To assist our clients as they navigate rapidly shifting complexities, our Corporate Governance Group has prepared an ongoing series of Memos, Podcasts and Webinars. Topics include key considerations for public companies as they prepare to report disclosures and financial results throughout 2020, guidance on conducting shareholder meetings and the changing landscape of shareholder activism as the market begins to recover.
Partner Contacts: Nicolas Bourtin, Catherine M. Clarkin, Jared M. Fishman, Julia M. Jordan, Marc Treviño and Benjamin H. Weiner
RECENT CLIENT GUIDANCEISS Releases FAQ on U.S. Compensation Policies and the COVID-19 Pandemic
October 21, 2020 – On October 15, 2020, Institutional Shareholder Services (ISS) released general, preliminary guidance as to how ISS U.S. Benchmark Research may approach pay decisions related to the COVID-19 pandemic in the context of ISS’ pay-for-performance qualitative evaluation. Consistent with existing ISS policy, an elevated concern in ISS’ quantitative screen will result in this more in-depth qualitative review. The guidance was shaped by feedback from discussions with investors at roundtables and ISS’ annual policy survey. ISS indicated that this FAQ provides preliminary guidance ahead of ISS’ regular annual FAQ update in December.
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|M&A: Dealing with Uncertainty
October 19, 2020 – M&A partner Melissa Sawyer, co-head of the Firm’s Corporate Governance & Activism practice, participated in a discussion at the Milken Institute Global Conference on “M&A: Dealing with Uncertainty.” The panel examined whether M&A activity will remain subdued through the rest of the COVID-19 pandemic; whether previously prohibitive deals may become viable as industries and business models adapt to the new climate; and what factors might incite dealmakers to seize opportunities in a disrupted economy.
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|Lessons From the 2020 Proxy Season: Human Capital Proposals
October 13, 2020 – Marc Treviño, co-head of the Firm’s corporate governance practice and managing partner of its executive compensation group, discusses how the COVID-19 pandemic and other recent events may increase the prevalence of human capital proposals submitted by shareholders following the 2020 proxy season. Marc explores why more companies are likely to adopt or expand public disclosure on human capital management next year in response to growing pressure from investors and regulators. He also outlines changes to expect for specific categories of human capital proposals, including those related to diversity, arbitration and social capital.
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|Lessons From the 2020 Proxy Season: Virtual Shareholder Meetings
October 5, 2020 – Melissa Sawyer, M&A partner and co-head of the Firm’s Corporate Governance & Activism Practice, discusses the impact of the COVID-19 pandemic on shareholder meetings for U.S. issuers during the 2020 proxy season, when meetings were largely virtual for the first time. Melissa provides an overview of how companies and stakeholders have reacted to the shift. She also looks ahead to how the evolving expectations of investors might affect the format of meetings in 2021.
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|Marc Treviño, Melissa Sawyer and June Hu Present Webinar on Lessons From the 2020 Proxy Season
September 23, 2020 – S&C Corporate Governance co-heads Marc Treviño and Melissa Sawyer and associate June Hu hosted a webinar to further explain the lessons from the 2020 proxy season and what to expect going forward. They examined topics including Rule 14a-8 shareholder proposals, say-on-pay votes and equity compensation, and what to expect in 2021.
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Frank Aquila, Melissa Sawyer and June Hu Author Bloomberg Law Article on ESG Issues in Post-Pandemic M&A
September 16, 2020 – S&C partners Frank Aquila and Melissa Sawyer and associate June Hu discuss how businesses should weigh environmental, social and governance (“ESG”) factors when considering acquisitions in the post-pandemic world in an article published in Bloomberg Law.
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|S&C Critical Insights – Emerging Business Continuity Planning for Boards During COVID-19
July 24, 2020 – In this episode of S&C’s Critical Insights podcast series, M&A partners Eric Krautheimer and Melissa Sawyer discuss business continuity planning in light of the COVID-19 pandemic. Eric and Melissa review proactive steps boards can take in the best interest of their corporation while fulfilling their role as fiduciaries.
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2020 Proxy Season Review Part 2—Say-on-Pay Votes and Equity Compensation
July 22, 2020 – Part 2 of S&C's 2020 Proxt Season Review summarizes say-on-pay voting results for 2019 full-year and 2020 through June 30. U.S. companies, broadly speaking, had similar results on say-on-pay votes in 2020 as compared to 2019 and other recent years, with the vast majority of companies achieving high levels of support.
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2020 Proxy Season Review: Part 1—Rule 14a-8 Shareholder Proposals
July 15, 2020 – The total number of Rule 14a-8 shareholder proposals declined, continuing a downward trend that began in 2015. Those shareholder proposals are submitted to and/or voted on at annual meetings of the U.S. members of the S&P Composite 1500, which covers over 90% of U.S. market capitalization, at meetings held on or before June 30, 2020. We estimate that around 90% of U.S. public companies held their 2020 annual meetings by that date.
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|S&C Critical Insights – Best Practices for Boards Navigating Bankruptcy
July 2, 2020 – In this episode of S&C’s Critical Insights podcast series, Melissa Sawyer and Marc Treviño, co-chairs of the Firm’s Corporate Governance practice, discuss best practices for boards of companies facing bankruptcy. The COVID-19 pandemic has forced many companies across a range of sectors to confront insolvency issues. Marc and Melissa provide an overview of the fiduciary duties of directors in these situations and identify potential opportunities and pitfalls.
