Monthly Archives: June 2003

June 13, 2003

Apria Healthcare has filed its

Apria Healthcare has filed its definitive proxy with its policy regarding shareholder access as an appendix – interestingly, the only discussion of the policy in the proxy statement is under the Nominating Committee heading. The policy is at

For subscribers, we have posted an interview with Marie Oh Huber of Agilent on Preparing for Internal Control Attestations at

We have also posted a good memo from Debevoise & Plimpton on 11-Ks and 906 certifications at

June 12, 2003

As the June 30 deadline

As the June 30 deadline for 11-Ks looms, its becoming increasingly apparent that the SEC is unlikely to give any firm guidance on whether 906 certifications are required (despite the paragraph in the internal control report adopting release issued Friday that noted that the SEC and DOJ were in discussions). As the due diligence for these certifications is likely to take a lot of time – because there is likely to be so many different third-party entities involved – companies should start figuring out what they will do to support the certification now.

The question remains – who should sign the 11-K certification. The answer likely is whoever signs the 11-K: the company’s CEO and CFO – or the plan adminstrator (if that is a natural person) or whoever has the highest responsibility for the plan.

The next question is whether the certification should have the “fairly presents” language since there is no income statement involved – some companies have changed the certification to read that the fairly presents language relates to the “net assets available for benefits and changes in net assets available for benefits of the Plan.” See the two 11-Ks filed by Intel this morning – one of these is at

For subscribers, today is a webcast program “Alan Dye on the Latest Section 16 Developments” – try a “no-risk trial” subscription (refund at any time – and for any reason) to listen at

June 11, 2003

Under the leadership of board

Under the leadership of board chair Ralph Whitworth (whose day job is principal of Relational Investors, one of the few groups that have used short slates in the past decade), Apria became the 1st company to voluntarily allow shareholders to nominate directors directly (last month, Hanover Compresser did it as part of a lawsuit settlement). Holders of 5% or more will be able to nominate up to 2 directors which will be placed on the ballot opposite 9 management nominees.

In the wake of the recent actions at Freddie Mac and new revelations at WorldCom (not to mention items like E&Y classifying janitorial inspection services as “audit related” at HealthSouth), it looks like it might be an uphill battle for those that wish the SEC will “go slow” to facilitate the ability of shareholders to nominate directors.

For subscribers, we have posted an interview with Jim McRitchie and Les Greenberg regarding shareholder access for retail investors at

June 7, 2003

Yesterday, the SEC posted the

Yesterday, the SEC posted the adopting rules regarding internal control reports at

The SEC also issued a concept release on whether it should regulate credit rating agencies more – or not at all – at

For subscribers, we have added an “Internal Controls Portal” full of resources and practice pointers regarding getting ready for internal control attestations and reports at

June 6, 2003

A joint survey conducted by

A joint survey conducted by ACCA/NACD was just released with some interesting results. A poll of 600 directors and general counsel demonstrates significant agreement about who bears responsibility for the recent wave of corporate governance scandals – and considerable doubt about the proposed remedies. See

As requested by the SEC after the short-lived Sandy Weill nomination for the NYSE board snafu, the NYSE has started the reform of its own corporate governance – with a special committee recommending disclosure of NYSE officer compensation and bars from such officers sitting on NYSE-listed company boards. See

For subscribers, we have posted an interview with Mayer Brown’s Mike Hermsen and Phil Niehoff on the Effect of Recent Rules on Non-US Auditors and Companies at

June 5, 2003

Recently, CalPERS sent letters to

Recently, CalPERS sent letters to the companies in the Wilshire 2500 index informing them that they withhold their vote for the election of audit committee members as directors if the auditor provides non-audit services. This appears to be aimed at certain forms of tax related consulting and information systems design and implementation services, which are permitted under SEC rules with audit committee approval – without regard to the dollar amount of those services or their relation to the amount of total audit fees. CalPERS does exclude preparation of tax forms and SEC compliance documents from the types of non-audit services that to which it objects.

Yesterday, the NASD proposed that the CEO and Chief Compliance Officer of member firm to jointly certify annually that the firm has adequate compliance and supervisory policies and procedures in place – see

June 3, 2003

To counter Senator Biden’s “legislative

To counter Senator Biden’s “legislative history,” the ABA’s comment letter to the SEC on certifications addressed the applicability of Section 906 certifications to Form 6-Ks, 8-Ks and 11-Ks – see

The June issue of our complimentary E-Minders is up –

For subscribers, we have posted an interview with Jim DiBernardo of Morgan Lewis on Option Buyout Programs at

June 2, 2003

We have posted the transcript

We have posted the transcript of our recent webcast that we held on “Shareholder Access to the Ballot” – we have decided to make it available free to anyone (not just subscribers) to help frame this important debate – see

The panelists included: Andrew Brownstein, Partner, Wachtell Lipton Rosen & Katz; Richard Ferlauto, Director of Pension and Benefit Policy, AFSCME; Lawrence Hamermesh, Professor, Widener University; Richard Koppes, Of Counsel, Jones Day; Ted White, Director of Corporate Governance, CalPERS; and Beth Young, Senior Research Analyst, and Corporate Governance Consultant.