Weekly Roundup: March 22-28, 2019

This roundup contains a collection of the posts published on the Forum during the week of March 22-28, 2019.

Activist CEOs Speak Out—Is There a Way to Do it Better?

Posted by Cydney Posner, Cooley LLP, on Friday, March 22, 2019

Tags: Corporate Social Responsibility, ESG, Management, Public perception, Reputation

New Developments in Shareholders’ Gender Pay Gap Proposals

Posted by Ryan Resch and Ruby Tewani, Willis Towers Watson, on Friday, March 22, 2019

Tags: Boards of Directors, Compensation committees, Compensation disclosure, Compensation ratios, Diversity, ESG, Executive Compensation, Management, Shareholder proposals, UK

General Statements of Regulatory Compliance and Securities Fraud Claims

Posted by Roger Cooper, Jared Gerber, and Lisa Vicens, Cleary Gottlieb Steen & Hamilton LLP, on Saturday, March 23, 2019

Tags: Class actions, Compliance & ethics, Compliance and disclosure interpretation, Disclosure, Form 10-K, Form 8-K, Section 10(b), Securities litigation, Securities regulation, U.S. federal courts

CFTC Enforcement Announcement: Commodity Exchange Act Violations Involving FCPA

Posted by Geoffrey F. Aronow, Michael S. Sackheim, Sharon A. Rose, Sidley Austin LLP, on Sunday, March 24, 2019

Tags: Anti-corruption, CFTC, Commodities, Commodities Exchange Act, Dodd-Frank Act, DOJ, FCPA, International governance, Misconduct, SEC, Securities enforcement

PE Professionals on the Boards of their Portfolio Companies

Posted by Glenn West and Miae Woo, Weil, Gotshal & Manges LLP, on Monday, March 25, 2019

Tags: Boards of Directors, Books and records, Delaware cases, Delaware law, DGCL, DGCL Section 220, Discovery, Private equity

Will Aruba Finish Off Appraisal Arbitrage and End Windfalls for Deal Dissenters? We Hope So

Posted by William J. Carney (Emory University) and Keith Sharfman (St. John’s University), on Monday, March 25, 2019

Tags: Appraisal rights, Arbitrage, Delaware cases, Delaware law, Fair values, Fairness review, Firm valuation, Market efficiency, Merger litigation, Mergers & acquisitions

2018 Year in Review—Securities Litigation Against Technology Companies

Posted by Grant Fondo, Michael Jones, and Nicholas Reider, Goodwin Procter LLP, on Monday, March 25, 2019

Tags: Blockchain, California, Class actions, Cryptocurrency, Disclosure, Howey test, ICOs, Liability standards, Merger litigation, Mergers & acquisitions, SEC, Section 10(b), Securities fraud, Securities litigation, Securities regulation, Shareholder suits, State law, Tech companies, U.S. federal courts

Whistleblower Award to Company Outsider

Posted by Jennifer Kennedy Park, Alex Janghorbani and Jim Wintering, Cleary Gottlieb Steen & Hamilton LLP, on Tuesday, March 26, 2019

Tags: CFTC, Commodities Exchange Act, Compliance & ethics, Dodd-Frank Act, Financial institutions, Financial technology, FINRA, SEC, Securities regulation, Whistleblowers

Board 3.0: An Introduction

Posted by Ronald J. Gilson and Jeffrey N. Gordon (Columbia Law School), on Tuesday, March 26, 2019

Tags: Board monitoring, Board oversight, Boards of Directors, Dual-class stock, Engagement, Hedge funds, Information asymmetries, Information environment, Institutional Investors, Private equity, Private firms

Longer-Term Restricted Share Plans in Executive Pay

Posted by Joseph Bachelder, McCarter & English LLP, on Tuesday, March 26, 2019

Tags: Clawbacks, Executive Compensation, Executive performance, Firm performance, Incentives, Internal Revenue Code, International governance, Pay for performance, Section 162(m), Tax Cuts and Jobs Act, UK

Practical Implications of Proposed Testing the Waters for All Issuers under U.S. Securities Law

Posted by Jon Daly, Michael Hyatte, and David Ni, Sidley Austin LLP, on Wednesday, March 27, 2019

Tags: Accredited investors, Capital formation, IPOs, JOBS Act, Regulation FD, Retail investors, SEC, Securities regulation, Small firms, Solicitation

Does Protectionist Anti-Takeover Legislation Lead to Managerial Entrenchment?

Posted by Marc Frattaroli (EPFL), on Wednesday, March 27, 2019

Tags: Acquisition premiums, Agency costs, Antitakeover, Cross-border transactions, Entrenchment, Executive Compensation, France, International governance, Management, Mergers & acquisitions

2019 Proxy Voting and Engagement Guidelines: North America

Posted by Rick Lacaille and Rakhi Kumar, State Street Global Advisors, on Wednesday, March 27, 2019

Tags: Antitakeover, Boards of Directors, ESG, Executive Compensation, Institutional Investors, Poison pills, Repurchases, Shareholder voting

Wake up the Raiders: Considerations for Private Equity Going Activist

Posted by Stephen B. Amdur (Pillsbury Winthrop Shaw Pittman LLP) and Chuck Dohrenwend and Patrick Tucker (Abernathy MacGregor), on Thursday, March 28, 2019

Tags: Hedge funds, Private equity, Proxy contests, Shareholder activism, Shareholder value, Shareholder voting, Target firms

Tulips, Oranges, Worms, and Coins—Virtual, Digital, or Crypto Currency and the Securities Laws

Posted by Thomas Lee Hazen (University of North Carolina), on Thursday, March 28, 2019

Tags: Asset bubbles, Bitcoin, Contracts, Cryptocurrency, Financial technology, Howey test, ICOs, SEC, SEC enforcement, Securities Act, Securities regulation, State law

Crisis Resilience and the Board—Taking Risk Oversight to the Next Level

Posted by Michael Gelles (Deloitte Consulting LLP), James Turgal (Deloitte & Touche LLP), and Wendy Overton (Deloitte LLP), on Thursday, March 28, 2019

Tags: Board oversight, Board performance, Boards of Directors, Corporate culture, Oversight, Risk management, Risk oversight

Remarks to the SEC Investor Advisory Committee

Posted by Jay Clayton, U.S. Securities and Exchange Commission, on Thursday, March 28, 2019

Tags: Capital allocation, Compensation disclosure, Compensation guidelines, Disclosure, Human capital, Investor protection, Securities regulation, Transparency