I hope you were able to join us on Tuesday for our “2026 Proxy Disclosure Conference” and yesterday for our “23rd Annual Executive Compensation Conference.” Thanks again to all of valued sponsors, terrific speakers, and everyone at CCRcorp who made these events possible!
As always, our 13 panels covered a lot of ground on a wide range of topics over the past two days, and if you found that your notetaking was sometimes unable to keep pace or if you had to miss parts of the conferences, don’t fret – archives of the sessions will be available to attendees in the near future.
Attendees should receive an email next week with a link to our 2026 Conference Archives page. Members of TheCorporateCounsel.net, CompensationStandards.com, Section16.com and DealLawyers.com who registered for the conferences can use their existing logins to access the Proxy Disclosure Archives and the Executive Compensation Archives. In order to earn CLE credit for the archived sessions of the 2026 Proxy Disclosure & 23rd Annual Executive Compensation Conferences, you’ll need to follow the instructions outlined in our CLE FAQ page.
The unedited transcripts for the conferences will be added to the archive pages in the near future – and we’ll let you know when they’re up.
One final quote as we leave Orlando – and I’ll take it from Walt Disney, both because it wouldn’t be right to leave Orlando without hearing from him, and because I think it sums up the big picture lessons from this year’s conferences:
“In this volatile business of ours, we can ill afford to rest on our laurels, even to pause in retrospect. Times and conditions change so rapidly that we must keep our aim constantly focused on the future.”
The primary justification put forth by the SEC for repealing Rule 14a-8 is that the agency lacked the authority to promulgate the rule in the first place. The SEC argues that because Section 14(a) of the Exchange Act authorizes it to regulate the proxy solicitation process but does not authorize it to decide what matters must be submitted to shareholders, Rule 14a-8 exceeds the SEC’s statutory authority. The group of academics who call themselves the “Shadow SEC” argue that the SEC is simply wrong on this point. Here’s an excerpt from their recent CLS Blue Sky Blog post on the SEC’s proposal:
Rule 14a-8 does not create any substantive right enforceable under state corporate law, and it displaces nothing that state law otherwise governs. Proposals included under the rule are precatory; they bind no one, alter no charter, and effect no corporate action that state law does not already fully control. What the rule actually regulates is the content of a federal disclosure document—the company’s own proxy statement—a subject squarely within the Commission’s Section 14(a) authority since 1934.
A shareholder has always been free to raise the identical resolution from the floor of a meeting; Rule 14a-8 only concerns whether that proposal may also appear in the company’s proxy materials. That is a question about the scope of a federal communications channel, not an intrusion into state corporate governance. The fact that in-person attendance at meetings had ceased to be a meaningful way for shareholders to exercise voting rights was evident in 1934 and is not a change that can justify a rescission of a long-standing rule on any ground, much less legal authority.
I’m uncomfortable with the SEC’s assertion that it never had the authority to promulgate Rule 14a-8 in the first place, but I find this argument unpersuasive. At its heart is the contention that “what the rule actually regulates is the content of a federal disclosure document,” and that this fits squarely within the SEC’s authority under Section 14(a). That argument begs the question by essentially asserting that because the rule requires a company to include something in the proxy statement it’s consistent with the SEC’s authority to require a company to include something in the proxy statement.
This approach has the advantage of avoiding engagement with the substance of the SEC’s argument, but if you accept it, it’s difficult to discern any limiting principle for when permissible federal regulation of proxy solicitations crosses the line and becomes impermissible regulation of matters governed by state law.
Earlier this month, I blogged about the SEC’s decision to amend its Rules of Practice to reduce its quorum requirement to a single commissioner in some circumstances. FT Alphaville published an opinion piece trashing the decision, and Commissioner Uyeda wrote his own piece responding to that one, which The Financial Times recently published.
FT doesn’t permit publication of excerpts from its articles, so you’ll need to click on the link to read Commissioner Uyeda’s response to its criticism – in which he points out, among other things, that this isn’t the first time that the SEC has had only two commissioners from the same political party.
Your mileage on the original article and the response to it may vary. Personally, I think the quorum amendment is a largely irrelevant sideshow. As I said in my prior blog, having only two SEC commissioners for an extended period is no way to run a railroad.