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Corporate Governance Hot Topics Quarterly Update - Q2 2020
July 1, 2020 – Our quarterly briefing focuses on significant corporate governance trends and developments, and highlights potential topics for boards’ agendas this quarter. This issue includes: Proxy Advisory and Institutional Investor Updates, Corporate Governance, Surveys, Policies and Reports, Litigation Developments and Disclosure Developments.
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SEC Issues Additional COVID-19 Disclosure Guidance
June 25, 2020 – On June 22, the SEC issued additional guidance (“Disclosure Guidance Topic No. 9A”) setting forth further views of the Division of Corporation Finance regarding operations, liquidity and capital resources disclosures that companies should consider with respect to business and market disruptions related to COVID-19. Disclosure Guidance Topic No. 9A supplements Disclosure Guidance Topic No. 9, which provided the Division of Corporation Finance’s initial views on disclosure and other securities law obligations that companies should consider with respect to COVID-19, and is discussed in our memorandum to clients dated March 30, 2020, available here.
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Week of May 18, 2020
May 21, 2020 – NYSE Provides Temporary COVID-19 Exception From Shareholder Approval Requirements Under 20% Rule (Memo)
May 18, 2020 – Frank Aquila, Melissa Sawyer and Ashlyann Harrison Look at Fiduciary Duties in the Zone of Insolvency for Bloomberg Law (Article)
Week of May 11, 2020
May 15, 2020 – Krishna Veeraraghavan, Scott Crofton and Lee Parnes Explain COVID-19 Risks Facing Boards in Corporate Secretary (Article)
May 11, 2020 – NASDAQ Provides Temporary COVID-19 Exception From Shareholder Approval Requirements Under 20% Rule (Memo)
Week of April 27, 2020
May 1, 2020 – Proposed Pandemic Anti-Monopoly Act (Memo)
April 30, 2020 – Sustainable Finance Update: EU Taxonomy, Updated Equator Principles, New Actions by Securities Regulators and Other Recent Developments (Memo)
Week of April 6, 2020April 9, 2020 – Impact of COVID-19 on Quarterly Reporting; New Statement from SEC Chairman and Director of Division of Corporation Finance (Memo)
April 9, 2020 – SEC Staff Updates COVID 19 Shareholder Meeting Guidance: Updated Guidance Relaxes Notice and Access Timing Requirements When Delays Are Unavoidable (Memo)
April 9, 2020 – ISS Announces Policy Guidance on the Impact of the COVID-19 Pandemic (Memo)
April 6, 2020 – Frank Aquila and Melissa Sawyer Author Corporate Secretary Article on Activism After the Pandemic (Article)
April 6, 2020 – Melissa Sawyer Discusses Post-Pandemic Activism With Acuris (Article)
April 6, 2020 – COVID-19 Risk Factor and Other Disclosure Considerations for Banking Institutions (Memo)
April 6, 2020 – S&C Critical Insights – Considerations for Directors During COVID-19 (Podcast)
Week of March 30, 2020
April 3, 2020 – California Governor Issues Executive Order Relating to Virtual-Only Shareholder Meeting Requirements for California Corporations (Memo)
April 2, 2020 – Corporate Governance Considerations During the COVID-19 Pandemic (Memo)
April 1, 2020 – S&C Critical Insights – Using Rights Plans To Preserve Net Operating Losses Under COVID-19 (Podcast)
March 31, 2020 – Frank Aquila and Melissa Sawyer Present PLI Briefing on Impact of the COVID-19 Pandemic on Current Shareholder Activism Environment (Speaking Engagement)
March 30, 2020 – Heightened Cybersecurity Risks Resulting from COVID-19’s Effects on Operations (Memo)
March 30, 2020 – M&A During the COVID-19 Crisis —European Commission Encourages Protection of Critical Assets by EU Member States (Memo)
Week of March 23, 2020
March 27, 2020 – French Government Adopts Measures Regarding Shareholders' Meetings and Board Meetings in Response to COVID-19 (Memo)
March 27, 2020 – Using Rights Plans to Preserve Net Operating Losses (Memo)
March 26, 2020 – S&C Critical Insights – Germany Introduces Online-Only Shareholders’ Meetings in Response to COVID-19 (Podcast)
March 26, 2020 – Impact of COVID-19 on Shareholder Activism and Unsolicited Offers: Considerations for U.S. Public Companies (Memo)
March 25, 2020 – Germany Introduces Online-Only Shareholders’ Meetings in Response to COVID-19 (Memo)
March 25, 2020 – Guidance for California Financial Institutions Regarding COVID-19 Pandemic (Memo)
March 23, 2020 – S&C Critical Insights – Disclosure Considerations for Senior Executive Illness Due to COVID-19 (Podcast)
Week of March 16, 2020
March 21, 2020 – Update: New York Governor Issues Executive Order Expressly Permitting Virtual-Only Meetings Until April 19, 2020 for New York Corporations (Memo)
March 20, 2020 – Senior Executive Illness Due to COVID-19: Disclosure Considerations for U.S. Public Companies (Memo)
March 19, 2020 – S&C Critical Insight