July 29, 2010

Say-on-Pay Solicitation Playbook: Practical Guidance on Strategies and More

I just finished writing a special July-August issue of The Corporate Counsel entitled “Say-on-Pay Solicitation Playbook: Practical Guidance on Strategies and More.” You will need this issue to help you prepare for mandatory say-on-pay. It includes analysis on:

– A Wake-Up Call: The Big Three
– The Drill Down: Why Did Shareholders Reject Motorola, Occidental and KeyCorp?
– The Cry for Shareholder Engagement: What is “Shareholder Engagement”?
– The Roadmap: How (and When) to Engage Effectively
– Overcoming Reg FD Concerns about Engagement
– Peeking Under the ISS Hood
– How Proxy Advisors & Major Institutions (& Employees) Vote on Pay
– The Roadmap: “When” and “How” to Hire a Proxy Solicitor
– The Preliminary Vote Count Looks Close: What Can You Do?
– Confidential Voting Policies: Proper Implementation
– How to Calculate Voting Result Percentages: Read Your Bylaws (and Compare with Your Proxy)
– The Importance of Making Your Compensation Disclosure “Usable”
– How to Gear Up for Mandatory Say-on-Pay

Act Now: To have this issue sent to you, try a “Half-Price for Rest of ’10 no-risk trial today.

Dodd-Frank: Why There Might Be So Many Technical Issues

The excerpt below from a Gibson Dunn email does a nice job of explaining how the process leading to the passage of Dodd-Frank may have created more implementation issues compared to a “normal” bill:

As we move into the implementation phase of this legislation, one point to bear in mind is how many technical — and not so technical — issues and problems we will discover in this 2,300 page bill. One reason for the likely surfeit of problems, ironically, is the manner in which the conference on the bill was conducted. Normally, the vast majority of the work done in conference is accomplished behind closed doors, with staff toiling over language and checking each-other’s work.

The conference on the Dodd-Frank bill, in contrast, was open and televised, and the “work” was done by members, on the fly, with little time or ability for anyone to check their work. In a sense, the conference was much like a committee mark-up, where amendments are added through a process that is often loosely-structured due to the expectation that problems can be cleaned up on the floor or in conference. When a conference is conducted in this manner, you create a remarkably transparent process, but there is little or no opportunity after the fact to clean up errors and identify unintended consequences prior to enactment. And Congress was using live ammunition.

Another consequence of the transparent, free-flowing conference process was that more issues than one might normally expect were committed to regulatory discretion. In the absence of quick consensus, decisions on thorny issues were deferred for regulatory consideration. It has been oft noted that nearly 250 regulations and 70 studies are required by the Act.

Two results of the conference logically follow. First, agencies will grapple with hundreds of thorny issues that Congress could not or chose not to decide and also attempt to clean up and rationally interpret errors or ambiguities in the legislative text through regulations. Second, Congress (and Chairmen Frank and Dodd indicated as much during conference deliberations) is likely to take up a technical corrections bill some time in the coming year. Of course, if that bill comes up in 2011, it will do so without Senator Dodd, who is retiring.

Dodd-Frank: A Look Behind the Scenes of How It Got Passed

This recent Washington Post article tells the story about how key lieutenants behind scenes ensured passage of Dodd-Frank. It’s worth reading…

– Broc Romanek