Latest updates

EY Centre for Board Matters identifies investors' top priorities for companies in 2018
Cooley LLP
  • USA
  • March 12 2018

​The EY Centre for Board Matters has identified investors' top priorities for companies in 2018, based on its annual investor outreach involving interviews with institutional investors. According to EY, the top investor priorities include board composition, with a particular focus on enhanced diversity; board-level expertise that is more aligned with business goals; and enhanced attention to talent and human capital management.

Equity part of your company's compensation plan? Don't forget about HSR
Cooley LLP
  • USA
  • February 19 2018

The Federal Trade Commission (FTC) has issued its annual inflation-adjusted thresholds for determining whether an acquisition of voting securities requires prior notification under the Hart-Scott-Rodino Act. If any person or entity will hold voting shares that exceed the set amount as a result of an acquisition, all parties must submit a filing and observe a mandatory waiting period before acquiring the shares. The FTC also revised the potential maximum penalty for violations of the act.

Shareholder proposal to exclude impact of share buybacks on executive compensation
Cooley LLP
  • USA
  • February 12 2018

The new tax act is expected to trigger a spike in the levels of stock buybacks. Since one of the most prolific proponents of shareholder proposals recently submitted a proposal to eliminate the impact of stock buybacks in determining executive compensation, it seems likely that this type of proposal may resurface more frequently, especially if, in light of the recent tax law change, the level of stock repurchases resumes a sustained upward climb.

NACD public company governance survey examines key trends and board priorities
Cooley LLP
  • USA
  • January 22 2018

The National Association of Corporate Directors has released the results of its 2017-2018 Public Company Governance Survey of over 1,000 directors and executives. The survey looked at directors' outlooks for 2018 on key business trends and critical board priorities, the board's role in overseeing an organisation's culture, the state of board risk oversight – especially cybersecurity risk – and the growing challenge of hedge fund activist investors.

New guidance from SEC Division of Corporation Finance relating to adoption of new accounting standards
Cooley LLP
  • USA
  • January 15 2018

The Securities and Exchange Commission Division of Corporation Finance recently revised some of the guidance in its Financial Reporting Manual relating to the adoption of new accounting standards. One revision relates to the adoption of a new accounting standard in the context of a significant acquisition and the second relates to transition period accommodations for emerging growth companies. This new guidance could take on particular significance in the context of the new revenue recognition standard.

Your start-up received an audit notice – what's next?
Cooley LLP
  • USA
  • January 08 2018

While no one likes receiving an audit notice in the mail, the process can be less daunting for parties that understand some of the basics, including if and when an audit will happen, what is likely to happen during an audit, whether the Internal Revenue Service can extend the statute of limitations and what to do if an agent has made a mistake.

Do performance metrics based on relative total shareholder return transform an equity award into a lottery ticket?
Cooley LLP
  • USA
  • December 04 2017

According to a recent report, relative total shareholder return (rTSR) is still the most common performance measure used in long-term incentive plans for chief executive officers among S&P 500 companies. However, it has been suggested that rTSR does not adequately reflect individual or company performance, but rather frequently reflected market or industry trends as a whole. The report advocates a different approach based on operating performance measures, such as revenue growth.

2017 Audit Committee Transparency Barometer from Centre for Audit Quality shows continued increase in enhanced disclosures
Cooley LLP
  • USA
  • November 27 2017

The Centre for Audit Quality and Audit Analytics recently posted their annual Audit Committee Transparency Barometer, which measured the quality of proxy disclosures regarding audit committees among companies in the S&P Composite 1500. The report shows continued voluntary enhancements to transparency and broadly increased disclosure around audit committee oversight of the external auditor.

'Tis the season: SEC Division of Corporation Finance issues new SLB regarding shareholder proposals
Cooley LLP
  • USA
  • November 20 2017

Just in time for the beginning of proxy and shareholder proposal season, the Securities and Exchange Commission Division of Corporation Finance has posted Staff Legal Bulletin (SLB) 14I on Shareholder Proposals. The SLB addresses the scope and application of the rules regarding ordinary business and economic relevance exclusion, the proposals submitted on behalf of shareholders (shareholder proposals by proxy) and the use of graphics and images.

NACD report on culture as a corporate asset couldn't be more timely
Cooley LLP
  • USA
  • November 06 2017

Recently, corporate cultures – or, more particularly, serious lapses in the same – have emerged as flashpoints, often with significant negative press coverage and severe economic consequences. A timely new report from the National Association of Corporate Directors suggests that boards should be paying more attention to the oversight of company culture – not just for scandal avoidance, but also "as a way to drive sustained success and long-term value creation".

Will board diversity be the new proxy access?
Cooley LLP
  • USA
  • October 02 2017

In 2014 New York City (NYC) Comptroller Scott Stringer, who oversees the NYC pension funds, submitted proxy access proposals to 75 companies – and ignited the push for proxy access at public companies across the United States. The NYC Comptroller's Office recently announced the Boardroom Accountability Project 2.0, which will focus on corporate board diversity, independence and climate expertise. Will Project 2.0 have an impact comparable to that of the drive for proxy access?

Facial validity of fee-shifting provisions in bylaws of Delaware non-stock corporation
  • USA
  • August 11 2014

The Delaware Supreme Court recently held that fee-shifting provisions in the bylaws of a Delaware non-stock corporation were valid on their face and were enforceable against members who joined before their adoption. The court further stated that adopting fee-shifting provisions with an intent to deter litigation would not necessarily render such bylaws unenforceable.

Court Converts Voting Preferred Stock into Non-voting Common Stock
  • USA
  • January 19 2009

In a recent decision the Delaware Chancery Court fashioned an extraordinary remedy by converting the convertible preferred stock issued by Loral Space and Communications Inc to its controlling stockholder into non-voting common stock based upon a court-determined 'fair price' for Loral common stock.

Delaware Rulings Underscore Importance of Advance Notice Bylaws
  • USA
  • October 27 2008

Two recent decisions of the Delaware Court of Chancery, the nation’s pre-eminent business court, concern one of a corporation’s key tools to regulate investor activism: advance notice bylaws, which control the process and timing for shareholder nominations to the board.

Designated Directors and Designating Investors: Early Planning Is Key
  • USA
  • June 16 2008

Investors acquiring significant equity positions in a company typically try to negotiate agreements which will allow them to protect their investment - the most desirable protection is often thought to be the right to designate a director to the company’s board. Although it may seem that a designated director will benefit the investor, such a designation carries with it considerable risks and uncertainties.

SEC Reform and Corporate Engagement Shape Shareholder Proposal Process
  • USA
  • March 31 2008

Shareholder proposals continue to be the focus of investor activism, boardroom attention and Securities and Exchange Commission (SEC) reform. Two forces appear to be shaping the 2008 proxy season: the SEC’s rulemaking and the trend towards more meaningful corporate engagement with investor groups.

The Empire (State) Strikes Back
  • USA
  • May 30 2006

The New York legislature has approved a bill which significantly toughens the publication rules to which limited liability entities are subject. The bill and a further proposed amendment may be seen as a response to what was perceived as a widespread rebellion against the publication requirement, which some commentators argue merely subsidizes the local print media.

Peter S Golden
Fried Frank Harris Shriver & Jacobson LLP
  • New York NY
  • USA
Caplin & Drysdale, Chartered
Caplin & Drysdale, Chartered
Sidley Austin LLP
Sidley Austin LLP