Governance Center Blog

Jan
01
2012

2011 Top Read Blog Posts

As 2011 comes to a close, we wanted to share with you the five most read blogs from The Governance Center Blog in 2011.  Executive compensation was the big topic of 2011 and we think it will continue to be in 2012 as the focus stays on pay practices in the 2012 proxy. (Don’t miss our upcoming Governance Watch webcast on January 5, which will focus on exec comp and the 2012 proxy.) We think we’ll see more on Dodd-Frank in 2012 as the SEC begins rulemaking. And sustainability will be an increasingly important and public topic for boards. What are you expecting for 2012? Read the rest of this entry »

Sep
13
2011

Worth Reading: Proxy Access Next Steps

Now that Rule 14a-11 (mandatory shareholder proxy access under the Dodd-Frank Act) is dead for at least the next proxy season, it has become apparent that the focus will be on the amended Rule 14a-8 (private ordering for proxy access shareholder proposals). Today is supposed to be the day the amended rule goes into effect, pending the final decision in the U.S. Chamber of Commerce/Business Roundtable vs. SEC after the agency decided not to challenge the July 22 decision.

The way that new rule is written, you can see why some shareholder activists and law firms are preparing for a busy shareholder proposal proxy season in 2012 starting this week. The new rule states that any shareholder having held $2,000 in company stock for at least a year would be allowed to propose amending a company’s bylaws to allow shareholder proxy access for director nominations. If approved, the company would have to allow proxy access in the subsequent proxy season. This would limit proxy access to a company-by-company basis, which is known as private ordering. Read the rest of this entry »

Sep
09
2011

2012 Proxy Access Shareholder Proposal Wave Can Commence Next Week

You can expect institutional shareholders to start writing shareholder proposals that would call for proxy access procedures for next proxy season as soon as next week. That’s because as of Sept. 13 the amended rule that is part of the Dodd-Frank Act shareholder proxy access rules will go into effect.

Many of these shareholders and the attorneys working with them basically got some clarity on proxy access this week when SEC Chair Mary Schapiro announced that the rulemaking body will not appeal the U.S. Court of Appeals for the D.C. Circuit’s decision to vacate Rule 14a-11. (The court ruled to vacate the rule mainly because it felt the SEC had not taken into account the costs to public companies.) That was the rule that was approved by the SEC last summer that would have given shareholders the ability to put forth their own director nominee slates to compete with company slates without a traditional proxy fight. Read the rest of this entry »

Aug
26
2011

Could SEC Whistleblower Bounty Program Be in Plaintiff Bar Crosshairs?

If you think the federal appeals court decision to strike down the new SEC proxy access rule was the only salvo in the Corporate America’s fight against regulatory reform measures included in the Dodd-Frank Act, think again. From what I can gather, it seems support is growing to throw out the whistleblower bounty program rules as well. And that just might be the beginning.

In the past month, there have been two publications that allude to the possibility of business groups using the same argument model in the U.S. Chamber of Commerce/Business Roundtable lawsuit that successfully struck down the shareholder director nomination rules (AKA shareholder proxy access). Also, a partner and senior associate of the law firm that represented the chamber in the proxy access suit has authored an article that rails against the new SEC whistleblower rules, although it does not mention litigation as a way to fight the SEC. Read the rest of this entry »

Aug
09
2011

E&Y Survey: Uniform Standard for Broker-Dealers, FINRA Rules Worrisome

While the new Dodd-Frank Wall Street Reform and Consumer Protection Act and Financial Industry Regulatory Authority (FINRA) rules that would affect broker-dealers have either not been written or implemented yet, many of those who would be affected expect there to be a huge impact, according to a new study released by Ernst & Young.

Of the four major rulemaking decisions being mulled by the SEC, FINRA and the FDIC, the uniform fiduciary standard and FINRA’s know-your-customer (KYC) and suitability rules (effective date was extended to July 9, 2012) have caught the attention of the broker-dealers the most. (The other two rulemaking decisions mentioned in the survey are OTC derivatives regulation and the so-called Paul Volcker Rule – ban on proprietary trading.) The Ernst & Young survey, which included responses from 42 broker-dealers from March 20-May 3, found that 71.5 percent of respondents the FINRA rules would result in a high impact on their compliance and control processes while 64.3 percent believed the uniform fiduciary standard, although there is no planned specific rulemaking scheduled, would have a high impact. Read the rest of this entry »

Aug
03
2011

ISS Agrees: Expect More Proxy Contests, Vote No Campaigns in 2012

I guess I was on to something last month when I blogged (Proxy Access Court Decision Fallout: Bank on More Proxy Contests) that there will most certainly be an uptick in proxy contests and/or shareholder proposals calling for proxy access in 2012. Institutional Shareholder Services (ISS) concurs with my theory in its 2011 U.S. Postseason Report on the recent concluded proxy season.

