Governance Center Blog

Apr
15
2012

Dim the Spotlight

It is common knowledge that people are not driven solely by the prospect of financial rewards. Yet, in business, motivational tools for top executives—particularly the CEO—almost singularly comprise financial incentives. In 1980, only 10 percent of the UK’s largest FTSE100 companies utilized incentive arrangements (in the form of cash and stock-based variable pay). Today, they are universally employed as a matter of best practice and variable pay accounts for approximately two-thirds of total compensation.

Widespread adoption of financial incentives has contributed to substantial pay increases, in absolute and relative terms. In the United Kingdom, the average compensation of FTSE100 CEOs climbed from £1 million in 1998 to £4 million a decade later, with the ratio of CEO pay to average employee pay nearly tripling. (The figures are, of course, higher for American executives.) The rise in top executive pay has far outstripped growth in share price and other indicators of company performance, with certain incentive arrangements proving counterproductive by encouraging excessive risk-taking and accounting manipulation. Read the rest of this entry »

Jan
18
2012

Governance Challenges and Priorities for 2012

What are the biggest corporate governance challenges and issues for 2012?  I spoke with a number of investors and other governance experts, and here’s what they said:

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 »

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
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
26
2011

Proxy Access Court Decision Fallout: Bank on More Proxy Contests

Two things are almost certain following Friday’s decision by the U.S. Court of Appeals for the D.C. Circuit in the case challenging the SEC’s new proxy access rules: there definitely will be no proxy access for proxy season 2012 and the number of proxy contests will increase next year.

While I know I’m not going out on a limb to make the first prediction since the court unanimously  vacated Rule 14a-11 (which would allow shareholders direct access to the proxy), I believe shareholder groups will take advantage of Rule 14a-8 as a backdoor way toward proxy access. Additionally, there is bound to be some kind of blowback for those directors sitting on companies that had negative Say on Pay votes. Granted, that might take the form of withhold campaigns but many shareholder groups may just opt for the good old-fashioned proxy contest.

Here’s why I believe there will be an uptick in proxy contests and/or shareholder proposals calling for proxy access: Read the rest of this entry »

Apr
19
2011

On First Read, Expect Proxy Access to be Retooled for 2012

Wouldn’t it be the ultimate irony if the shareholder proxy access rules approved by the SEC under the Dodd-Frank Act were thrown out by a federal court because they could cost companies too much money? One of the major thrusts behind proxy access over the past couple of decades was that the traditional proxy fights to replace directors has been cost prohibitive to minority shareholders who had to pay for their own ballots.

Most likely the court won’t strike down the rules entirely, but instead will ask the commission to tweak the rules to take into account its concerns about costs of implementing the rules, a major argument made by the federal court hearing the case earlier this month. Read the rest of this entry »

Dec
21
2010

Top 2011 Issues for Directors and CEOs

As company holiday parties wind down and executives prepare for what next year may bring, that can mean only one thing in the corporate governance world: time for Top 10 lists for 2011.

Of the four major lists I could cull, only one actually lists 10 items. For the most part, these lists are more a compilation of issues and challenges facing directors and C-level executives in the coming year. In lieu of a Top 10 list this year, I figured I would focus on the top issues that I have seen in lists from four organizations. They are KPMG’s Audit Committee Institute (Ten To-Do’s for Audit Committees in 2011); the law firm of Wachtell, Lipton, Rosen & Katz (Some Thoughts for Boards of Directors in 2011); PWC (2011 Current Developments for Directors); and executive search firm and consultant Heidrick & Struggles (10 Key Challenges for CEOs in 2011). Read the rest of this entry »

Sep
08
2010

Guest Contributor: State Law Under Proxy Access

GUEST CONTRIBUTOR POST: Frederick H. Alexander is a member of the Corporate Counseling Group of Morris, Nichols, Arsht & Tunnell LLP, which specializes in providing advice on corporate governance and transactions. He is also chair of the Council of the Corporation Law Section of the Delaware State Bar Association and co-chair of the General Review Task Force of the ABA Committee on Corporate Laws. This post is exclusive to The Conference Board Governance Center.

By Frederick H. Alexander

The final proxy access rules (the “Rules”) adopted by the SEC on Aug. 25 culminate a long struggle over whether stockholdedodd-frank actrs should have a right to include their own nominees in the annual proxy statement of a public company.  Federal law now gives stockholders a right to require a publicly traded company to include stockholder nominees in its proxy materials for up to 25 percent of the directors.  The Rules also provide “access to greater access” by allowing stockholders to put proposals into a corporation’s proxy materials that call for an even more liberal proxy access regime than the Rules themselves contemplate.

This entry will focus on a few state law implications of the new rules from the vantage point of a Delaware corporate law practitioner, rather than the policy debate or the intricate workings of the Rules, which have already been the subject of a number of excellent law firm memos. Read the rest of this entry »

Sep
03
2010

Guest Contributor: Proxy Access Could Hurt the Bottom Line

GUEST CONTRIBUTOR POST: Brian G. Cartwright is senior advisor to Latham & Watkins LLP and a fellow of the Arthur and Toni Rembe Rock Center for Corporate Governance at Stanford University. Charles M. Nathan is a member of the corporate department in Latham & Watkins’ New York office, is co-chair of the firm’s Corporate Governance Task Force and is former global co-chair of the firm’s Mergers and Acquisitions Group. This post is exclusive to The Conference Board Governance Center.

By Brian G. Cartwright and Charles M. Nathan

The SEC’s adoption of proxy access on Aug. 25 is a watershed event of potentially historic significance, climaxing over four decades of activist effort aimed at the boardroom.dodd-frank act

The legendary community organizer Saul Alinsky invented what he dubbed the “proxy tactic” during his late-1960s-era agitations against Eastman Kodak in Rochester, N.Y. As Alinsky wrote in his famous 1971 guide Rules for Radicals, before then “[n]o one had ever organized a campaign to use proxies for social and political purposes.”  But as Alinsky thought about the idea, “[s]oon I was intoxicated by the possibilities.  You could begin to play the whole Wall Street board up and down.”  While Alinsky realized that “corporations will fight back by pointing out that the … demands of the stockholders will result in diminished dividends,” he believed enough stockholders would find their campaigns “more important than a cut in dividends.”  Alinsky was so excited by his new idea, that he trumpeted the proxy tactic as “one of the single most important breakthroughs in the revolutions of our times.”

Well, now we shall see whether Alinsky was right.  At a moment when our economy is tottering, millions are unemployed with little hope of relief, and American economic dominance is challenged by aggressive new competitors in Asia, a bare party-line majority of the SEC has embarked on a grand experiment in politicizing the leadership of our businesses. Read the rest of this entry »

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