Tag Archives: Corporate Governance

Proposed Disclosure and Corporate Governance Reforms in the Financial Choice Act 2.0

In a post last week, I wrote about the proposed revised Financial Choice Act (H.R. 10) now pending before Congress and the potential impact that the bill could have on the SEC’s enforcement program. In this post, I address the potential impact that the bill’s provisions could have on public company disclosure requirements and corporate … Continue Reading

Guest Post: Three Cybersecurity Lessons From Yahoo’s Legal Department Woes

The recent news that Yahoo’s general counsel had resigned following a probe of high-profile data breaches at the company has generated a great deal of discussion and concern. In the following guest post, David Fontaine and John Reed Stark take a look at the circumstances surrounding the resignation and consider the implications of and lessons … Continue Reading

Book Review: “Take Back Control of Your Cybersecurity Now”

There is little doubt that cybersecurity is one of the most pressing issues in the contemporary corporate, political and economic arena. When, as have seen, cybersecurity has become a critical issue in the U.S. political and electoral processes, it is clear that the consequence and complications associated with cybersecurity have become both acute. Cybersecurity has … Continue Reading

Guest Post: A Focus on Directors’ and Officers’ Risks in India

  As readers of this blog know well, liability claims against corporate directors and officers is an increasingly global phenomenon. A number of different factors are contributing to the globalization of D&O liability, including legislative changes, changes in regulatory enforcement activity, and the rise of litigation financing. In the following guest post, Richa Shukla of … Continue Reading

Enron’s Legacies, a Decade and a Half Later

Fifteen years ago this month, the once high-flying energy company Enron completed its massive collapse when it filed a petition for bankruptcy protection. In his interesting December 2, 2016 post on the Harvard Law School Forum on Corporate Governance and Financial Regulation (here), Michael Peregrine of the McDermott, Will & Emery law firm takes a … Continue Reading

SEC Warning: It Is Watching Private Companies

The Securities and Exchange Commission is primarily concerned with public companies and the securities markets in which the shares of public companies trade. However, in a series of recent speeches and presentations as part of what the agency had called the “Silicon Valley Initiative,” the agency made it clear that it is increasingly concerned with … Continue Reading

Guest Post: Managing Gatekeeper Anxiety

In the following guest post, Michael W. Peregrine, a partner at the McDermott, Will & Emery law firm, take a look at regulators’ new “gatekeeper” expectations that now face corporate directors. This article is reprinted with permission from Corporate Board Member, First Quarter, 2016. I would like to thank Michael for his willingness to publish … Continue Reading

Guest Post: Seven Lessons Learned from D&O Litigation During the Financial Crisis  

The financial crisis generated a great deal of litigation, much involving the directors and officers of companies affected by the crisis. As the crisis recedes further into the past and as the litigation it generated winds down, it is worth taking a look at what happened to determine what can be learned from the litigation. … Continue Reading

Guest Post: Boards of Directors and Cybersecurity: Applying Lessons Learned From 70 Years of Financial Reporting Oversight

In this day and age, the members of the boards of directors of most companies understand that cybersecurity issues are both important and should be a board-level priority. But while these issues and responsibilities are now well-recognized, many boards still struggle to translate these issues into action. In the following guest post from John Reed … Continue Reading

A Q&A with Mark Lebovitch of Bernstein Litowitz: A Plaintiffs’ Counsel’s Perspective on the Fee-Shifting Bylaw Debate

One of the more significant recent developments in the corporate and securities litigation arena has been the emergence of the debate over fee-shifting bylaws following the Delaware Supreme Court’s May 2014 decision in ATP Tour, Inc. v. Deutscher Tennis Bund. Draft proposed legislation is now being considered by the Delaware legislature that would address fee-shifting … Continue Reading

