November 1, 2016

Governance Ratings: ISS Tweaks “QualityScore” & Verification Has Begun

Yesterday, ISS announced the latest release of its governance ratings product – which also was renamed to “QualityScore” from “QuickScore.” Here’s the 139-page technical document. In addition to board diversity and board refreshment areas being added, one area that appears to have been updated involves proxy access – with subscribers now being able to view the details of a company’s proxy access bylaw provision.

Last year, ISS included a question on proxy access, but that was “zero weighted” & was included for informational purposes only. This year, it counts. The QualityScore will give credit to a company for having proxy access – but the existence of any “problematic provisions”- e.g. counting mutual funds under common management as separate shareholders under the aggregation limit, requiring a pledge to hold shares past the annual meeting date, providing the board with broad & binding authority to interpret the proxy access provision or combinations of other problematic provisions – could be deemed sufficient to “nullify the proxy access right”  & result in no credit being given. See this Gibson Dunn blog for a larger summary of the changes.

As noted in this blog from Davis Polk’s Ning Chiu, the data verification period began yesterday – and runs through November 11th. QualityScores will be published on November 21st.

By the way, with this rebranding to “ISS QualityScore,” it now has made more name changes than Jefferson Airplane. My favorite was GRid 2.0…although CGQ was nice…

“Hulk-O-Mania” Redux: New Questions on 3rd Party Litigation Funding

If you follow high-brow websites like TMZ and “The Hollywood Reporter” as religiously as I do, you’re no doubt up-to-speed on the controversy surrounding billionaire Peter Thiel’s funding of Hulk Hogan’s recent invasion of privacy suit against Gawker Media. The Hulkster rang the bell to the tune of $140 million in that lawsuit, but Thiel’s role in the case has focused new attention on third-party litigation funding – and that attention hasn’t been limited to the media.

As this D&O Diary blog points out, a pair of recent court decisions in Pennsylvania & Delaware have raised new questions about the legal issues that have long surrounded litigation funding arrangements:

One of the most interesting and important recent litigation-related developments has been the rise of third-party litigation funding. An important part of this development has been the more or less general view that there is nothing improper about these kinds of arrangements and, in particular, that litigation funding does not represent improper champerty or maintenance, as long as the actual plaintiff continues to control the case.

However, a recent decision from a Pennsylvania appellate court suggests that the somewhat unusual litigation funding arrangement involved in an attorney fee dispute was “champertous” and therefore invalid. This decision and another recent decision from Delaware nullified the specific funding arrangements presented to the courts in those cases; the question is what these decisions may say about litigation funding in general.

Some of the broad-brush language employed by the courts in these two cases might cause concern to litigation funders. However, each of these cases involved highly unusual circumstances – the funding arrangements the courts were asked to review were very different from the straightforward funding structures that litigation funding firms typically employ.

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John Jenkins