I hope you were able to join us on Tuesday for our “2025 Proxy Disclosure Conference” and yesterday for our “22nd 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 15 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, well, as they say on TV – “hey relax guy!” – because 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 2025 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 2025 Proxy Disclosure & 22nd 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.
Finally, we bid farewell to our 2025 PDEC Conferences with one more quote from Fear and Loathing in Las Vegas:
“Maybe it meant something. Maybe not, in the long run, but no explanation, no mix of words or music or memories can touch that sense of knowing that you were there and alive in that corner of time and the world. Whatever it meant.”
Mahalo from Las Vegas, everybody – and safe travels!
Earlier this month, Meredith blogged about some advice that Cicely LaMothe, Deputy Director of Disclosure Operations & former Acting Corp Fin Director had for “digital asset treasury companies,” or DATCos, concerning the disclosures that the Staff expects to see from them. This DLA Piper blog takes a deep dive into the DATCos and addresses a variety of legal and business considerations associated with them. This excerpt reviews the capital markets tools being deployed in support of DATCo strategies:
A broad range of capital market tools is being leveraged to financially engineer DAT strategies, including at-the-market (ATM) offerings, private investments in public equity (PIPE), equity lines of credit (ELOC), convertible notes, warrants, preferred equities, de-SPACs, reverse mergers, and innovative credit facilities linked to staking yields and/or treasury performance.
ATM programs, which allow control over the timing of sales with minimal market impact, enable DATs to target sales when shares are trading at a premium to the treasury token’s net asset value and pause sales when market conditions are not favorable. PIPEs have gained traction among newly public or smaller companies looking to efficiently raise capital for digital asset reserves.
Convertible notes, coupled with derivative structures to help mitigate dilution, have also become attractive instruments, especially for high-growth companies seeking to rapidly scale their digital asset reserves. High demand for DATs in the convertible bond market has recently allowed such companies to negotiate favorable terms, such as zero-interest coupons and high conversion premiums. Companies announcing DAT strategies alongside capital raises have experienced significant stock movement.
The momentum in strategically deploying capital-raising tools for financial engineering is expected to continue throughout 2025.
Other topics covered in the blog include the reasons for institutional investors’ interest in DATCo equities, DATCo trading strategies, corporate governance issues and regulatory developments.
Bass Berry’s Kevin Douglas & Toyin Edogun recently blogged about considerations for IPO companies when considering whether to list on Nasdaq or the NYSE. In case you’re ever asked to jump on a Zoom call to discuss this topic, this excerpt will provide you with a handy cheat sheet for summarizing the differences between the two exchanges:
– The NYSE functions as an auction market in which participants transact directly with each other, whereas market participants on the Nasdaq make purchases and sales via a market maker.
– Nasdaq’s annual listing fees are generally more favorable to listed companies than the NYSE’s listing fees. For example, the current maximum annual listing fee for companies listed on the NYSE is $500,000, compared to a maximum annual listing fee for companies listed on Nasdaq of $193,000. Additionally, while the NYSE imposes a fee to list additional shares, Nasdaq does not charge a fee for the listing of additional shares.
– Companies listed on Nasdaq have the ability to participate in certain widely-recognized Nasdaq-specific indices, including the Nasdaq-100 Index (which includes 100 of the largest non-financial companies listed on the Nasdaq), which do not have an NYSE equivalent. The inclusion of companies in such recognized indices may increase the visibility and potential trading volume of companies included in any such index.
– While the corporate governance requirements of each exchange are quite similar, there are certain differences between these corporate governance requirements, with the Nasdaq’s requirements being slightly less stringent on balance.
The blog also reviews the comparative performance of the two exchanges over the past couple of years in attracting new IPO candidates, and also discusses recent moves from one exchange to the other by existing public companies.
You can register to attend today’s conference online and receive access to the archive of yesterday’s program 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 need technical assistance, members of our team will be available within the platform and via email at info@ccrcorp.com to assist you throughout the conferences. If you need technical assistance, members of our team will be available via email at info@ccrcorp.com to assist you throughout the conferences.
– Access to Archives & On-Demand CLE: Your registration includes access to the conference archives, which will be available until October 23, 2025 – 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 platinum sponsor for this year’s conferences is Goodwin, our gold sponsor is Ballard Spahr, our silver sponsors are Cooley, King & Spalding, Kirkland & Ellis, Latham & Watkins, Morrison Foerster, O’Melveny, Sidley, Troutman Pepper Locke, and Wilson Sonsini – and a special shoutout to our breakfast roundtable sponsors Cleary and Dragon GC. We are extremely grateful for their support of these fine law firms and businesses and invite you to join them in sponsoring next year’s conferences.
