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Shareholder Proxy Access: An Idea Whose Time Has Not Yet Come
Although state corporation law bestows upon shareholders the right to nominate candidates for election as directors, and then to vote their shares in director elections, it is the Securities and Exchange Commission (“SEC”) that regulates the all-important proxy solicitation process by which shareholders of publicly traded corporations exercise their voting rights. In fact, according to the SEC, proxy regulation was one of the original tasks with which the SEC was charged by Congress at the time of the adoption of the Securities Exchange Act of 1934 (“Exchange Act”). Today, reform of the proxy solicitation process is one of the “hot-button” issues for advocates of enhanced rights for shareholders of publicly traded corporations.
On several occasions during recent years, the SEC has sought to amend its proxy rules to provide shareholders with access to company proxy materials for the purpose of nominating individuals for election as directors in opposition to management-backed candidates. The SEC has been motivated by its concern that the Federal proxy rules may not enable shareholders to exercise fully their state law rights to nominate director candidates. Under current SEC rules, shareholders who wish to nominate director candidates in opposition to incumbent directors must clear with the SEC and distribute to shareholders proxy materials in support of their candidates. Although web-based solicitations have made this process somewhat more shareholder-friendly, running a proxy contest remains a relatively complicated, time-consuming and expensive undertaking, pursued for the most part only in connection with hostile takeover bids or by well-heeled, motivated investors. At least a majority of the current SEC Commissioners believes that the inability of shareholders to access company materials to nominate opposition candidates gives a real advantage to incumbent directors and represents a “failure of the proxy process” that has negatively impacted the state law right of shareholders to nominate and elect directors.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.