Another Litigation Reform Bylaw Variant: The Minimum Stake to Sue Bylaw

In prior posts, I have noted the growing phenomenon of companies adopting various types of bylaws as a self-help version of litigation reform. Delaware’s courts have already approved the facially validity of both forum-selection bylaws and of fee-shifting bylaws, although measures pending in Delaware legislature in 2015 could address the fee-shifting bylaw. Other courts have … Continue Reading

Fiduciary Duty as a Source of Board Focus for Long-Term Shareholder Value Creation

The fiduciary duties of members of corporate boards are usually invoked in connection with directors’ potential liability exposures. However, in their January 2015 Harvard Business Review article entitled “Where Boards Fall Short” (here), Dominic Barton, global managing director of McKinsey & Co., and Mark Wiseman, President and CEO of the Canada Pension Plan Investment Board, … Continue Reading

A Call for Corporate Governance Reform in Spain

In an interesting June 11, 2014 Financial Times article entitled “Spain’s Renewal Must Include Governance Improvements” (here), financial journalist and commentator Tony Barber identifies corporate governance issues that he believes Spanish companies have been slow to address. According to Barber, while there may be historical explanations for many of the long-standing corporate governance practices in … Continue Reading

Guest Post: Cyber Security, Cyber Governance, and Cyber Insurance: What Every Public Company Director Needs to Know

  As I have frequently noted on this site (refer, for example, here), cyber security issues increasingly are a board level concern, and indeed, recent shareholder litigation has shown that investors intend to hold board members accountable when data breaches cause problems for their companies.  In the following guest article, which was previously published as a … Continue Reading

The Latest on Arbitration Clauses in Corporate Bylaw Provisions

In a recent post, I noted the Delaware Supreme Court’s ruling upholding the validity of  bylaw  provisions shifting the costs of litigation to an unsuccessful intra-corporate litigation claimant, which is the latest in a series of judicial decisions in which courts have recognized the authority of corporate boards to address shareholder litigation concerns in their … Continue Reading

Is a Remote Annual Meeting Venue an Indicator of Corporate Risk?

Those interested in trying to identify possible corporate risk indicators will want to take a look at a March 18, 2014 paper by Temple University finance professor Yuanzhi Li and New York University finance professor David Yermack entitled “Evasive Shareholder Meetings” (here). According to the authors’ research, there is a strong negative correlation between distant … Continue Reading

The Complex Conflicts Minerals Disclosure Challenge

The SEC’s conflicts minerals disclosure rules, promulgated as required under provisions of the Dodd-Frank Act, became effective on January 1, 2013, requiring companies to make their first conflict minerals disclosures on or before May 31, 2014 for the 2013 reporting year, as I detailed in a recent post. But though it is widely recognized that … Continue Reading

Time to Look at the Conflict Minerals Disclosure Requirements

Although I was aware that among the Dodd-Frank Act’s hundreds of pages are provisions relating to so-called “conflict minerals,” until recently I had not had to pay much attention to these provisions. But now, for whatever reason, the conflict minerals disclosure requirements suddenly have hit the center of my radar screen. I have had to do … Continue Reading

Nonprofit Board Members’ Statutory Immunity

Most states have adopted statutes providing individuals who serve as directors on nonprofit boards with limited immunity from liability. Among other issues that frequently arise is the scope of the protection provided under this statutory immunity. A recent decision from the Connecticut Appellate Court in a case involving a liability claim against the volunteer President … Continue Reading

Thinking About the Limits of Corporate Officials’ Defense Cost Advancement Rights

In addition to indemnification, corporate directors and officers also may have the right under applicable law and corporate by-laws to have their costs of defense advanced before the ultimate right to indemnification has been determined. A question that often arises is whether a corporation may withhold advancement. A recent decision from the Ontario Superior Court … Continue Reading

Employer Social Media Policies, Cyber Security and Other Web Notes

As the various forms of social media have become increasingly pervasive, employers have struggled with appropriate responses to employees’ use of the social media sites. One question in particular that has arisen is the extent to which employers can seek to regulate and even discipline employees’ use of social media to comment on the employer … Continue Reading
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