You can still register to attend today’s conference and receive access to the archive of yesterday’s program as well as live and archived access for today! You can do that online or by calling us at 800-737-1271. Our conferences are bundled together into a single two-day event for registration and pricing, so your purchase will cover both events.
– How to Attend Online: Our conferences are hosted online through the RingCentral Events platform. When you register for the conferences, you’ll receive a registration confirmation email that will contain your personalized “Magic Link.” Just click on that link to be instantly directed to the event. The Magic Link acts as an “access pass” into the event. It is unique to you and cannot be shared with others. It bypasses the need for registered users to sign into RingCentral Events and brings you directly into your RingCentral Events account and into the event.
Once in the event, click the “Stage” button from the menu on the left of the webpage. In order to view the session currently playing on stage, you will need to press the play button on the video. If you’re having issues accessing the RingCentral Events platform, review this guide and contact your IT department. For audio/video issues, there are separate guides for Windows and for Mac. If you still need help, email info@ccrcorp.com.
– Access to Archives & On-Demand CLE: Your registration includes access to the conference archives, which will be available until October 12, 2027 – but you’ll need your confirmation email to access them so be sure to retain it! One big reason to make sure you do that is that if you can’t attend the conferences live, you may earn on-demand CLE credit by viewing the archives. See these “CLE FAQs for Archived Conference Sessions (ON DEMAND)” for more information.
– Thanks to Our Sponsors! A huge “thank you” to our sponsors who have helped make these events possible. Our founding sponsor for this year’s conferences is Goodwin, our PDEC lounge sponsor is Greenshoe.ai, our managing partner sponsor is Cooley, our associate sponsors are Ashurst Perkins Coie, Ballard Spahr, King & Spalding, Latham & Watkins, Morrison Foerster, Sidley, Troutman Pepper Locke, and Wilson Sonsini – and a special shoutout to our rise and shine breakfast sponsors Cleary and Dragon GC.
We are extremely grateful for the support of these fine law firms and businesses and invite you to consider joining them as a sponsor of next year’s conferences.”
I’ve got to admit that finding pithy little quotes to close out each day of our conferences was easier last year when we were in Vegas and I could just rely on Hunter S. Thompson, but Orlando is not without its quotable residents. For example, consider Orlando’s own David Bromstad, the host of HGTV’s “My Lottery Dream Home.” My wife and I are addicted to this show mostly because of this guy, who is, to put it mildly, completely over-the-top. Turns out he’s pretty quotable too. Here’s one for today:
Don’t call me normal. . . Call me strange, please!
A guest post over on The D&O Diary by two Nelson Mullins lawyers provides a checklist of 10 key policy terms that boards should assess when reviewing D&O coverage. Here’s an excerpt addressing three of those policy terms:
Policy Limits and Order of Payments. In addition to selecting the right overall policy limit, it’s also important to understand how that limit works. A $15 million policy does not necessarily provide $15 million of protection to directors personally. Multiple claims or claims against the company itself may erode the available limit.
Directors should understand how the Side A, B, and C coverages interact and whether the limits available under one coverage section can be eroded by claims under another. Strong Side A protection can also be particularly important when indemnification is unavailable because of insolvency, legal restrictions, or other circumstances. For example, policies can prioritize individual Side A protection first if policy limits begin to erode rapidly due to heavy defense costs or corporate entity-level (Side C) claims.
Prompt Advancement of Defense Costs. Defense costs can become substantial long before a case reaches settlement or judgment, and directors should avoid having to fund years of defense expenses personally while waiting for the ultimate resolution of a suit or coverage dispute. Some policies may not provide for prompt advancement or include terms that may hold up the process, such as requiring allocation disputes to be resolved or other conditions. Boards should therefore review for advancement terms that provide prompt, mandatory advancement of legal fees and defense expenses before the final disposition of a claim or suit.
Severability. A strong severability provision generally prevents one insured person’s knowledge, conduct, or misrepresentation from automatically being attributed to another insured. Boards should assess the policy for severability terms, including related application representations, knowledge of circumstances, and policy exclusions. Directors should not necessarily lose coverage because another insured director or officer allegedly made a misrepresentation or engaged in misconduct. Boards can avoid issue that by ensuring one insured’s misconduct cannot be imputed to or used to deny coverage to any other “innocent” director or officer.
