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July 31, 2014 | Ning Chiu

As a result of the controversy regarding the availability of interim vote tallies during the 2013 proxy season, which we've previously discussed here, numerous companies received shareholder proposals earlier this year asking that those tallies not be available to management and the board. The resolution contained a list of the types of proposals this would apply to, as well as a list of exceptions.

Interim vote tallies generally refer to Broadridge's report to the company of the number of votes cast in favor, against or abstentions for the proposals on the proxy card, beginning 15 days before the meeting. The debate concerned perceived advantages of management knowing how shareholders were voting, while a shareholder who may solicit in opposition to the company would not have access to that information.

Companies made numerous arguments to the SEC staff for excluding... Read More

July 28, 2014 | Ning Chiu

A vast majority of companies have adopted similar practices and protocols for their earnings calls, but there were some notable differences and perhaps a few surprises, from the results of a survey conducted by the National Investor Relations Institute (NIRI). The full report is available only to members but the highlights are listed here

Earnings calls are widely embraced as useful communication tools, evidenced by the fact that 97% hold them quarterly. 94% are conducted by telephone and 89% through webcasting. Companies also share the same methods for announcing the calls, with 93% issuing press releases and 83% posting to the company website. 75% of companies sponsor calls on the same day as earnings are released, and the calls lasted 46 to 60 minutes for 68% of companies. Larger companies tend to have... Read More

July 23, 2014 | Ning Chiu

Approximately 60% of S&P 500 companies provide shareholders with the right to call special meetings. Coupled with the move away from classified boards and toward annual director elections, which generally permit shareholders to remove directors for cause, there has been increasing concern that companies are dismantling their defensive mechanism and leaving themselves vulnerable to activist attacks. 

Time Warner announced on Monday in a Form 8-K that its board has amended the company’s bylaws, effective immediately, to delete provisions regarding shareholders’ ability to call a special meeting. No reason was given in the company’s filing, although reports in the press indicate that the company recently rejected an unsolicited takeover bid. The press also reports that the move buys the company several additional months, before shareholders would be asked to consider any offers. Time Warner’s 8-K stated that its board intends to reinstate the provisions at the company’s... Read More

July 22, 2014 | Ning Chiu

As politicians spar over whether the seminal Dodd-Frank Act has achieved its objectives on its fourth anniversary that passed on Monday, and attempts continue to repeal many of its provisions, Davis Polk reviewed the status of its implementation in our Dodd-Frank Progress Report.

As of July 18, 2014, 280 Dodd-Frank rulemaking requirement deadlines have passed. Slightly more than half, 153, or 54.6%, have been met with finalized rules. Many of the rulemaking requirements do not contain deadlines, as the Act includes a total of 398 requirements. Overall, 208, or 52.3%, rules have been finalized and adopted, while 94, or 23.6%, have only been proposed, including rulemaking on disclosure of the ratio of CEO pay to average employee compensation. Roughly the same number, or 95 rules, have not yet been proposed. 

The SEC is only one of several regulators... Read More

July 18, 2014 | Ning Chiu

Yesterday, ISS announced the issuance of its 2015 proxy voting policy survey. Investors, issuers and their advisors are encouraged to respond to the survey by August 29. In prior years, feedback to the survey has often informed changes to the voting policy for the upcoming proxy season. Policy updates will be issued in November.

A summary of the questions is set forth below.  Not surprisingly, the survey incorporates the latest governance hot topics, much of which has been discussed in this blog and other publications.  If new policies on these matters are adopted by ISS, it could strongly impact or otherwise restrict the direction of these trends, including a board's right to adopt controversial bylaw amendments, gender diversity on boards, when to hold boards responsible for risk oversight failures, additional proxy disclosure about auditors and... Read More

July 17, 2014 | Ning Chiu

For actively helping two public company clients lobby congressional staff members about pending legislation, the SEC charged Ernst & Young (EY) with violating the auditor independence rules by unlawfully advocating on behalf of audit clients. Although the clients were involved with EY in the lobbying activities, neither were named in the SEC cease-and-desist proceedings against EY, and there appears to be no impact on the companies’ financial statements.   

Prior to 2009, Washington Council EY (WCEY) helped an audit client communicate with House leadership about a pending bill. WCEY passed along a letter from a top executive at the client addressed to House leadership and supporting passage of the bill to congressional staff. On another occasion, WCEY sent letters signed by the client to Senate and House leadership, listing specific provisions to include in pending legislation. WCEY... Read More

July 15, 2014 | Ning Chiu

According to the ISS US preliminary postseason update, the win rate for dissidents, measured by whether they won at least one board seat through negotiations or a vote, was 59% at 22 contested elections in the first half of 2014, compared to 24 contests with a 68% success rate by June 2013.  The size of the target continues to increase, as seven of the companies had market capitalizations greater than $1 billion.  Notable for 2014 were what ISS dubbed “hydra-headed activist challenges,” where multiple dissidents targeted the same company but with competing visions, including at Darden and Sotheby's.

Boards were also the focus through 13 “vote no” campaigns.  CtW urged investors to vote against nine companies, including several fast food restaurants and retail chains, by invoking the ongoing debate over minimum wage and income inequality, leading to a failed say-on-pay vote at Chipotle.  New York City funds and CalPERS blamed board members on Duke Energy's regulatory policy... Read More

July 10, 2014 | Ning Chiu

The numbers keep changing, but the latest report indicates that six public (or soon-to-be-public) companies have adopted fee-shifting provisions in charters and bylaws since the Delaware court ruling in May that such provisions may be valid, in a case involving a non-stock company. 

All are small, and none are in the Russell 3000 index at the moment. Two of the companies have only recently filed IPO registration statements, with the information contained in risk factors or general information disclosure and those incorporation documents are not available yet.  One company just went public in June as a limited partnership.

Only Biolase Inc. appears to be rated by ISS QuickScore. Biolase is one of two companies that has adopted these bylaws after facing litigation over board composition this year. Echo Therapeutics settled its suit with a dissident... Read More

July 8, 2014 | Ning Chiu

85% of directors at Russell 3000 companies who failed to receive majority support for their election remain on those boards two years later, a recent study by the Committee on Capital Markets Regulation found.  The Committee recommends that the SEC require boards that retain directors who did not achieve majority support publicly disclose in some form the specific reasons for the boards’ decisions that those directors should remain.    

The Committee indicates that its mission is dedicated to enhancing the competitiveness of U.S. capital markets and ensuring the stability of the U.S. financial market, and its membership includes a former SEC commissioner and a range of business leaders as well as those in academics.

Analyzing results over three years from 2010 to 2012, the... Read More

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