ON Securities

On December 16, 2009, the SEC adopted its amendments to the proxy disclosure rules – see the press release and the full 129-page release that includes the text of the rules. The release has led to some confusion about when the new rules are effective – the release mentions an effective date of February 28, 2010, but it does not specify exactly what that means. I agree with Mark Borges in the Proxy Disclosure Blog (subscription site), who assumes that the amendments apply to proxy statements and other applicable filings on or after that date. . . . In my last post, I mentioned one of the “sleepers” in the rules. But I think there may be another one. . . . [to read more, click on the link above]

At Thanksgiving, our thoughts naturally turn to gluttony of all sorts. So it seems like a fitting time to recognize a few companies for granting awards to their executives that look so ridiculous they practically beg Congress to speed up compensation reform. . . . So pass the cranberry sauce and gravy, here are my nominees for the “Compensation Turkeys of the Year”, all reported by footnoted.org in the past few weeks . . . . Of course, Goldman Sachs makes the list for its announcement that it is setting aside around $17 billion for compensation and bonuses, calculated to be more than $700,000 on average for each of the company’s 31,700 employees. . . . Last week I reported that RiskMetrics Group came out with its 2010 updates to its proxy voting guidelines, summarized here. . . .

I’ve just finished three and a half very interesting days at the NASPP Annual Conference and the Proxy Disclosure Conference sponsored by CompensationStandards.com in San Francisco. Aside from an unexpectedly big crowd and some great food, attendees encountered some interesting updates. . . . Shelley Parratt, Director of Corporation Finance of the SEC, addressed the group, and there were two main news items. First, she previewed the currently proposed amendments to the proxy disclosure rules. She didn’t address when the amendments would be considered, but stated that the new rules “may well” be in place for the 2010 proxy season . . . . Second, apart from the new rules, Parratt discussed compliance with the proxy disclosure rules adopted in 2007 and indicated that the SEC staff will take a more assertive (aggressive?) posture in its comment process. . . .[to read more, click on the link above]

I attended a compelling legal education program this week, taught by Egil “Bud” Krogh. Political junkies know that Krogh was a young assistant White House counsel in the Nixon years. As a leader of the “Plumbers” unit, he authorized the 1971 break-in of the offices of Daniel Ellsberg’s psychiatrist after the leak of the Pentagon Papers. After the break-in came to light in the Watergate hearings, Krogh pleaded guilty, served time in prison, was disbarred and later reinstated. Bud now lectures on the topic of legal ethics, based on his recent book, Integrity: Good People, Bad Choices, and Life Lessons from the White House. His premise: in a pressure-filled environment such as the White House, intense loyalty to individuals can blind you to your higher principles. . . . . Krogh’s description of an environment that can put pressure on decision-making is familiar to anyone called on to say yes or no to any proposal by a corporate officer. . . . [H]ow do some decisions, even decisions by good people, go astray? A great example can be found in the options backdating scandals. . . . I asked Krogh how to advise an attorney . . . how to avoid the pitfalls of losing perspective in a pressure-filled situation . . . . [to read more, click on the link above]

Mark Borges, the well known compensation consultant with Compensia, gave a very interesting talk this week at a joint meeting of the Society of Corporate Secretaries and Governance Professionals and the Twin Cities Compensation Network. Mark was gracious enough to give me permission to post his presentation, which is full of useful updates on governance and compensation reform and tips on how to get ready. . . . Mark made these points, among many others . . . . [to read more, click on the link above]

I just went through some of the hundreds of comment letters on the SEC’s controversial proposal to adopt Rule 14a-11 on proxy access. . . . Several comment letters, including the letter from the U.S. Chamber of Commerce, describe explicit theories about why the proposed rule should be struck down by the courts if adopted. .. .It seems apparent that, if the SEC adopts Rule 14a-11, the enforcement of the rule will be tied up in court, and the rule could eventually be struck down. . . . Either way, the amendment to 14a-8 is likely to be effective long before Rule 14a-11. . . . [To read more, click on the title above]

On Friday, the House of Representatives passed the Corporate and Financial Institution Fairness Act of 2009. The Senate still needs to consider similar legislation, and any differences will need to be resolved. . . . For most public companies, the bill will . . . . [to read more, click on the title above]

It’s a pretty good bet that non-binding shareholder advisory votes on executive compensation (“Say-on-Pay”) will be adopted this year and will become mandatory for public companies, probably starting with the 2010 proxy season. . . . So, what does Say-on-Pay look like in practice, and what is the likely outcome of the shareholder vote? . . . . Assuming Say-on-Pay is required to be on the ballot in 2010, what should companies do now? . . . .We have just posted an updated version of the ON Securities Cheat Sheet under the Resources listing on the home page of this Blog. . . . [To read more, click on the title above.]

As described previously, on July 1, 2009, the SEC approved by a 3-2 vote an amendment to New York Stock Exchange Rule 452 to eliminate broker discretionary voting in uncontested elections of directors. Of all the recent proposals (see the ON Securities Cheat Sheet), this was the first to be adopted, and this change may have the biggest practical impact on corporate governance for most companies. The rule change is effective for shareholder meetings held on or after January 1, 2010, and it is likely to make it more difficult to get affirmative votes in favor of management’s slate of directors. . . .So what should a company do to prepare? . . . . [To read more, click on the Title above.]

Is your head spinning from the number of new developments in corporate governance and compensation reform? Are you dizzy from trying to remember whether “say-on-severance” is part of the Schumer Bill or the Treasury Department’s white paper? Is your heart racing from trying to keep track of the progress of shareholder access proposals? . . . We have just the answer – the ON Securities Cheat Sheet will cure what ails you. The Cheat Sheet is a one stop shop for “capsule summaries” of each bill and regulatory proposal being considered. These capsules are sure to make you feel better – and in the spirit of health care reform, this remedy is ABSOLUTELY FREE! . . . . [To read more, click on the Title above.]