Author Archives: Broc Romanek

Here is text of the speech from Corp Fin Director John White that he is delivering right now at our Conference. It’s entitled “Where’s the Analysis?” and I urge everyone to read it (and watch the video, live or archived)…

– Broc Romanek

Just in time for today’s Conference – “Tackling Your 2008 Compensation Disclosures: The 2nd Annual Proxy Disclosure Conference” – Corp Fin has released its Executive Compensation Disclosure Report (here is the related press release). During his keynote, Corp Fin Director John White will discuss this new Report, as well as all the panels during today’s Conference (and the panels throughout the next few days of Conferencing also will be analyzing this latest Staff guidance). Hey man, this is “hot off the press”!

It’s not too late to register (or upgrade your Confernce license to add more people; you can do so online through a form available on this site’s home page) – and even if you can’t watch it live, each panel’s video will be archived several hours after its shown live. Register Now!

How to Attend Today’s Conference Online

Come to the home page of either TheCorporateCounsel.net or CompensationStandards.com and click the prominent link that says “Enter the Conference.” Watch the Conference live by clicking a video link that will be on the Conference page that matches the type of player installed on your computer (ie. Windows Media Player or RealPlayer) and the speed of the connection that you have.

Here’s an agenda for today’s Conference; note that times are Pacific/West coast. Panels will be archived several hours after they are shown live.

For Those Watching by Video Webcast (and Want CLE Credit)…

All three of our Conferences have been accredited in nearly every state which requires barred lawyers to earn CLE credit. The exception being one state where our application is pending (Kansas) and two states that don’t recognize our online CLE (Delaware and Pennsylvania). In our FAQs, there is a complete list of CLE credit hours available via web attendance for each Conference.

However, there are two “catches” to earn CLE credit via web attendance:

1. Need to Watch Live – Nearly every state requires “live” – and not “archived” – attendance, which can be a pain for those on the East Coast as the Conferences are on a West Coast schedule (but partial CLE credit can be earned for many states as noted below).

2. Need to Click Periodic Pop-Up Boxes – To comply with the verification requirements of many of the state bars, we have built a system which requires those seeking CLE credit to click on a periodic prompt as they watch. These prompts – in the form of “pop-up boxs” – will occur every 10-15 minutes and last about a minute. By clicking each pop-up box you see, you have proved to your state bar that you attended (yes, this is annoying – complain to them, not us). Each pop-up box will be prominent and will say “You must click me.” Keep clicking each one you see; don’t stop after just clicking one.

Exception to the Two Catches Above: If you are in a self-study state, you can spare yourself from the hassle of watching with the “periodic prompt” – read yesterday’s blog to learn more.

A few other items to note:

– Register for CLE Every Day – If you want CLE credit for web attendance, when you first enter the conference page on the day of the conference and click on one of the video feed links; from there, you must click the prominent link in the red box entitled “How to Earn CLE Credit for Web Attendance” and follow the steps. You will need to do this each day if you watch more than one Conference.

– Earn Partial CLE Credit – If you can only watch a portion of the Conference, you can still earn CLE credit for the amount of time watched (assuming you click on the prompts as noted above and your state bar allow for this; most state bars do); this is particularly relevant for those on the East Coast.

– Limits on Group Watching – You must click the periodic prompts yourself so you can prove to the state bar that you indeed attended (so you can’t earn CLE by sitting in a conference room unless you have your computer with you; unless you are in a “self study” state as noted above).

– CLE Certificate Mailed Out Next Month – If you followed our online CLE system, we will be mailing a CLE certificate to you – but it’s gonna take us a while to get those out (at least a few weeks).

– Pending States – If you seek CLE credit for Kansas where our application is pending, you should sign-in for the prompt system in case they approve the Conference.

Here are a set of FAQs about earning CLE credit for web attendance.

Complete Set of Printable Course Materials Posted

You are now able to obtain – and print out – the course materials related to our three Conferences; on the Conference pages linked to below, there is a complete printable set of materials for each Conference if you look for the link in the upper right corner that has that title. Note that you will need your Conference ID and password to access the course materials (in many cases, your ID and password for TheCorporateCounsel.net or CompensationStandards.com will work if you have registered; if not, your Conference ID and password were e-mailed to you earlier this week).

