R. Douglas Harmon

R. Douglas Harmon

Parker Poe Adams & Bernstein LLP

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Are Universal Proxy Ballots On the Way?

Improving the proxy process remains front and center at the SEC and continues to garner media headlines. A recent high-profile example was this past proxy season’s focus on proxy access shareholder proposals, including the...more

6/29/2015 - Corporate Governance No-Action Letters Proxy Access Rule Rule 14a-8 SEC Shareholder Proposals Universal Proxy Ballots Whole Foods

Protecting Director Equity Grants from Entire Fairness Review

The Delaware Court of Chancery recently held in Calma v. Templeton that the decision by the Citrix Systems, Inc. board of directors to grant equity compensation to its non-employee directors was subject to the entire fairness...more

6/16/2015 - Board of Directors Business Judgment Rule Corporate Governance Equity Compensation Fairness Standard Restricted Stocks

Expanded Audit Committee Responsibilities–New Auditing Standard No. 18

Last October, with relatively little fanfare, new PCAOB Auditing Standard No. 18 expanded Audit Committee oversight responsibilities. (See this Doug’s Note.) AS 18, which became effective for fiscal years beginning on or...more

6/5/2015 - Audit Committee Audits Corporate Governance Corporate Officers PCAOB

Liability for Statements of Opinion–New Clarity from the Supreme Court

The U.S. Supreme Court’s recent decision in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund resolved a clear split in the federal courts of appeal regarding when statements of opinion may give...more

5/27/2015 - Issuers Material Misstatements Omnicare v Laborers District Council Pharmaceutical Manufacturers Publicly-Traded Companies Registration Statement SCOTUS Section 11 Securities Act of 1933

The DOJ’s Cyber Incident “Best Practices” Guidance

The Cybersecurity Unit of the U.S. Department of Justice released in April its “Best Practices for Victim Response and Reporting of Cyber Incidents,” which it says reflects “lessons learned by federal prosecutors while...more

5/19/2015 - Best Practices Cybersecurity DOJ New Guidance

The New Pay-for-Performance Proposal – A Misstep by the SEC

The SEC last week finally proposed rules mandated by Dodd-Frank providing for disclosure of the relationship between compensation actually paid to executives and company financial performance. While it is important to...more

5/6/2015 - Disclosure Requirements Dodd-Frank Executive Compensation Pay-for-Performance Proposed Regulation Regulation S-K SEC Total Shareholder Return (TSR)

Another Whistleblower Award Wrinkle

There is no longer any doubt that the SEC is serious about implementing its whistleblower program. According its most recent award announcement, the program has now paid more than $50 million to whistleblowers since its 2011...more

4/28/2015 - Best Management Practices Chief Compliance Officers SEC Whistleblower Awards Whistleblowers

Two Oft-Neglected Cybersecurity Protections

With each passing year, cybercrime moves further into the mainstream of public company existence. What until recently was mostly an annoying, abstract concern for a handful of companies is now a daily menace that impacts...more

4/16/2015 - Corporate Counsel Cyber Crimes Cyber Insurance Cybersecurity Disclosure Popular Publicly-Traded Companies Risk Assessment SEC

The SEC Enforces Whistleblower Protection from Confidentiality Agreements

Earlier this week, the SEC announced in a first-of-its-kind enforcement action that certain KBR, Inc. confidentiality agreements violated the whistleblower protections of the Dodd-Frank Act....more

4/7/2015 - Confidentiality Agreements Enforcement Actions Internal Investigations KBR (formerly Kellogg Brown & Root) Rule 21F SEC Whistleblower Protection Policies Whistleblowers

The New Revenue Recognition Standards–What Lawyers Should Know

Last year, the FASB issued ASU 2014-09, Revenue from Contracts with Customers, which outlines a single comprehensive model for accounting for revenue arising from customer contracts. When it becomes effective (for fiscal...more

3/30/2015 - FASB Financial Statements GAAP

A Sea Change in Proxy Access?

Proxy access has suddenly leap-frogged to the top of seemingly everyone’s corporate governance list after various setbacks over the past few years. In fact, a March 17th Wall Street Journal article quoted Anne Simpson, head...more

3/23/2015 - CalPERS Corporate Governance Proxy Access Rule Shareholder Proposals Shareholders TIAA CREF

The Latest from Warren Buffett

It’s always refreshing, and a bit entertaining, to read Warren Buffett’s annual letter to Berkshire Hathaway’s shareholders. His willingness to talk candidly about his and the company’s performance over the past year—both...more

3/17/2015 - Berkshire Hathaway Board of Directors CEOs Shareholders Warren Buffet

User-Friendly 10-Ks–The Next Step in Shareholder Engagement

Much has been written about the dramatic increase in shareholder engagement from both sides of the relationship. For example, financial and governance roadshows have become mainstream not only among large-cap companies, but...more

3/10/2015 - Corporate Governance Disclosure Requirements Form 10-K General Electric Publicly-Traded Companies Shareholder Activism Shareholders

Full Dissemination of Information–How Many Days?

