TheCorporateCounsel.net

I hope you were able to join us last week for our 2024 Proxy Disclosure & 21st Annual Executive Compensation Conferences. I’d like to send a big shoutout to our colleagues at CCRcorp who made everything happen and worked tirelessly to give our in-person and virtual attendees great experiences! I also want to thank all our fantastic speakers and sponsors. We quite literally couldn’t do it without you!

I thought I would take the opportunity to share some key points I took away or interesting tidbits I enjoyed from the conference panels. Here are a few I happened to be able to jot down, in no particular order:

– Sidley’s Sonia Barros reminded attendees of the importance of involving internal audit in cyber disclosures. For NYSE companies, internal audit is required to make ongoing assessments of risk management and, with the criticality of cyber these days, it may be a significant risk management process that internal audit is looking into. You want to make sure your 10-K disclosures are consistent with findings from any internal audit review.

– Michele Anderson of Latham, Anne Chapman of Joele Frank and Sean Donahue of Paul Hastings discussed 12 things a public company should do to be prepared for activism. Tip #12 was a practical suggestion for your annual D&O questionnaires: There are eight or so questions you need to include in the D&O questionnaire if a contest ensues. There’s no reason not to have those in your D&O questionnaire all the time, so the questionnaire you send an activist under your advance notice bylaw is already ready to go.

– Bill Ridgway of Skadden noted that, while cyber incident response plans should be documented, they should be more akin to guidelines than rigid plans since cyber incidents are so varied. You need to maintain flexibility to respond appropriately to the situation. If you set forth specifics and don’t follow them exactly, the SEC staff will point to that. And they’ve been very focused on controls and process and whether the technical details are making their way to the right people.

– Davis Polk’s Ning Chiu kicked off the panel on Rule 14a-8 and shareholder proposals by acknowledging that shareholder proposals are something many mid- or small-cap companies don’t often deal with but noted that these companies are impacted by proposals nonetheless, as they expand what voluntary disclosures become “market.” When a large company gets a proposal and starts reporting additional information voluntarily, say as a result of a settlement, that practice of reporting becomes the norm and pressures other companies to follow suit, even those that don’t regularly get proposals.

– It can be fun to learn about perks! Mark Borges and Alan Dye of Hogan Lovells described some more novel perks they’ve encountered over the years — like Employer Subsidized Pet Health Assistance and home lawn mowing. For some of these, it might be appropriate to ask first whether they are company-wide benefits. Sometimes they turn out to be a company-wide benefit (as Employer Subsidized Pet Health Assistance was for the particular company) saving you from further analysis. Others may not be widely offered (as, it turned out, lawn mowing was not) and you’ll need to assess under the two-step test to determine whether something is a perquisite or other personal benefit.

There were so many other gems I’d love to include here! You can also check out these two LinkedIn posts from my former colleague and these conference highlights from the Cooley PubCo blog for more.

If you missed any parts of the Conferences, archives of the sessions are now available. Attendees should receive an email today with a link to our 2024 Conference Archives page. Members of TheCorporateCounsel.net who registered for the Conferences can use their existing logins to access the Proxy Disclosure Archives and the Executive Compensation Archives. You may be eligible to earn CLE credit for the replays if you follow the instructions outlined on our CLE FAQ page, but note that you may not earn CLE credit for any session or session combinations that you previously watched live.

If you didn’t register to attend the conferences, you can purchase access to the archives (which will be available until October 15, 2025) online or by emailing sales@ccrcorp.com or calling 1-800-737-1271.

– Meredith Ervine