This week we highlight PWC’s report on How your board can be ready for crisis, addressing key challenges for directors during a crisis and discussing how being prepared gives a company better odds of bouncing back smoothly. This analysis reviews the elements of effective crisis management plans and the importance of an escalation plan between management and the board, among other issues.
New York Law Journal has published the article “‘Spoofing’: The SEC Calls It Manipulation, But Will Courts Agree?” written by Michael Asaro and Richard Williams Jr., partner and associate, respectively, in the litigation practice at Akin Gump.
This week we highlight two analyses, one by J.P. Morgan and the other by Ernst & Young, reviewing the 2017 proxy season. The reports address board diversity; gender equality; environmental, social and governance (ESG) issues; and the normalization of shareholder activism as high priorities and key trends for many investors and boards.
On July 7, in In re Petrobras Securities, the 2nd Circuit declined to adopt an independent “administrative feasibility” requirement for class certification under Rule 23. In so holding, the 2nd Circuit joined the 6th, 7th, 8th and 9th Circuits, and expressly disagreed with the 3rd Circuit, which has taken the lead in holding that class action plaintiffs must satisfy a “heightened ascertainability” requirement by showing that there is an administratively feasible mechanism to determine whether an individual meets the class definition. The 2nd Circuit ruled that class action plaintiffs may satisfy the ascertainability requirement by showing that class membership may be determined using objective criteria.
On June 30, Congress gaveled out for the July 4 recess after postponing a critical vote to begin debate on an Affordable Care Act (ACA) repeal-and-replace bill. Senate Majority Leader Mitch McConnell (R-KY) and the GOP caucus have worked for the last two months in countless hours of behind-the-scenes meetings on what many believe to be a long-shot effort to unite 50 of the 52 Republican senators.
This week we highlight Willis Towers Watson’s 2017 Proxy Analysis of Executive Compensation. Their analysis is based on 365 S&P 1500 companies with consistent CEOs that filed proxies disclosing 2016 pay by the end of March 2017. The findings conclude that executive pay practices settled in to a new normal in 2016, characterized by modest pay increases, continued emphasis on performance-oriented compensation, and annual and long-term incentive (LTI) plan design features and metrics consistent with those of recent years.
Last week, the Staff of the Securities and Exchange Commission (SEC) announced that, beginning on July 10, 2017, the SEC will accept voluntary draft registration submissions from all issuers for nonpublic review. This expanded nonpublic review will apply to initial registration statements filed under both the Securities Act and the Exchange Act, as well as to Securities Act registration statements filed within one year of the effective date of an issuer’s initial Securities Act registration statement or Exchange Act Section 12(b) registration statement. Currently, only Emerging Growth Companies (EGCs) are allowed to confidentially submit a draft registration statement for confidential, nonpublic review by the SEC Staff prior to public filing, and such review applies to only the Securities Act registration process. The SEC Staff notes that the expanded nonpublic review will not limit the process by which EGCs submit draft registration statements for confidential review promulgated under the 2012 Jumpstart Our Business Startups (JOBS) Act, as subsequently modified by the 2015 Fixing America’s Surface Transportation (FAST) Act.
As stated in our May 25, 2017 Executive Compensation, Employee Benefits and ERISA Alert, the Department of Labor’s (DOL’s) new fiduciary rule (“Fiduciary Rule”) became partially applicable on June 9, 2017. Set forth below are a few questions that a typical private fund manager might have in response to the Fiduciary Rule, and our responses thereto.