No petition for cert in Natl Assoc. of Manufacturers v. SEC, the conflict minerals case
by Cydney Posner No reason to keep checking the SCOTUS website for the SEC’s cert petition in Natl Assoc. of Manufacturers v. SEC, the conflict minerals case. According to this letter from Attorney General Loretta Lynch to House Speaker Paul Ryan (courtesy of thecorporatecounsel.net blog), “[a]lthough the Commission defended the constitutionality of […]
Will institutional holders begin to follow the activist playbook on their own initiative?
by Cydney Posner To date, for the most part, when it comes to shareholder activism, the heavy lifting has been done by hedge fund activists. Now, as discussed in this NYT DealBook column, institutional shareholders may be stepping out on their own.
SEC Chief Accountant addresses the new revenue recognition standard in the context of the life sciences industry
by Cydney Posner In late March, SEC Chief Accountant, James Schnurr, delivered remarks before the 12th Annual Life Sciences Accounting and Reporting Congress. The remarks addressed the new revenue recognition standard and internal control over financial reporting as applied in particular to life sciences companies, and also cautioned companies regarding […]
Scrutiny of director tenure continues: is it the next cause célèbre?
by Cydney Posner The scrutiny of pale, stale and male boards continues, this time focused on the “stale,” that is, long-tenured directors. According to the WSJ, institutional investors are increasingly questioning whether more turnover on boards might be appropriate.
Senate bill introduced to reform 13D reporting by closing “loophole” exploited by activist hedge funds
by Cydney Posner Soon after the Wausau Paper Company was targeted by a hedge fund activist in 2011, Wausau’s paper mill in Brokaw, Wisconsin was shuttered by the embattled company. The mill had been established at the end of the 19th century and, since its founding, had provided employment for […]
Corp Fin allows exclusion of a conflicting shareholder proposal under Rule 14a-8(i)(9): does it represent a strategy for the future?
by Cydney Posner Well, we finally have some insight into what the Corp Fin staff had in mind in Staff Legal Bulletin 14H – of course, that’s the SLB in which Corp Fin narrowed the application of Rule 14a-8(i)(9), the exclusion for conflicting proposals. It turns out that what they had […]
We identified our shareholder proposal on our proxy card as “Shareholder Proposal.” Does that work?
by Cydney Posner Uh, no. In a new CDI, Corp Fin tells us how not to identify proposals on proxy cards, particularly shareholder proposals. Rule 14a-4(a)(3) requires that the form of proxy “identify clearly and impartially each separate matter intended to be acted upon.” But, when it comes to shareholder […]
Is it a mistake to insist that CEO pay be performance-based?
by Cydney Posner It goes without saying that, to many, the sine qua non of executive compensation is performance-based pay. From proxy advisory firms to institutional holders to the drafters of Dodd-Frank, the question of whether CEO compensation is aligned with performance is a key measure of whether compensation is […]
Nasdaq resubmits proposal for disclosure of “golden leash” arrangements
by Cydney Posner On March 15, Nasdaq resubmitted its “golden leash” disclosure proposal to the SEC. As discussed in this Pubco post, the proposal, which originally was rejected on technical grounds, relates to third-party compensation of directors in connection with their candidacy for or service on company boards. These “golden leash” […]
Is it just a brush-back pitch or will the SEC take steps to rein in the use of non-GAAP financial measures?
by Cydney Posner Reporting on an industry conference sponsored by the U.S. Chamber of Commerce, the WSJ advises that SEC Chair Mary Jo White is considering whether to restrict the use of non-GAAP financial measures. In a speech to the conference, Chair White advised the audience that “[y]our investor relations folks, your […]
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