If you’re watching online, obtain the Course Materials for the your Conference(s) either here – or directly at these links (if you’ll be in San Fran, a set will be handed out to you):

– “Tackling Your 2008 Compensation Disclosures: The 2nd Annual Proxy Disclosure Conference” (to be held Tuesday, 10/9)
– “Hot Topics and Practical Guidance Conference: The Corporate Counsel Speaks” (to be held Wednesday, 10/10)
– “4th Annual Executive Compensation Conference” (to be held Thursday, 10/11)

For Those Coming to San Fran…

All three of the Conferences will be held at the San Francisco Marriott, which is at 55 4th Street (here is the hotel’s phone number if you get lost: (415) 896-1600 /(888) 575- 8934). Once you reach the hotel, you will want to check in to receive your badge, etc. – and if you are early enough, there is a continental breakfast available. This master agenda lists check-in and breakfast times for all three Conferences.

If you haven’t registered yet, but do plan to attend in San Fran – note that our HQ can’t accept registrations after 5 pm Pacific today. However, walk-in registration can be done at the SF Marriott – and bring a check or credit card. (Note: registrations for web attendance still can be done online at any time.)

– Broc Romanek

Our new online CLE tracking system is causing a little confusion. So let me try to clarify a few things. We built the time-stamp system in response to the requirements of many state bars that require that we track whether or not a lawyer is actually watching the Conference.

However, we are aware some state bars only require self-reporting, so that lawyers in those states only need to attest that they attended a CLE program. If you are seeking CLE for one of those states (and you are certain of it, eg. Minnesota), you may skip our tracking system and save yourself a hassle. (This also means that you can watch in a group because you don’t have to click prompts from your own computer.) In other words, when you click a video feed for a Conference this week, you wouldn’t click the button that says “Earn CLE Here” and not fill out the CLE application.

If you fall under these circumstances – and still want a CLE Certificate – simply send an email next week (when we’re back in the office) with your contact information, state bars and bar numbers. If you are registered for the Conference, we can accommodate you as we have in the past.

– Broc Romanek

On Friday, Glass Lewis was sold by its Chinese parent to the Ontario Teachers’ Pension Plan, one of Glass Lewis’ clients, for $46 million (here is the press release). With $106 billion in net assets, this investor is one of Canada’s largest and most aggressive institutional investors and shareholder rights advocates (the investor helped created a Canadian investor group dedicated to improving corporate governance). This is a pretty interesting development: I wonder if a change in ownership alone can help Glass Lewis grow (as well as allegations that conflicts may arise if an activist investor owns a proxy advisor).

Its been reported that RiskMetrics Group (which owns what used to be known as ISS) dropped out of the running to buy Glass Lewis shortly after it filed its Form S-1 to go public last month. Right before it filed the IPO registration statement, RiskMetrics announced a new company structure and brand framework under which ISS became a division and officially took the RiskMetrics name.

SEC Comments: Financials Prepared for International Financial Reporting Standards

It looks like Corp Fin continues to maintain links to comment letters it has issued to foreign private issuers containing financial statements prepared for the first time on the basis of International Financial Reporting Standards (commonly referred to as “IFRS”). The Staff also is posting links to the company’s correspondence. Scroll down on this Corp Fin page to see these links.

VP Cheney’s ’04 Testimony to the SEC’s Enforcement Division

Last week, it was revealed that Vice President Dick Cheney gave testimony to the Enforcment Division back in 2004, as part of the Staff’s investigation of Halliburton (where Cheney used to serve as CEO) over the accounting of cost overruns on several big projects back in ’98. The Staff’s investigation is now closed after the company settled with the SEC two days after Cheney’s testimony, paying a $7.5 million fine.

According to this WSJ article, Cheney didn’t recall being told that Halliburton had booked millions of dollars in construction cost overruns as income, saying that the company’s CFO was “probably” the person “whose general area of responsibility this fell into.” Yeah, probably. And the CEO shouldn’t care about that type of thing…

The SEC released Mr. Cheney’s testimony under a Freedom of Information Act request filed by Dow Jones Newswires. I’d like to post a copy of the testimony, but that might take some doing. Let me know if you see a copy.

– Broc Romanek

Last week, the SEC Staff revised its FAQs on Management’s Report on Internal Control over Financial Reporting. These FAQs were originally jointed issued by Corp Fin and the Office of Chief Accountant in late ’04. [Admittedly, this development snuck by us – it never showed up on Corp Fin’s “What’s New” page, etc. We are redoubling our investigative efforts and promise it will never happen again.]

The Staff eliminated twelve FAQs it believed were no longer relevant or necessary or that were addressed by the SEC’s recent interpretive guidance on management reports. The Staff also added four new FAQs pertaining to foreign private issuers.

