Topic: Corporate Governance

ISS and Glass Lewis Announce Flexibility In Corporate Governance Policies During COVID-19 Crisis

ISS and Glass Lewis have issued guidance on their corporate governance voting policies that ‎adds flexibility to reflect the realities of the impact of the COVID-19 crisis and the challenges in ‎responding to it. Public companies will want to consider this guidance since many institutional ‎investors are influenced in their voting by the positions taken by these leading proxy advisory ‎firms.‎

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Update: SEC Extends 45-Day Filing Relief Through July 1, 2020

On March 25, 2020, the SEC modified its March 4th order described here, which allowed extended filing deadlines for disclosure reports due between March 1 and April 30, 2020.  The modified order covers all filings due on or before July 1, 2020.

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Delaware Supreme Court Upholds Federal Forum Selection Provisions

The Delaware Supreme Court, on March 18, 2020, in Salzberg v. Sciabacucchi, reversed the decision of the Court of Chancery and upheld the validity of a forum selection provision in the certificate of incorporation of a Delaware corporation requiring claims under the Securities Act of 1933 to be brought in federal courts.

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SEC Coronavirus Guidance on Shareholder Annual Meeting Engagement

On March 13, 2020, the SEC issued guidance regarding the effect of the coronavirus (COVID-19) ‎on upcoming annual shareholder meetings. The SEC advised that a company that has already ‎mailed and filed its proxy materials can change the date, time, or location (including changing to a ‎‎“virtual (or “remote-only”) meeting”) of its annual meeting without mailing additional proxy ‎materials so long as that company promptly‎

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Attempt to Limit Directors’ Liability for Setting Their Own Compensation is Rejected

A recent Delaware Court of Chancery decision ‎ on a challenge to Goldman Sachs directors’ ‎setting their own compensation is interesting because the court rejected the company’s attempt to ‎make an end run around current law. The stockholder-approved compensation plan included a ‎novel provision limiting the directors’ liability if they acted “in good faith.”‎

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SEC Continues to Grapple with Mandatory Arbitration Hot Potato

The Securities and Exchange Commission has again had to confront how to react to a mandatory arbitration provision that would have the effect of denying investors the ability to pursue federal securities law claims as a class action in a federal court.  Mandatory arbitration provisions are controversial as a policy, legal and political matter and have presented the SEC with challenges. 

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SEC Issues New C&DIs Regarding Disclosure of Board Qualifications and Diversity Characteristics

On February 6, 2019, the SEC staff issued two new identical C&DIs that apply to Item 401 of Regulation S-K, Question 116.11, and Item 407 of Regulation S-K, Question 133.13.  The new interpretation provides guidance on disclosure when a director or a director nominee voluntarily provide self-identified diversity characteristics, such as their race, gender, ethnicity, religion, nationality, disability, sexual orientation, or cultural background, and the director or nominee has consented to disclosure of these diversity characteristics.

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