Current Posts


July 23, 2015 | Ning Chiu

In two pages, CalSTRS sets forth their expectations on board composition practices, an area of increasing attention by investors. 

On board tenure, CalSTRS does not advocate for strict limits and instead proposes that a mix of short- and long-tenured directors provides both fresh perspectives and experience, continuity and stability on the board.  Tenure and age limits may force turnover, but CalSTRS believes that regular evaluation of the needs of the company is more important to ensure board refreshment.  They urge companies to disclose a board succession plan and the process used to evaluate board composition and director performance, including a periodic third-party evaluation.

CalSTRS wants boards to embrace diversity “in the broadest sense” and consider “gender, age, culture, sexual orientation and identification, and... Read More

July 21, 2015 | Ning Chiu

CII filed a rulemaking petition asking that the SEC require companies to clarify the voting standards for the election of directors.  In their view, companies that use the state law default plurality rule, coupled with a policy that requires the director to submit a resignation if the director does not receive a majority of votes in favor (which CII calls "plurality-plus”), should not be permitted to state that their directors are elected by majority voting standards.  In addition, their proxy cards should only allow for the ability to “withhold” instead of voting “against”.  

CII believes companies’ disclosures about the votes necessary to elect directors are often confusing.  It refers to a company that disclosed majority voting standards for the election of directors, but also had a company proposal in the proxy statement to amend governing documents to adopt majority... Read More

July 16, 2015 | Ning Chiu

A number of business groups sent a letter to Chair White announcing the formation of the Corporate Governance Coalition for Investor Value (the Coalition).  The group includes the American Bankers Association, the U.S. Chamber of Commerce, SIFMA, the National Association of Manufacturers and ten others. 

The Coalition emphasizes the importance of strong corporate governance in driving shareholder value, and notes that communication and engagement between their member companies and their shareholders are “at an all-time high.” However, companies have seen an increase in “special-interest activism of all types.” The Coalition believes that this activism has led to campaigns that are unrelated to increasing long-term shareholder interest, while at the same time diminishing the role of boards of directors in their oversight. In addition,... Read More

July 15, 2015 | Ning Chiu

The SEC recently issued a concept release seeking public comment on whether to expand disclosure requirements about audit committees. The primary focus of the concept release is on the audit committee’s responsibilities for oversight of the independent auditor. However, the SEC has invited public comment on other aspects of the audit committee’s role beyond those involving the auditor, such as its oversight of financial reporting, internal controls and risk. 

Read the Davis Polk memo on this release >> 

 

July 14, 2015 | Ning Chiu

The United States Court of Appeals for the Third Circuit issued its opinion that permitted Wal-Mart to exclude a shareholder proposal that had asked the board to oversee policies to evaluate the sale of certain types of guns. The proponent had argued that the products endanger public safety and could impair the company’s reputation or damage its brand as a family retailer. We discussed the proposal and the background in several prior posts

In its ruling, the Appeals Court provided a clear set of tests under which to analyze these types of proposals. 

1.  What is the subject matter of the proposal (and its ultimate consequence)? 
In emphasizing that the proposal should be reviewed on its substance, not the form, the Appeals Court found that the District Court placed undue weight on the distinction... Read More

July 13, 2015 | Ning Chiu

EY Center for Board Matters reviewed the proxy statements of S&P 500 companies and found a dramatic increase in the number of companies that disclose shareholder engagement from five years ago. Based on 444 proxy statements available as of the middle of June, 56% discussed talking to shareholders, compared to 6% in 2010. 

Eighteen percent disclose that board members were involved in the engagement, usually the compensation committee chair or members, lead director, board chair or the nominating and governance chair or members. Slightly less than half indicate that changes were made as a result of the conversations with investors. Not surprisingly, 82% of those changes relate to executive pay, as it has been clear by now that the say-on-pay vote has essentially required companies with approval ratings of 75% or... Read More

July 9, 2015 | Veronica Wissel

On July 1, 2015, the SEC proposed a rule implementing Section 954 of the Dodd-Frank Act.  The proposed rule directs the stock exchanges to adopt listing standards that would require listed issuers to adopt and comply with a written clawback policy to recover any excess incentive-based compensation erroneously paid to any current or former executive officer because of material non-compliance with financial reporting requirements that resulted in a financial restatement.

Read the Davis Polk memo on this proposal >>

July 8, 2015 | Ning Chiu

A company’s reference to the next annual meeting date as “on or about” June 10 refers to an approximate or anticipated time frame, and not an actual specified date, held the Supreme Court of the State of Delaware in a case on appeal. As a result, a shareholder did not need to provide notice of proposals within the time period disclosed in the proxy statement under the company’s advance notice bylaws. 

Hill International disclosed in its 2014 proxy statement that its 2015 annual meeting would be held on or about June 10, 2015, and that shareholders must submit nominations or proposals under its bylaws between March 15 and April 15, 2015, which was 60 and 90 days before the meeting. On April 13, 2015, Opportunity Partners delivered a letter to Hill in which it gave notice of its intent to present two nominees for election to the board and two shareholder proposals at the 2015 annual meeting. 

On April 30, 2015, Hill filed its 2015 proxy statement, which announced that... Read More

July 7, 2015 | Ning Chiu

Jim McRitchie at corpgov.net provides an interesting discussion on whether he should withdraw his shareholder proposal at Whole Foods, since the company has now adopted proxy access.   

The company is permitting shareholders owning at least 3% for three years to make proxy access nominations for up to 20% of the board, rather than 25% as sought in his proposal. At the moment, both alternatives would allow for two directors when rounded down to the nearest whole number. He also questions whether the company’s definition of ownership that permits funds under common management and investment control to count as one shareholder is sufficient and believes that the provision that prohibits any proxy access nominee who did not receive at least 25% of the votes in favor of his or her election from being a proxy access nominee again for two years to be a... Read More

July 6, 2015 | Ron Aizen

Davis Polk has submitted a comment letter on the SEC proposal for companies to disclose pay versus performance. We previously summarized the rule proposal here

Our comment letter focuses on alternative performance measures to be disclosed, the requirement to use company and peer group TSR as the performance measures, the executive officers covered by the disclosure, vesting date requirements and XBRL formatting.  

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