Cooley LLP updates

Activist CEOs speak out – is there a better way to do it?
Cooley LLP
  • Company & Commercial
  • USA
  • 18 March 2019

There has recently been a lot of pressure on CEOs to voice their views on political, environmental and social issues. According to the global chair of reputation at Edelman, the expectation that CEOs will be leaders of change is high. As such, to the extent that CEOs are considering taking stands on contentious social, political or environmental issues, are there effective ways for CEOs to decide when and how to do it?

Corp Fin no-action letters address ordinary business exception and executive compensation
Cooley LLP
  • Company & Commercial
  • USA
  • 04 March 2019

In October 2018 the Division of Corporation Finance (Corp Fin) issued a staff legal bulletin on shareholder proposals that examined the ordinary business exception under Rule 14a-8(i)(7), addressing (among other topics) the application of the rule to proposals relating to executive or director compensation. Since the government shutdown, Corp Fin has posted several no-action letters that consider the exception in that context – but do they provide any colour or insight?

California legislature amends required Civil Code Section 1542 language
Cooley LLP
  • Company & Commercial
  • USA
  • 25 February 2019

Section 1542 of the California Civil Code precludes the waiver of unknown claims unless the protections of the section are expressly relinquished. In order to effectively waive these protections, the language of the statute must be included in any agreement and the parties to the agreement must acknowledge that they are waiving the rights and benefits of the statute. These requirements are not new, but the California legislature recently amended the statutory language required to be included in any waiver.

CII advises on disclosure of board evaluation processes
Cooley LLP
  • Company & Commercial
  • USA
  • 18 February 2019

The Council of Institutional Investors (CII) Research and Education Fund recently released a report regarding disclosures of board evaluation processes in proxy statements. While companies have been discussing their board evaluation processes in their proxies with increasing frequency, the CII suggests that these discussions could be more robust and has identified seven indicators of strong board evaluation processes, including a three-tiered review.

Overcoming short-termism: calling time on earnings per share?
Cooley LLP
  • Company & Commercial
  • USA
  • 28 January 2019

To deter short-termism, which can affect stock repurchases, R&D investments and capital expenditures, among other things, some have recommended that companies should stop giving quarterly guidance, while others have advocated an end to quarterly Securities and Exchange Commission reporting. However, a new theory suggests that getting rid of earnings per share may be the solution.

No-action letters provide additional insight into ordinary business exclusion
Cooley LLP
  • Company & Commercial
  • USA
  • 24 December 2018

On the heels of the release of Staff Legal Bulletin (SLB) 14J, Corp Fin recently posted two no-action letters that shed further light on the ordinary business exclusion under Rule 14a-8(i)(7). In SLB 14J, the staff had addressed the nature of the board analysis which they would find most helpful in evaluating a no-action request to exclude a shareholder proposal under Rule 14a-8(i)(7), as well as micromanagement as a basis for exclusion under that same rule. The latest response letters provide further clarity in this regard.

CAQ releases 2018 Audit Committee Transparency Barometer
Cooley LLP
  • Company & Commercial
  • USA
  • 17 December 2018

The Centre for Audit Quality (CAQ), working with Audit Analytics, recently released a new edition of its annual Audit Committee Transparency Barometer, which, over the past five years, has measured the robustness of audit committee disclosures in proxy statements among companies in the S&P Composite 1500. According to the CAQ, the bottom line is that the level of voluntary transparency has continued to increase steadily in most areas.

Corp Fin updates CDIs relating to smaller reporting companies
Cooley LLP
  • Company & Commercial
  • USA
  • 10 December 2018

The Division of Corporation Finance (Corp Fin) recently updated its compliance and disclosure interpretations (CDIs) relating to smaller reporting companies. In connection with these updates, Corp Fin has also withdrawn a number of CDIs. Under the new amendments, companies can now be both accelerated filers and smaller reporting companies. Further, in determining whether a company is a smaller reporting company, its annual revenues should be calculated on a consolidated basis.

Low board turnover? Less opportunity for board diversity
Cooley LLP
  • Company & Commercial
  • USA
  • 26 November 2018

A recent study showed that in 2018, 428 new directors were elected to boards of companies in the S&P 500 – the most new directors since 2004 – representing an increase of 8% from 2017. Further, 57% of boards added at least one new director and 22% appointed more than one new director. However, overall turnover remained modest. While these new directors added fresh skills, qualifications and perspectives, the study concluded that progress regarding boardroom diversity has been mixed.

Best Practices Committee offers recommendations for conduct of virtual annual meetings
Cooley LLP
  • Company & Commercial
  • USA
  • 28 May 2018

While the number of virtual-only annual meetings has increased, critics continue to contend that virtual-only meetings limit an important shareholder right, precluding shareholders from direct eye-to-eye engagement with management and the board. With this in mind, a group of interested representatives of retail and institutional investors, public companies, proxy advisers and legal counsel have developed a set of best practices designed to ensure that the needs of all constituents are satisfied.

EY Centre for Board Matters identifies investors' top priorities for companies in 2018
Cooley LLP
  • Company & Commercial
  • USA
  • 12 March 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
  • Company & Commercial
  • USA
  • 19 February 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
  • Company & Commercial
  • USA
  • 12 February 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
  • Company & Commercial
  • USA
  • 22 January 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
  • Company & Commercial
  • USA
  • 15 January 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
  • Company & Commercial
  • USA
  • 08 January 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
  • Company & Commercial
  • USA
  • 04 December 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
  • Company & Commercial
  • USA
  • 27 November 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
  • Company & Commercial
  • USA
  • 20 November 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
  • Company & Commercial
  • USA
  • 06 November 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".

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