In its Aug. 1 Preliminary 2011 U.S. Postseason Report, ISS made many observations about the 2011 proxy season and included some predictions for the 2012 proxy season. Among its predictions, it said, “the unavailability of a market-wide access regime could mean a rise in traditional boardroom challenges via proxy fights and a jump in ‘vote no’ campaigns against directors.” It made this statement in relation to the July 22 U.S. appeals court ruling that struck down the SEC’s proxy access rule [at least Rule 14a-11] that was challenged by the U.S. Chamber of Commerce and Business Roundtable. Read the rest of this entry »

Jul
07
2011

Wilcox: Decrease in Shareholder Activism, Low Negative Say on Pay Votes Sign of Progress

What you see isn’t necessarily what you get when it comes to the 2011 proxy season, according to John Wilcox, chair of international corporate governance consulting and advisory firm Sodali Ltd. Specifically, in a recent Webcast Wilcox warned viewers not to be deceived by the perceived decrease in shareholder activism and low rate of negative advisory executive compensation, or Say on Pay, votes this year.

“While it is true that shareholder activism is at a lower level in 2011 than last year [according to FactSet’s SharkRepellent, 44 proxy fights have been announced as of April 27 compared to 88 in April 2009],” Wilcox told Alan Rudnick, program chair of The Conference Board Directors’ Institute during the June 29 Webcast [Registration required; free to Conference Board members]. “This can be interpreted as a sign of failure. We should look at it in a different way. Actually, this should mean that communication between shareholders and companies is improving. It might mean they have resolved their differences.” Read the rest of this entry »

Jun
10
2011

The Conference Board Webcast: Say on Pay About Substance, Not Election

By now, you’ve probably seen all the figures related to the first year of Say on Pay and Say When on Pay votes for public U.S. companies as mandated under the Dodd-Frank Act. But do you know why investors voted the way they did and what companies should be doing to gear up for the second year, which could include shareholder proxy access?

Well, we at The Conference Board Governance Center got some of those answers earlier this week during the first of a three-part Webcast series called the 2011 Proxy Season: Conversations with Shareholders. Naturally, the first session focused on executive compensation. Joining our Directors’ Institute Program Chair Alan Rudnick on June 8 were Arthur H. Kohn, partner at Cleary Gottlieb Steen & Hamilton LLP; Stephen L. Brown, director and associate general counsel for TIAA/CREF; and James F. Reda, founder and managing director of James F. Reda & Associates LLC. To see the archived version of the first Webcast, click here to register or contact me at gary.larkin@conferenceboard.org. Read the rest of this entry »

Jun
06
2011

Q&A With Charles Elson — Bridging Board Gaps

Of the many reports that are out there on corporate governance, there is one that should be included in your “must read” pile this summer. Bridging Board Gaps is a 60-page report produced by a group of directors, business leaders, academics and former government officials that attempts to address board governance challenges following the 2008-2009 financial crisis.

Charles Elson, Chair of John L. Weinberg Center for Corporate Governance

Charles Elson, Chair of John L. Weinberg Center for Corporate Governance

Produced in the same vein as the National Association of Corporate Directors’ many Blue Ribbon task forces, the Study Group on Corporate Boards was chaired by Charles Elson, the chair of the John L. Weinberg Center for Corporate Governance at the University of Delaware; Glenn Hubbard, dean and professor of finance and economics at Columbia University’s Business School; and Frank Zarb, senior advisor of Hellman and Friedman and non-executive chair of Promontory Financial Group and former chair of the National Association of Securities Dealers. Elson also sits on The Conference Board Governance Center Advisory Board and sat on the Advisory Group for the Center’s Task Force on Executive Compensation in 2009.

The report, which was sponsored by the Columbia Business School and the University of Delaware’s Alfred Lerner College of Business and Economics and funded with a grant from The Rockefeller Foundation, was designed to “show how boards can fulfill their potential in various critical areas.” The report goes on to state, “After discussing dozens of general governance topics, we identified seven core problems. Then we drew solutions from the laboratory of real life, based on our own experience.” Read the rest of this entry »

May
31
2011

Worth Reading … Final SEC Whistleblower Rules

As you all may well know by now, the SEC has adopted its final rules to create a whistleblower bounty program as part of the Dodd-Frank Act by a familiar 3-2 split vote. The rules, which go into effect 60 days after they are submitted to Congress or published in the Federal Register, has begun a second wave of client memos from some law firms.

Some of the early memos focus on the controversy over the possibility that the new $452 million SEC whistleblower bounty program could undermine the work of internal audit and compliance programs that were strengthened following the passage of the Sarbanes-Oxley Act in 2002. The fact that the SEC did not mandate employees must first go through those internal compliance programs led many to argue (including Commissioners Troy Paredes and Kathleen Casey) the bounty program would cause many whistleblowers to bypass their company programs. Their belief is that with the SEC now offering big monetary rewards for information leading to a successful enforcement of a securities violation and disgorgement of funds the agency will take the agency longer to investigate an alleged action than the company itself.

For a good description of the controversy on the SEC vote, check out the FEI blog post by Edith Orenstein. By the way, the SEC whistleblower rules have been very much on the minds of audit committee members of public companies, according to KPMG’s Audit Committee Institute. In a survey taken at its 2011 Audit Committee Issues Conference, ACI reported that 45 percent of those polled at the conference were very concerned about the impact of the expanded bounty program on the ability of the company to discover and address compliance issues. To see the full report, click here. Read the rest of this entry »

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