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Pullback on Consideration of Board Diversity by ISS, BlackRock and Vanguard

Citing recent DEI developments in the U.S., ISS released its Statement on Diversity Factors in Director Elections on February 11, 2025 announcing that it will “indefinitely halt consideration of certain diversity factors in...more

Nasdaq Concedes Invalidation of Board Diversity Rule by Divided Fifth Circuit en Banc

On December 11, in a 9-8 ruling, the Fifth Circuit invalidated the SEC’s approval of the Nasdaq board diversity rule in Alliance for Fair Board Recruitment v. SEC. Invoking the “major questions” doctrine, the court ruled the...more

Why Can’t We Be Friends?

Recently, the SEC announced settled charges against a former chairman/CEO and director of Church & Dwight Co. Inc., for violating proxy disclosure rules by standing for election as an independent director without informing...more

SDNY Dismisses Majority of SEC Landmark Charges Against SolarWinds and CISO

On July 18, 2024, District Court Judge Engelmayer of the Southern District of New York issued his 107-page opinion and order dismissing most – but not all – of the landmark allegations of the SEC against SolarWinds Corp. and...more

Don’t Pull the Trigger on That Stock Trade Just Yet! Questions Counsel Should Ask Insiders Before They Trade; Topics to Cover When...

One of the routine duties of counsel for a public company is advising officers and directors on their trades in company stock and their SEC responsibilities when they leave. Because those discussions are routine, it may be...more

Tesla’s Super-charged Equity Award to Elon Musk Unplugged by Delaware Court Cautionary Tale for Boards and Executives

The Delaware Chancery Court invalidated a substantial equity award to Elon Musk – the largest in history. It applied the entire fairness test instead of the more deferential business judgment rule, finding that Musk...more

Recent Delaware cases clarify Caremark oversight duties for directors and executive officers

A claim for breach of the duty of oversight is known as a Caremark claim, after the landmark Delaware Court of Chancery decision in In re Caremark International Inc. Derivative Litigation (1996). Since then, Delaware courts...more

Universal proxies are here - are you ready?

As discussed in our November 17, 2021 post, management of public companies are required to use universal proxy cards for shareholder meetings involving most election contests held after August 31, 2022. This means that both...more

Reminder: Initial Board Diversity Matrix Now Required for Nasdaq Companies

All Nasdaq-listed companies must now disclose a board diversity matrix by the later of (1) August 8, 2022, or (2) the date the company files its proxy statement for the 2022 annual meeting of shareholders (or, if companies do...more

A few lessons for internal and outside counsel from the WorldCom collapse - 20 years later

It has now been 20 years since the historic collapse of WorldCom, Inc. (“WorldCom” or the “Company”). A review of the WorldCom collapse yields some continuing lessons for corporate counsel....more

2022 Proxy Season - More Quick Hits

In our November 2, 2021 blog post, we highlighted a number of considerations for the 2022 proxy season. Based on recent developments, the following are some additional items...more

SEC Approves Universal Proxy Card Rules; Proposes to Rescind Portions of July 2020 Amendments to Proxy Advisor Rules

Yesterday the SEC approved new proxy rules requiring the use of universal proxy cards by management and shareholders soliciting proxy votes for their candidates in non-exempt director election contests, as well as mandating...more

Excluding a Shareholder Proposal? Not So Fast…

The SEC’s Division of Corporation Finance recently published Legal Bulletin 14L (CF) (the “Bulletin”) providing updated guidance on excluding shareholder proposals under Rule 14a-8 under the Exchange Act.  Specifically, the...more

It’s Official: SEC Approves Nasdaq Board Diversity Proposal - Comply or Explain Why Not

The SEC today approved Nasdaq’s board diversity proposal, which will require each Nasdaq-listed company to publicly disclose information on the voluntary self-identified gender and racial characteristics and LGBTQ+ status of...more

Nasdaq amends its board diversity proposal

On Friday, Nasdaq submitted a revised proposal that addresses board diversity membership for listed companies. As discussed in our prior alert, Nasdaq had originally called for public companies - over a two-to-four year...more

Court ruling highlights confidentiality risks for non-employee directors who use outside email addresses

A recent decision by the Delaware Court of Chancery highlights risks for outside directors in using third-party email systems when communicating about confidential company matters. In that case, the court ruled that...more

New Nasdaq Listing Proposal: Add Diverse Directors or Explain Why Not

Nasdaq yesterday announced a proposed new listing rule that would require all Nasdaq-listed companies to publicly disclose consistent, transparent board diversity statistics in a specified form of matrix.  In addition, the...more

Consider Updates to D&O Questionnaire as Pressure Mounts for Voluntary Racial, Ethnic and Gender Diversity Disclosures

As the pandemic and racial unrest continue in 2020, companies should consider whether to update their D&O questionnaires to gather information in response to the growing pressure for voluntary diversity disclosures from...more

Securities and Corporate Governance Update – March 2019

SEC Penalizes Company for Non-Compliance with Equal or Greater Prominence Requirement in Earnings Releases - In late December, the SEC settled its first “equal or greater prominence” enforcement action under its non-GAAP...more

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