrative Hearings Bebo v SEC Enforcement Actions SEC

Should The SEC Adopt Governance Principles (For Itself)?

When I served as Commissioner of Corporations for the State of California, I was sometimes asked about the other Commissioners.  However, I never concerned myself with the “other Commissioners” because there were no other...more

3/24/2015 - Corporate Governance Governance Standards Legal History SEC

Is The SEC’s Notice Of Internet Availability Of Proxy Materials Form Gender Biased?

The idea that men won’t ask for directions is a staple of many jokes.  I don’t know whether this is fact or urban myth.  However, a few years back the Princeton University Press published an entire book on the subject. ...more

3/11/2015 - Internet Proxy Materials SEC

Oxfam America Argues SEC Has “Unlawfully Withheld And Unreasonably Delayed” Resource Extraction Rule

I’ve often wished that my legal acumen could be judged by the same standard as professional baseball players. If that were the case, I could be wrong nearly 60% of the time and yet be considered one of the greatest legal...more

3/6/2015 - Conflict Mineral Rules Disclosure Requirements Form 10-K Oxfam Oxfam America SEC

Does Former Officer Have An Obligation To Turn Over Whistleblower Award?

Monday, the Securities and Exchange Commission announced “a whistleblower award payout between $475,000 and $575,000 to a former company officer who reported original, high-quality information about a securities fraud that...more

3/3/2015 - Corporate Officers Enforcement Actions Popular Sanctions SEC Whistleblower Awards Whistleblowers

Broad Coalition Delivers Blunt Rebuke To SEC Chairman

Last month, I wrote that the SEC’s about face in responding to the no-action letter request of Whole Foods Market, Inc. “clearly wasn’t the SEC’s finest hour.” Several days later, a coalition of some 17 different...more

3/2/2015 - Mary Jo White No-Action Letters Proxy Season SEC Whole Foods

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