Other policy terms covered by the checklist include Side A “difference in conditions” coverage, favorable exceptions to the “insured v. insured” exclusion, regulatory investigations coverage, prior acts, continuity and retroactive dates, related claims and interrelated wrongful acts, non-rescission clauses, and jurisdiction and choice of law.
Here’s a keeper for you – several Richards Layton attorneys recently published an article in The Corporate Governance Advisor that’s a primer on key Delaware law considerations for annual meetings of stockholders. This excerpt discusses common voting standards for matters other than the election of directors:
A variety of voting standards may be applicable to other matters. Certain extraordinary matters may be subject to heightened voting requirements under the DGCL or the corporation’s certificate of incorporation or bylaws, while the voting standard applicable to other general corporate action is typically set forth in the corporation’s bylaws. Common voting standards include:
1. Majority of Votes Cast
2. Majority in Voting Power of Outstanding Shares (default statutory vote for specified extraordinary matters, which can only be increased, but not reduced, in the certificate of incorporation)
3. Majority in Voting Power of Shares Present in Person or by Proxy at the Meeting and Entitled to Vote on the Subject Matter (default under Section 216(2) of the DGCL for all matters other than the election of directors and specified extraordinary matters)
4. Majority in Voting Power of Shares Present in Person or by Proxy at the Meeting and Entitled to Vote at the Meeting (a majority of the quorum)
Other topics addressed in the article include pre-meeting considerations, quorum, adjournment, the treatment of abstentions and broker non-votes, and virtual meeting considerations.
We’re kicking things off today in Orlando with our “Proxy Disclosure Conference” and we’ll follow that up tomorrow with our “23rd Annual Executive Compensation Conference.” The agendas for our conferences include 13 substantive panels over 2 days – and we’ll get started in style with Dave Lynn’s interview of Christina Thomas, Deputy Director of the SEC’s Division of Corporation Finance and Chief Advisor on Disclosure, Policy, and Rulemaking.
We’re very excited to see everyone in Orlando, but if you can’t be here in person, you can still register to attend today’s program and tomorrow’s “23rd Annual Executive Compensation Disclosure Conference” online by visiting our online store or by calling us at 800-737-1271. Our conferences are bundled together into a single two-day event for registration and pricing, so your purchase will cover both events.
– How to Attend Online: Our conferences are hosted online through the RingCentral Events platform. When you register for the conferences, you’ll receive a registration confirmation email that will contain your personalized “Magic Link.” Just click on that link to be instantly directed to the event. The Magic Link acts as an “access pass” into the event. It is unique to you and cannot be shared with others. It bypasses the need for registered users to sign into RingCentral Events and brings you directly into your RingCentral Events account and into the event.
Once in the event, click the “Stage” button from the menu on the left of the webpage. In order to view the session currently playing on stage, you will need to press the play button on the video. If you’re having issues accessing the RingCentral Events platform, review this guide and contact your IT department. For audio/video issues, there are separate guides for Windows and for Mac. If you still need help, email info@ccrcorp.com.
– Access to Archives & On-Demand CLE: Your registration includes access to the conference archives, which will be available until October 12, 2027 – but you’ll need your confirmation email to access them so be sure to retain it! One big reason to make sure you do that is that if you can’t attend the conferences live, you may earn on-demand CLE credit by viewing the archives. See these “CLE FAQs for Archived Conference Sessions (ON DEMAND)” for more information.
– Thanks to Our Sponsors! A huge “thank you” to our sponsors who have helped make these events possible. Our founding sponsor for this year’s conferences is Goodwin, our PDEC lounge sponsor is Greenshoe.ai, our managing partner sponsor is Cooley, our associate sponsors are Ashurst Perkins Coie, Ballard Spahr, King & Spalding, Latham & Watkins, Morrison Foerster, Sidley, Troutman Pepper Locke, and Wilson Sonsini – and a special shoutout to our rise and shine breakfast sponsors Cleary and Dragon GC.
We are extremely grateful for the support of these fine law firms and businesses and invite you to consider joining them as a sponsor of next year’s conferences.