Finally, here’s today’s Fear and Loathing in Las Vegas quote:
“We’d be fools not to ride this strange torpedo all the way out to the end.”
Privilege issues in internal investigations can be difficult to navigate, so the 6th Circuit’s recent decision in In re: First Energy Corporation overruling a district court decision holding that the attorney-client and work product privileges didn’t apply when the investigation was initiated for business advice is welcome news for public companies and their advisors. Here’s an excerpt from Wachtell’s memo on the decision:
In FirstEnergy, shareholders brought a securities fraud class action suit against FirstEnergy and sought in discovery documents from FirstEnergy’s internal investigations related to a bribery scheme. The district court ordered broad production of the company’s internal investigation files, reasoning that privilege and work-product protection did not apply because the company “initiated the investigations for business advice, not legal advice” and “later used the fruits of the investigations for business decisions.”
The Sixth Circuit took the rare step of granting mandamus and vacating the lower court’s order compelling the production of the internal investigation materials. The Sixth Circuit held that there is “no way to affirm the district court’s ruling without abandoning nearly a half century . . . of jurisprudence concerning the scope of the attorney-client privilege and work-product doctrine or without discouraging full and frank communication between companies and their attorneys when investigating their own wrongdoing.”
The memo notes that the Court also held that limited disclosures to the government in connection with a deferred prosecution agreement and providing documents to the company’s auditors didn’t waive applicable privileges. The Court based that conclusion on the fact that the material disclosed “was not privileged, was already discoverable, or consisted of ‘bare conclusions from the investigation,’ not ‘the substance of the[] attorney’s advice.'”
This Woodruff Sawyer blog discusses employed lawyer insurance policies, which are intended to protect in-house attorneys in the (rare) situations in which they find themselves being sued for malpractice by the corporation that employs them. This excerpt summarizes the coverages typically provided by those policies:
Employed lawyers insurance can cover the general counsel of a company, other staff attorneys, and, in some cases, legal assistants and paralegals acting under the supervision of an in-house attorney.
Some policies cover attorneys who are not employed by a company but who are acting on behalf of the company pursuant to a written agreement.
Typical coverage limits for employed lawyers policies range from $1 million to $5 million. The limit a company will purchase depends on factors like the risk tolerance of the company, the number of employed lawyers on staff, and the nature of the legal services provided.
The policy usually covers:
– All claims made against employed lawyers (unless specifically excluded) that arise out of the performance of, or alleged failure to perform, legal services for the employer
– Legal fees and expenses incurred in defense of employed lawyers accused of legal malpractice
– Amounts paid in damages or settlements, in some cases
– Punitive damages with “most favorable jurisdiction” language (with some insurers)
The blog also identifies some typical exclusions, which include securities claims, liability arising from non-legal professional services, certain employment practices claims, misappropriation of trade secrets and bodily injury, emotional distress and property damage claims. – John Jenkins
We’re kicking things off today in Las Vegas with our “Proxy Disclosure Conference” and we’ll follow that up tomorrow with our “22nd Annual Executive Compensation Conference.” The agendas for our conferences include 15 substantive panels over 2 days – as well as a discussion about the SEC’s regulatory agenda between two former senior SEC staff members, our own Dave Lynn, former Chief Counsel of the Division of Corporation Finance, and Skadden’s Brian Breheny, former head of the SEC’s Office of Mergers and Acquisitions and its former Deputy Director, Legal and Regulatory Policy. Here’s what’s on tap for today.
We’re very excited to see everyone in Las Vegas, but if you can’t be here in person, you can still register to attend today’s program and tomorrow’s “22nd 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 need technical assistance, members of our team will be available within the platform and via email at info@ccrcorp.com to assist you throughout the conferences. If you need technical assistance, members of our team will be available via email at info@ccrcorp.com to assist you throughout the conferences.
– Access to Archives & On-Demand CLE: Your registration includes access to the conference archives, which will be available until October 23, 2025 – 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 platinum sponsor for this year’s conferences is Goodwin, our gold sponsor is Ballard Spahr, our silver sponsors are Cooley, King & Spalding, Kirkland & Ellis, Latham & Watkins, Morrison Foerster, O’Melveny, Sidley, Troutman Pepper Locke, and Wilson Sonsini – and a special shoutout to our breakfast roundtable sponsors Cleary and Dragon GC. We are extremely grateful for their support of these fine law firms and businesses and invite you to join them in sponsoring next year’s conferences.
