On July 16, 2020, Delaware adopted new amendments to its public benefit corporation statute, continuing a trend to make this relatively new corporate form more accessible. The amendments, among other things, (i) reduce impediments to use of the public benefit corporation form by eliminating supermajority voting requirements...
The COVID-19 pandemic has underscored the importance of board-level oversight of workforce issues at public companies. How boards have managed mandatory shutdowns and the ongoing return to work are likely to have a significant and lasting impact on company reputation and performance...
It is well-settled that the assets of non-qualified deferred compensation programs are subject to the claims of the company’s general creditors. Securing the assets with a Rabbi Trust does nothing to change that answer...
In the context of the current COVID-19 pandemic, however, an increased focus on Board oversight, and the creation of a good record of Board oversight, is especially important...
The COVID-19 pandemic has had a dramatic impact on the management of organizations, including throwing managers at all levels into an “all-hands-on-deck” reactive mode. In large measure, the immediate focus of management-level employees has been on business continuity...
With annual reports on Form 10-K publicly filed and first quarter earnings releases getting underway, proxy season – the annual practice of filing and distributing proxy statements, reserving meeting venues and courting shareholders – is now in full effect...
The CARES Act restricts how much executive compensation can be paid by employers that avail themselves of loans and loan guarantees from the US Treasury’s Exchange Stabilization Fund under Title IV of the CARES Act. Employers seeking this relief need to carefully assess the impact of these restrictions before applying for loans or loan guarantees. Participation in the Exchange Stabilization Fund is conditioned on complying with the executive compensation restrictions...
Yesterday, the Securities and Exchange Commission announced awards totaling over $570,000 to two whistleblowers paid out by the investor protection fund. The first will receive a whistleblower award of approximately $478,000, and the other will receive the remainder...
On December 30, 2019, New York governor Andrew M. Cuomo signed legislation requiring the New York State Department of State, partnered with the Department of Taxation and Finance, to conduct a study of the proportion of female members on the boards of domestic and foreign corporations licensed to do business in New York. The “Women on Corporate Boards Study” law requires corporations to report the number of directors on their boards and how many of those directors are women...
In a win for employers, the Second Circuit Court of Appeals recently held that whistleblower claims under the Dodd-Frank Act are arbitrable. Daly v. Citigroup Inc. , 939 F.3d 415 (2d Cir. 2019). The Second Circuit also held that a plaintiff’s failure to exhaust administrative remedies related to a Sarbanes-Oxley Act claim serves as a jurisdictional bar, warranting dismissal of the claim...
On November 1, Glass Lewis released its 2020 US Proxy Paper Guidelines. The updates to the voting guidelines primarily add additional factors that Glass Lewis will review when evaluating proposals and issuing its voting recommendation for shareholders...
In High River Limited Partnership v. Occidental Petroleum Corp., C.A. No. 2019-0403-JRS, 2019 WL 6040285 (Del. Ch. Nov. 14, 2019) (Slights, V.C.), the Delaware Court of Chancery held that a stockholder’s mere disagreement with a business decision of a board of directors and intent to pursue a bone fide proxy contest is not a “proper purpose” to support a demand to inspect the corporation’s books and records ...
In late September, Senators Chuck Grassley (R-Iowa), Tammy Baldwin (D-Wis.), Joni Ernst (R-Iowa), and Dick Durbin (D-Ill.) introduced the Whistleblower Programs Improvement Act , which would protect financial whistleblowers who report internally from retaliation. This bill, which mirrors the Whistleblower Protection Reform Act of 2019 and passed in the House of Representatives in May, appears similarly aimed at clarifying that the Dodd-Frank Act’s anti-retaliation provision applies equally to employees who ...
Over the past two years, there has been an uptick in the number of lawsuits challenging director and executive compensation. Cases such as In Re: Investors Bancorp , Stein v. Blankfein , Hertz v. Frissora and, most recently, Tornetta v. Musk are setting new precedent and introducing novel legal theories. This alert highlights certain recent lawsuits in this area and sets out considerations for boards setting executive and director compensation in light of these cases...
In re BGC Partners, Inc. puts controlling stockholders on notice that their professional and personal ties to board members may undermine the purported independence of those board members...
One of the most important decisions that a startup entrepreneur can make is creating a board of directors that will assist the entrepreneur in growing and governing the business. A company’s board of directors is tasked with overseeing and advising management, making key decisions about the company’s business strategies, and representing the interests of the company and its stockholders...
The Third Circuit recently issued an important decision for private fund advisors who serve on corporate boards. In a precedential decision on a matter of first impression, the Third Circuit distinguished the role of nonvoting board observers from the function of formal corporate directors. And while the decision was issued in the context of liability for alleged violations of the securities laws, the Third Circuit suggested the analysis may apply more broadly to other situations involving board observers...
Last week, the United States Court of Appeals, Third Circuit issued a ruling in Obasi Investment Ltd v. Tibet Pharm., Inc which pronounced that under Section 11 of the Securities Act of 1933, a board observer is not a person “performing similar functions” as a director on a corporate board...
Under the SEC Whistleblower Program, the SEC is required to pay awards to eligible whistleblowers who voluntarily provide the SEC with original information that leads to successful enforcement actions resulting in monetary sanctions totaling more than $1,000,000. A whistleblower may receive an award of between 10% to 30% of the total monetary sanctions collected...
In Stobart v Tinkler [2019] EWHC 258 (Comm), the high court has taken an extremely restricted view of the freedom of a dissident director to take his case outside the boardroom. At the same time, the court largely endorsed the freedom of the board to silence that director with respect to public statements...
How to Report Accounting Fraud and Earn an SEC Whistleblower Award Wednesday, February 6, 2019 SEC Targets Accounting Fraud in Financial Reporting In the early 2000s, the U.S. Securities and Exchange Commission (SEC) was abruptly reminded of the dangers of accounting fraud after Enron and WorldCom collapsed within months of each other.
Institutional Shareholder Services (ISS) has issued new FAQs addressing U.S. Executive Compensation Policies and U.S Equity Compensation Plans for the 2019 proxy season, for annual meetings held on or after February 1, 2019. Significant executive compensation and equity plan updates for U.S. listed companies are summarized below...
ISS and Glass Lewis Update Proxy Voting Guidelines for 2019 Summary Institutional Shareholder Services Inc. and Glass, Lewis & Co., LLC both recently issued their annual proxy voting guideline updates. As revised, these guidelines have important implications for companies preparing for the 2019 proxy season...
The SEC Whistleblower Program continued its remarkable run of success in fiscal year 2018. As detailed in its 2018 Annual Report to Congress , the SEC Whistleblower Program has been extraordinarily successful in enabling the SEC root out securities fraud and protect investors...