How many days does it take for material nonpublic information in a press release or an SEC filing to be deemed fully disseminated to, and digested by, the marketplace? The answer can affect, for example, the duration of a...more

3/6/2015 - Material Nonpublic Information Public Disclosure SEC

Mid-Cap Governance Roadshows Trending Upward

It has been interesting to watch the evolution of governance roadshows from relative obscurity only a few years ago to standard practice, at least among large-cap public companies. The catalyst was the early-2011 adoption of...more

2/24/2015 - Corporate Governance Executive Compensation Proxy Advisors Say-on-Pay SEC

SEC Proposes Long-Awaited Hedging Disclosure Rules

The SEC recently proposed rules to implement Dodd-Frank-mandated disclosure regarding permitted hedging by officers and directors. If you have been following the post-Dodd-Frank rulemaking saga, you know that this is one of...more

2/17/2015 - Disclosure Requirements Dodd-Frank Hedging Proposed Regulation Publicly-Traded Companies Regulation S-K SEC

Expediting Debt Tender and Exchange Offers

In late January, the SEC’s Division of Corporation Finance issued a no-action letter that significantly expedites non-investment grade debt security tender and exchange offers and eases certain other restrictions. With so...more

2/9/2015 - Exchange Offer No-Action Letters Non-Convertible Debt Securities SEC Tender Offers

Data Breach Preparedness Continues to Lag

A recent study by an independent research institute suggests that the increase in companies’ efforts to prepare for data breaches may not be keeping up with the increased risk. A September 2014 report by Ponemon Institute LLC...more

2/3/2015 - Best Practices Cybersecurity Data Breach Popular

Litigation Disclosures Can Constitute Title VII Retaliation

Here is something to watch out for. Earlier this month, the U.S Court of Appeals for the Seventh Circuit held that naming an EEOC claimant in the legal proceedings section of a company’s periodic reports may constitute...more

1/27/2015 - Appeals EEOC Employer Liability Issues Form 10-K Public Disclosure Retaliation Title VII

SEC Reverses Course on Proxy Exclusions for Certain Shareholder Proposals

Much is being made of the January 16th statement by SEC Chair Mary Jo White regarding a company’s ability to exclude a shareholder proposal from its proxy statement based on Rule 14a-8(i)(9), which allows exclusion when a...more

1/21/2015 - Board of Directors Mary Jo White No-Action Letters Proxy Access Rule Proxy Statements SEC Shareholder Activism Shareholder Proposals Shareholders

More Forum Selection Affirmation from Delaware

An interesting Delaware Supreme Court decision just before the holidays may have escaped many people’s attention. In United Technologies Corp. v. Treppel, the Court concluded in the context of stockholder inspection rights...more

1/12/2015 - Books & Records Bylaws Confidentiality Agreements Delaware General Corporation Law Forum Selection Clause Shareholder Litigation Shareholders

Using Board Executive Sessions to Manage Enterprise Risk

Boards of directors are now thoroughly immersed in enterprise risk management, so much so that separate risk oversight board committees are fast becoming common practice. (See this Doug’s Note.) Boards and management...more

12/31/2014 - Board of Directors Corporate Management Enterprise Risks

What’s New with Insider Trading…and What’s Not

Much has already been written about the Second Circuit Court of Appeals’ December 10th insider trading decision: in United States v. Newman, et al., the Court significantly trimmed back the circumstances in which tippees of...more

12/19/2014 - Hedge Funds Illegal Tipping Insider Trading Material Nonpublic Information Personal Benefit Portfolio Managers Securities Securities Fraud US v Newman

IRS Monitoring of Tax Disclosures

It is not often that I get to (or even want to) write about the tax disclosures contained in the notes to financial statements. However, this recent CFO article highlighted a recent study by professors at Ohio State...more

12/15/2014 - Disclosure Requirements Financial Statements Form 10-K IRS

Emerging Sustainability Reporting Standards

Whether they call it ESG (environment, social responsibility and governance), CR (corporate responsibility), sustainability or something else, more and more companies are choosing to voluntarily disclose their efforts and...more

12/8/2014 - Annual Reports Corporate Governance Corporate Social Responsibility Proxy Statements Sustainability Sustainable Business Practices Voluntary Disclosure

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