TheCorporateCounsel.net

November 10, 2008

Game On! The “Blue Justice League”

Something that I’ve been wanting to do for years is create a competitive environment under which we all can learn. I don’t want to use the term “game” because I don’t want to scare those of you with kids that live behind a console. I have built something simple and fun – the “Blue Justice League” is born!

Under two methods of ranking (ie. quantitative and qualitative), the “Blue Justice League” allows you to compete against your colleagues and peers – and lifelong enemies – in feats of professional strength and skill (and learn much in the process). I think it will be a lot of fun, whether you are a deal lawyer with nothing to do right now – or a jammed in-house officer with the need for some stress release.

How to Play: Here are simple instructions on how to participate in the “Blue Justice League.” Know that you can participate anonymously – in fact, you can use more than one “screen name” to play. For example, one of my names is “Jimmy Funk.”

How to Contribute: When you participate in the contests that make up the “BJL,” you will note that some of them have been drafted by members of our advisory board. My profound thanks to them. I’m more than happy to add contributions from you (you don’t need to be an experienced practitioner to do so) – so consider whether you want your name in lights. I’m happy to walk you through the process. Enjoy – and suggestions/criticisms of the BJL are more than welcome!

Corp Fin Issues More Shareholder Proposal Guidance – and Posts Incoming Requests!

On Friday, Corp Fin issued Staff Legal Bulletin 14D, the latest installment in pre-proxy season guidance on shareholder proposals from the Staff. This is the first SLB on proposals since ’05. The Staff Legal Bulletin tackles these topics:

– Inability of proponents to seek companies to amend board charters if state law empowers board to initiate amendments
– Sending defect notices if registered owner proponent hasn’t met holding period
– Requirement that proponents send copy of their correspondence to the SEC Staff
– New e-mail address for the Staff to which no-action requests and correspondence can be sent

In addition, Corp Fin has created a new page that contains incoming no-action requests that the Staff has not yet processed. This will be helpful for those in-house folk who like to track the other companies that have received a similar proposal during the proxy season.

More on Reforming Securities Class Actions Via Shareholder Proposals

Last week, I blogged about a Professor who claims to have developed this model proposal to reform the class action process through the Rule 14a-8 process. Shareholder proposal pro Marty Dunn weighs in by asking: How would such a provision not violate the anti-waiver provision of the ’34 Act?

Marty goes on to explain: Professor Pritchard proposes that shareholders “could adopt an unjust enrichment model by making a partial waiver of the FOTM presumption of reliance in the corporation’s articles of incorporation.” Because the proposed waiver would limit the extent of possible recovery by shareholders under the Exchange Act, the proposal’s waiver would run up against the anti-waiver provision in Section 29 of the Exchange Act. Professor Pritchard addresses this issue in his paper and dismisses it; however, given the SEC’s position regarding Section 29 and mandatory arbitration provisions in company charters, it seems unlikely that the SEC would agree with his reading of Section 29.

– Broc Romanek