News & Analysis as of

Anticipating Shareholder Proposals During the 2015 Proxy Season

As companies begin to prepare for the 2015 proxy season, it will be important to anticipate the types of shareholder proposals they should expect so that they can develop a more meaningful response. This can be accomplished...more

1, 2 or 3 Years? How Should Boards Decide The Frequency Of Say-On-Pay Votes?

Although the initial ruckus over how to determine the outcome of executive compensation say-on-frequency votes has subsided, I still maintain that the Securities and Exchange Commission botched the rule (§240.14a-21(b)). ...more

Activism: An Overview from the Company Perspective

Increasingly, companies are being confronted with shareholders seeking to exercise power and influence over business activities. The term “activism” has become a buzzword to refer to shareholders seeking to make operational,...more

Council of Institutional Investors Issues Report on Board Evaluation Disclosure

The Council of Institutional Investors (CII), an advocacy group for corporate governance and shareholder rights, has published a report that highlights two approaches to disclosure regarding a board’s process of...more

SEC Compliance Manual for NYSE-Listed Non-US Companies

As a result of registration of ordinary shares including in the form of American Depositary Shares (“ADSs”) under the US securities laws and the listing of ordinary shares or ADSs on the New York Stock Exchange (the “NYSE”),...more

Forum Selection Bylaws Are Best Considered On A Clear Day

“Exclusive forum” bylaws and charter provisions are a powerful tool for managing the risk of parallel corporate governance litigation against a company and its directors in multiple forums, allowing stockholders to bring such...more

Activism and Engagement: Yadda, Yadda, Yadda or a Useful tool (or a Little of Both)

Activism is on the rise and everyone's activism defense playbook includes engagement, engagement and more engagement as the principal response. The experts in the field are well versed in when to engage, who to engage...more

Lead Director Network: Viewpoints: Proxy trends and advisory firm policy

Lead Director Network (LDN) and Compensation Committee Leadership Network (CCLN) members met jointly on July 17, 2014 to discuss proxy advisory firm policy and trends from the 2014 proxy season. They were joined for part of...more

Creative Shareholder Engagement–Director Videos?

Much has been written lately about the importance of shareholder engagement. (See this Doug’s Note, for example.) There has even been recent clambering to involve directors directly in shareholder engagement....more

Substantial Holder Notices - Some Recent Developments

Substantial holder notices are essential for the existence of an informed market. As reiterated by the Takeovers Panel (Panel) in the recent Northern Iron Ltd [2014] ATP 11 (Northern Iron) decision: "the broadly cast...more

Stockholder Proposal Seeks To Ratification Of All Decisions And Actions

For the last six years, Amerco as included a rather unique stockholder proposal in its proxy statement. It’s there again this year. Basically, it asks the stockholders to ratify and affirm all decisions and actions by...more

Vote-Counting Standards: A Recipe for Confusion?

Shareholder voting standards was a hot topic this proxy season and will likely continue to be of significant interest next proxy season and in subsequent years. This proxy season, shareholders submitted various proposals...more

Governance & Securities Law Focus: Latin America Edition

In this issue: - US DEVELOPMENTS - SEC Developments - PCAOB Adopts Auditing Standard and Amendments - Noteworthy US Securities Law Litigation - Recent SEC/DOJ Enforcement Matters...more

Governance & Securities Law Focus: Europe Edition

In this issue: - EU DEVELOPMENTS - Statutory Audit Directive and Regulation Published in Official Journal - Council Adopts Intra-Corporate Transferees Directive - ESMA Publishes Consultation and...more

Counsel to the Company: A Framework for Corporate Governance

As a threshold matter, counsel must identify, and remain clear as to, the identity of its client, which may be the company or a subsidiary, the Board or Board committee, or one or more executives. The identity of the client...more

Texas Supreme Court Rejects a General Cause of Action for Minority Shareholder Oppression

The Supreme Court of the State of Texas recently issued a significant opinion relating to the remedies available to minority shareholders of Texas corporations. In Ritchie v. Rupe, No. 11-0447 (Tex. June 20, 2014), available...more

Have Your Directors Met Their Revlon Duties? Delaware Court Dismisses Strike-Suit Allegations as Merely Cosmetic

In a virtual course on how to bring—or not bring—an M&A strike suit, on June 30, a Delaware Chancery Court dismissed all shareholder claims against a merger target and its acquirer, ending nearly two years of litigation. ...more

The Resilient Rights Plan: Recent Poison Pill Developments and Trends

Shareholder rights plans were developed more than 30 years ago to fend off opportunistic hostile offers and other abusive takeover transactions. Rights plans deter unauthorized stock accumulations by imposing substantial...more

SEC Chair White Discusses Directors’ Responsibilities

In a recent speech at the Stanford Directors’ College, SEC Chair Mary Jo White discussed several “things that directors should know about the SEC.” Her speech focused on directors as gatekeepers, self-reporting of wrongdoing,...more

Exclusive Forum Provisions: A New Item for Corporate Governance and M&A Checklists

Public companies increasingly are adopting “exclusive forum” bylaws and charter provisions that require their stockholders to go to specified courts if they want to make fiduciary duty or other intra-corporate claims against...more

Delaware Court Clarifies Director and Officer Liability in M&A Transactions

In Chen v. Howard-Anderson, 87 A.3d 648 (Del. Ch. 2014), the Delaware Court of Chancery (Laster, V.C.) held that directors and officers can be held liable for their participation in a change-of-control transaction if their...more

What Good Can Come From Letting The Indifferent and Undecided Hold Sway?

I’ve written many posts on the subject of voting because it seems so straightforward and yet turns out to be complex. In tackling any voting problem, it is important to know and understand the applicable voting rule. An...more

Using Corporate Bylaws and Charters to Set the Rules for Shareholder Litigation

Recent court decisions, including the Delaware Supreme Court’s opinion earlier this month in ATP Tour, Inc. v. Deutscher Tennis Bund, have focused new attention on the use of corporate bylaws and charters to establish the...more

Some Things That The Corporations Code Doesn’t Tell You About Annual Meetings

Annual meetings of shareholders are important. If a corporation fails to hold one for a period of 60 days after the designated date or, if no date is designated, for 15 months, then the superior court may summarily order a...more

Delaware Supreme Court Upholds Fee-Shifting Bylaw

On May 8, in ATP Tour v. Deutscher Tennis Bund, the Delaware Supreme Court held that a board-adopted bylaw shifting attorneys’ fees and costs in intra-corporate litigation to unsuccessful plaintiffs is facially valid. Due to...more

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