Finally, in honor of our host city, here’s a quote from a one-time Orlando resident that concisely explains why you won’t see me on any of our panels over the next couple of days:
“I had nothing to offer anybody except my own confusion.” – Jack Kerouac, On the Road
There’s been a lot of activity on the retail voting program front in recent weeks, and last Thursday, Corp Fin threw two new CFIs on retail voting programs into the mix. Here they are in their entirety:
Section 189. Retail Voting Programs
Question 189.01
Question: A registrant implements a retail voting program that allows shareholders to provide standing voting instructions to the registrant in reliance on staff no-action letters (e.g., Exxon Mobil Corporation (Sept. 15, 2025), The Goldman Sachs Group, Inc. (Sept. 28, 2026), and Tesla, Inc. (Sept. 29, 2026) no-action letters) or other applicable staff guidance. Under the retail voting program, shareholders can only provide standing voting instructions that require the registrant to vote their shares in accordance with the recommendations of the registrant’s board of directors on proposals presented for a vote at shareholder meetings. The registrant receives a request that its program offer additional standing voting instructions for shareholders to select from, such as an instruction that requires the registrant to vote against the board’s recommendations on proposals presented for a vote at shareholder meetings. Is the registrant required under the federal proxy rules to offer different types of standing voting instructions in its retail voting program?
Answer: No. The federal proxy rules do not require any person to implement a retail voting program, nor do the federal proxy rules require any person that implements a retail voting program to offer more than one type of standing voting instructions, including any suggested by another person. [October 8, 2026]
Question 189.02
Question: Can a registrant’s retail voting program offer shareholders an option to submit standing voting instructions that require votes to be cast in accordance with voting recommendations issued by a third party?
Answer: A registrant may be engaging in a solicitation subject to the federal proxy rules when it communicates with shareholders about submitting standing voting instructions through the registrant’s retail voting program. Accordingly, absent an available exemption under Rule 14a-2(a), such communications may be soliciting materials subject to Rule 14a-9, which prohibits material misstatements and omissions.
Registrants that want to permit shareholders to submit standing voting instructions requiring votes to be cast in accordance with third-party voting recommendations should consider, for purposes of Rule 14a-9, whether shareholders would be furnished with material information about the recommendations necessary to understand how their shares will be voted on a particular proposal at an upcoming meeting pursuant to the instructions. Two important factors that should be considered are whether shareholders will:
– receive the third-party voting recommendation on a particular proposal at no cost; and
– have sufficient opportunity after receiving the recommendation to override the vote to be cast pursuant to the standing voting instruction.
For example, the third party may provide its voting recommendation to the registrant at no cost and with sufficient time so the vote to be cast on a particular proposal pursuant to the instruction is disclosed in the registrant’s definitive proxy statement. Alternatively, the third party may agree with the registrant to provide the voting recommendation directly to shareholders at no cost and with sufficient time for shareholders to override the instruction by voting on the registrant’s proxy card for the meeting. [October 8, 2026]
I haven’t seen any formal reaction from shareholder democracy advocates yet, but I can’t imagine they’re going to be real pleased with the first of these CFIs, since the absence of a requirement to offer standing voting instruction alternatives has been one of their major beefs about these voting programs.
The latest issue of The Corporate Counsel newsletter has been sent to the printer. It is also available now online to members of TheCorporateCounsel.net who subscribe to the electronic format. The issue includes the following articles:
– SEC Proposes Repeal of Rule 14a-8 and Overhaul of Rule 14a-4
– SEC Proposes to Modernize Proxy Solicitation Process
Email info@ccrcorp.com or call 1.800.737.1271 to subscribe to this essential resource!
According to this WSJ piece, “prompt speak” and the use of corporate jargon are getting more common as AI enters the (real-world) chat. If you’re the type of person who’s bothered by that, then you can use this WSJ list of phrases to avoid so that you don’t unintentionally annoy your colleagues and/or sound like a personified LLM.
Alternatively, perhaps you want to live on the edge and see how many you can work into a conversation before you’re banned from future meetings! This one made me laugh:
Stakeholders: It makes me think of vampire slayers.
I am guilty of using a few of these phrases, and I apologize to anyone I’ve offended along the way. I’ll circle back with you when I’ve achieved the growth mindset that will allow me to move the needle away from these habits of speech. In the meantime, I’ll also be leveraging these new iterations (click the image to enlarge):