Finally, in honor of our host city, here’s today’s Fear and Loathing in Las Vegas quote:
“There’s a big … machine in the sky, … some kind of electric snake … coming straight at us.”
White & Case recently published a survey of publicly filed insider trading policies. One of the topics addressed was the frequency with which policies addressed the issue of “shadow trading.” This excerpt describes the survey’s findings:
“Shadow trading” is the practice of an insider trading shares of another company that is “economically linked” to the insider’s company, while in possession of MNPI about the insider’s company. Companies are “economically linked” when the MNPI about the insider’s company could influence the market price of shares of the other company. This issue came to the fore in SEC v. Matthew Panuwat, when the SEC successfully prosecuted an insider trading case based on shadow trading.
Companies may want to reconsider the extent to which their insider trading prohibitions apply to securities of other companies, considering the potential reputational consequences of an insider trading action. 20% of companies surveyed specifically prohibit “shadow trading” by insiders, which was an increase (by 2%) from what we saw in our 2024 survey.
Note that most companies’ insider trading policies already explicitly apply to trading in the securities of the company’s customers, suppliers, and strategic partners etc., based on any information about such other companies learned through the individual’s employment. This concept is drafted more narrowly than the concept of shadow trading.
Other topics addressed in the survey include the prevalence and duration of quarterly blackout periods, persons subject to quarterly blackouts and preclearance policies, and how hedging and pledging, exchange funds, and gifts are addressed.
The September-October issue of the Deal Lawyers newsletter was just sent to the printer. It is also available online to members of DealLawyers.com who subscribe to the electronic format. This issue includes the following articles:
– Integrated Agreements: It’s Not Always About Conflicts
– Biotech Spin-Off Transactions
– New State Notification Requirements for Mergers and Acquisitions
– Advance Notice Bylaws: Delaware Court of Chancery Gives Dissidents Another Bite at the Apple
– Renewal Season is Here! Is It Time to Renew Your Membership?
The Deal Lawyers newsletter is always timely & topical – and something you can’t afford to be without to keep up with the rapid-fire developments in the world of M&A. If you don’t subscribe to Deal Lawyers, please email us at info@ccrcorp.com or call us at 800-737-1271.
ExxonMobil’s recently announced retail voting program has prompted a negative reaction from certain segments of the corporate governance industrial complex, so I guess it was inevitable that somebody would eventually cobble together a lawsuit challenging the program. According to this Investment Executive article, “eventually” is now:
The City of Hollywood Police Officers’ Retirement System has filed a proposed class action in U.S. district court on behalf of Exxon shareholders, against the company and its board of directors, alleging that they are breaching their fiduciary duties in connection with the company’s adoption of its “retail voting program.”
The program, which was approved by the U.S. Securities and Exchange Commission (SEC) last month, enables the company to automate retail investors’ votes in favour of management.
The proposed lawsuit is seeking an injunction to prevent the company from introducing the program, which it alleges infringes on shareholders’ voting rights and is designed to stifle shareholder dissent and entrench management.
It argues that the program impairs the voting rights of shareholders that opt into the program, “based on inadequate disclosures.” It also argues that the votes of shareholders that can’t or don’t opt in will be diluted.
By adopting the program, the lawsuit alleges that the company’s directors breached their fiduciary duties.
“By attempting to weaponize a largely disengaged body of retail shareholders … the [program] affirmatively violates federal law, and constitutes both an unlawful entrenchment device and a breach of fiduciary duty under New Jersey law,” the plaintiffs’ filing alleged.
As I mentioned in my earlier blog, I was already planning to enroll in any similar program that the companies I invest in offer, but now that I know I’m allegedly being “weaponized,” I’m even more eager to sign up. I’ve never been weaponized before, and frankly, it sounds kind of sexy. (I don’t get out much.)
It didn’t take long for Prof. Ann Lipton to flag one of the potential problems with this lawsuit – the uncertainties concerning whether shareholders have a right of action to bring claims alleging violations of the proxy rules. I don’t know all of the intricacies about implied private rights of action, but my guess is that this is very much a live issue in the case. The federal courts haven’t been kind to claims asserting private rights of action under Rule14a-9 in recent years, and to the extent that other provisions of the proxy rules are claimed to provide such a right, my guess is that they’ll be equally skeptical.
By the way, check out this blog from Broc Romanek highlighting a Cooley Alert that contends some of the arguments asserted against Exxon’s program are misleading.
