Category: Corporate Governance

Proxy access — is private ordering now taking front and center stage?

by Cydney Posner As reported by thecorporatecounsel.net blog, on December 1, the SEC staff granted the no-action request of Whole Foods Market, Inc., allowing the company to omit from its proxy statement a non-binding shareholder proposal to permit proxy access.  The proposal was submitted by James McRitchie, who delegated all authority […]

CII and pension funds make their voices loud and clear over fee-shifting bylaws

by Cydney Posner As noted in this Reuters post, the Council of Institutional Investors, along with a number of individual pension funds and other institutional investors, have chimed in on the debate currently roiling the Delaware bar over fee-shifting bylaws, sending letters to the governor of Delaware, the chair of the […]

Cyberthieves collect confidential information, apparently to conduct insider trading

by Cydney Posner Here is an unnerving warning from FireEye, a cybersecurity firm, discussed in this article from MarketWatch, regarding a sophisticated, native-English-speaking group, designated FIN4, that has targeted almost 100 public companies, primarily healthcare and pharma, to compromise their confidential information. What’s unusual here is that the apparent purpose of […]

Another twist on restrictive bylaw provisions: minimum support thresholds

by Cydney Posner In this article, Reuters discusses yet another creative permutation on restrictive bylaw provisions — requiring that plaintiffs in certain shareholder litigation provide consents to the litigation from shareholders holding shares in excess of a minimum threshold. The problem the bylaw seeks to address is that shareholder litigation is […]

NACD releases “Critical Issues for Board Focus in 2015”

by Cydney Posner The National Association of Corporate Directors has just released “Critical Issues for Board Focus in 2015.”  The issues list was developed following the NACD’s dialogues with a number of major institutional investors and roundtable discussions among investors and committee chairs of Fortune 500 companies.  The publication presents […]

Four questions audit committees should ask their audit firms

by Cydney Posner Audit Committee members may be interested in this release issued by the PCAOB in August 2012 designed “to assist audit committees in (1) understanding the PCAOB’s inspections of their audit firms and (2) gathering useful information from their audit firms about those inspections.” The PCAOB regularly performs inspections of […]

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 […]