Category: Corporate Governance

A little inside scoop in the ATP fee-shifting bylaws case

by Cydney Posner Today, at the PLI Securities Regulation Institute, the Honorable Jack Jacobs, formerly a Justice of the Delaware Supreme Court, was asked to comment on ATP Tour, Inc. v. Deutscher Tennis Bund, the Delaware Supreme Court case holding that a “fee-shifting” bylaw adopted by a board was “facially […]

SEC to issue concept release regarding audit committees

by Cydney Posner Compliance Week reports  that SEC Chair Mary Jo White, speaking before the Investor Advisory Group of the PCAOB, said that the SEC plans to Issue a concept release in early 2015 “exploring possible avenues for elevating the work of public company audit committees.” The release is expected to address many […]

Director of SEC whistleblower office encourages staff to find whistleblower retaliation cases

by Cydney Posner According to Law360, the director of the SEC’s whistleblower office, Sean McKessy, is exhorting the staff of that office to set a high priority on cases involving employer retaliation for whistleblower complaints. During an interview,  McKessy “said his office was actively looking for cases to bring against […]

Will the SEC intercede in the battle over fee-shifting bylaws?

“The first trickle through a leak in the dam” that eventually causes the dam to collapse is how Professor John Coffee characterized the adoption of fee-shifting bylaw or charter provisions by 24 companies since May of this year. The “dam” here is the practice of private enforcement, as a supplement […]

Will the new Coca-Cola equity plan guidelines become the “classic” model or just “new Coke”?

by Cydney Posner Coca-Cola’s decision to scale back the use of its equity compensation plan and adopt “equity stewardship guidelines” has certainly received a lot of press – for an equity plan, that is. (See for example, these pieces, in the WSJ, here and here, thecorporatecounsel.net blog, Reuters , Bloomberg, […]

Are stock buybacks hurting the economy?

by Cydney Posner According to “Companies’ Stock Buybacks Help Buoy the Market,” by Dan Strumpf, published in the WSJ on September 15, 2014, “[c]ompanies are buying their own shares at the briskest clip since the financial crisis, helping fuel a stock rally amid a broad trading slowdown. Corporations bought back […]

More Women on Boards: It’s the Economy, Stupid

by Cydney Posner When the Chair of the SEC and the editors of Bloomberg both think it’s worth getting on their soapboxes to promote the same issue, maybe it’s time for public companies to pay attention. The issue? Women on Boards. Earlier this month, the editors of Bloomberg published “Companies […]

No Delaware court decision re fee-shifting bylaw on an as-applied basis

by Cydney Posner It now appears that the Delaware court will not address the as-applied validity of a fee-shifting bylaw in the case involving Hemispherx. (As discussed in this post and this Cooley Alert, the Delaware Supreme has already ruled in another case that a “fee-shifting” bylaw adopted by the […]

Briefs now filed in support of and in response to petition for en banc rehearing in conflict minerals case

by Cydney Posner On August 15, 2014, in the conflict minerals case, National Association of Manufacturers v. Securities and Exchange Commission (D.C. Cir. 2014), Intervenors-Appellees Amnesty International filed a brief in support of its petition for an en banc rehearing in that case. On Friday, September 12, on the order […]

SEC sends a message — to executives and their companies

by Cydney Posner In October  2013, SEC Chair Mary Jo White gave a speech at the Securities Enforcement Forum in which she declared an “enforcement mission” of the SEC to be implementation of the “broken windows” theory of crime deterrence made famous decades ago in NYC: “The [‘broken windows’] theory is […]