Corporate Governance

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Forum Selection Bylaws Gain Ground

As we previously discussed (Should Your Board Adopt an Exclusive Forum Bylaw?, July 2013; The Future of Exclusive Forum Bylaws, November 2013), forum selection bylaws (also sometimes called exclusive forum bylaws) have become...more

Securities and Governance Update

Each year, thousands of businesses and investment funds raise billions of dollars in capital through unregistered offerings under Rule 506—the most widely used exemption under Regulation D under the Securities Act of 1933, as...more

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

Third parties: 4 FCPA takeaways for working with distributors

There is a growing appreciation that companies can be held liable for the actions of third parties under the FCPA and other anti-corruption laws. In this article, we highlight four key challenges and related “cures” for...more

The Origins of the FCPA: Lessons For Effective Compliance and Enforcement - Part Four

This is the fourth part of an occasional series. The first is available here, the second here and the third here. The entire paper will be published by Securities Regulation Law Journal early next year. The volunteer...more

Joint Venture Critical Issues: Formation, Governance, Competition And Exits

The joint venture is a vehicle for the development of a business opportunity by two or more entities acting together, and will exist if the parties have: (1) a community of interest in the venture, (2) an agreement to share...more

Charged with Interpreting “Officer” in Corporate By-Laws, Third Circuit Decides 12 Random People Are Better Suited for the Job

Here are two things I thought when I was a kid: (1) Quicksand was a real threat, something that could suck me into the Earth if I wasn’t careful when walking around outside. I don’t know if this was a function of too many...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

Governance, Compliance and Simplicity

I have always admired the ability of intelligent people to explain complex ideas in simple terms. Prosecutors have to explain complex facts and crimes to a jury....more

Top Five Governance & Compliance Hot Topics For General Counsel

On September 18, 2014, InsideCounsel magazine held a corporate counsel conference to facilitate discussions on current legal issues. In sessions on governance and compliance, industry experts addressed the current top...more

Corporate and Financial Weekly Digest - Volume IX, Issue 37

In this issue: - Council of Institutional Investors Issues Report on Board Evaluation Disclosure - FINRA Revises Proposal to Adopt Consolidated FINRA Rule 2231 - IRS Considers Whether Management Fees of...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

The Origins of the FCPA: Lessons For Effective Compliance and Enforcement - Pt 3

The foreign payments cases held the organization and the individuals involved accountable while improving corporate governance for the benefit of the shareholders in the future. A series of cases followed the initial filings....more

Recent Decision Confirms That 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

OCC Finalizes Heightened Standards for Large Financial Institutions

On September 2, the OCC published its final guidelines to purportedly strengthen the governance and risk management practices of large financial institutions. The guidelines provide that covered institutions should establish...more

OCC Issues Final Guidelines Calling for Heightened Standards for Governance and Risk Management of Large Financial Institutions

The OCC issued final guidelines (the “Final Guidelines”) that call for strengthened governance and risk management practices at the following categories of large financial institutions with $50 billion or more in average...more

Behind the Veil and the Blurred Distinctions of Entity Liability

As corporate counsel, you are well aware that the practice of creating, expanding, or reorganizing corporate entities and their subsidiaries is fraught with legal peril, both for your client and its officers and directors....more

OCC Finalizes its Heightened Standards for Large Financial Institutions

On September 2, the OCC published final guidelines to strengthen the governance and risk management practices of large financial institutions. The guidelines apply to insured national banks, insured federal savings...more

Board of Directors and FCPA Oversight – An Internal Control Under SOX, Part II

In Part I of this two-part post regarding a Board of Director’s Role in Foreign Corrupt Practices Act (FCPA) oversight from the internal controls perspective, I reviewed how a Board might have independent liability for its...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

When A Corporation Dissolves, Do The Directors Become Zombies?

Even though a corporation has dissolved, there may still be a need to take certain corporate actions. For example, the corporation may need to continue to prosecute or defend lawsuits, file a final franchise tax return, or...more

Does The Corporations Code Permit “Boards R Us”?

In an article published last summer, Professors Stephen Bainbridge and M. Todd Henderson argued that “significant gains that could be realized by permitting firms (be they partnerships, corporations, or other business...more

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