Courtesy of Cleary Gottlieb, here is some analysis of the new foreign private issuer FAQs (as well as a blacklined copy of the overhauled FAQs, which is posted in our “Internal Controls” Practice Area):

– Scope of ICFR Evaluation Should be Based on Primary Financial Statements (New FAQ 12) – Management of an FPI that files home country accounts with a US GAAP reconciliation should plan and scope its ICFR evaluation based on the primary financial statements (i.e., home country GAAP). However, the evaluation should consider controls related to the preparation of the US GAAP reconciliation.

– Reference to “Interim Financial Statements” in Material Weakness Definition Does Not Apply to FPIs (New FAQ 13) – Since home country requirements vary significantly and there are no uniform requirements requiring FPIs to file periodic interim financial statements, the reference to “interim financial statements” in the definition of material weakness does not apply to FPIs (unless they are filing on domestic forms).

– Treatment of Entities for ICFR Evaluation Purposes Should Track Treatment in Primary Financial Statements (New FAQ 14) – If an entity is treated differently under primary GAAP (i.e., home country GAAP) than it is in the US GAAP reconciliation (e.g., consolidated in the home country accounts but equity method under US GAAP), the ICFR evaluation should be based on how the entity is treated in the primary financial statements.

– Scope Limitation Permitted for Certain Proportionately Consolidated Entities (New FAQ 15) – Some FPIs are required under home country GAAP to account for certain entities on a proportionate consolidation basis. Management’s ICFR report ordinarily should include all consolidated entities, even if they are consolidated on a proportionate basis. However, in cases where the company does not have the right or authority to evaluate internal controls of the proportionately consolidated entity and lacks the access necessary in practice to make that evaluation, the proportionately consolidated entity’s internal controls may be excluded from the scope of management’s assessment. (Management must still evaluate controls over the recording of amounts relating to the proportionately consolidated entity in the company’s consolidated financial statements). The FAQ specifies certain disclosure that must be provided regarding the exclusion of the internal controls of these entities from the scope of the ICFR assessment.

The remaining FAQs are substantially the same and have been renumbered as a result of the elimination of the 12 old FAQs.

Exec Comp Comment Letters: Here Ye, Here Ye

Here is the latest installment of “The Sarbanes-Oxley Report” from Billy Broc and Dave the Animal: “Exec Comp Comment Letters: Here Ye, Here Ye.”

How to Pick Up Your “Chicago” Concert Ticket

Many of those attending the NASPP Conference next week have registered for a free ticket to a “Chicago” concert on Tuesday, October 9th. The concert is jointly sponsored by the NASPP and Fidelity Investments. Here are some logistics:

Attendees can pick up their tickets to the concert at Fidelity’s registration desk at the San Francisco Marriott until 6:45 pm on Tuesday, October 9th (the day of the concert). After 6:45, Fidelity will have a satellite registration desk at the San Francisco Concourse Exhibition Center (which is the site of the concert) and attendees can pick up their tickets there.

There will be shuttle service from the Marriott to the San Francisco Concourse Exhibition Center. Buses will begin departing from the Marriott after the reception in the Exhibit Hall ends (starting at 7:00 pm). It’s not walking distance, you will need to take a shuttle bus.

Advance registration for the concert is now closed – but attendees can still register at the Conference; remember that only full NASPP Conference attendees are eligible – here are the eligibility requirements. If you didn’t register in advance and show up at the concert site, you will need to prove that you are a NASPP Conference attendee to register there. You can do this by checking in for the NASPP Conference and picking up your Conference badge or by bringing the confirmation that you received when you registered for the NASPP Conference.

– Broc Romanek

You are now able to obtain – and print out – the course materials related to our three Conferences. Note that you will need your Conference ID and password to access the course materials (in many cases, your ID and password for TheCorporateCounsel.net or CompensationStandards.com will work if you have registered; if not, your Conference ID and password were e-mailed to you earlier this week).

If you’re watching online, obtain the Course Materials for the your Conference(s) either here – or directly at these links (if you’ll be in San Fran, a set will be handed out to you):

– “Tackling Your 2008 Compensation Disclosures: The 2nd Annual Proxy Disclosure Conference” (to be held Tuesday, 10/9)
– “Hot Topics and Practical Guidance Conference: The Corporate Counsel Speaks” (to be held Wednesday, 10/10)
– “4th Annual Executive Compensation Conference” (to be held Thursday, 10/11)

Instructions for Those Watching Online: Come to the home page on the day of the Conference and click the prominent link that will be posted that day. Watch the Conference live by clicking a video link that will be on the Conference page that matches the type of player installed on your computer (ie. Windows Media Player or RealPlayer) and the speed of the connection that you have. Panels will be archived several hours after they are shown live.

For Those Watching by Video Webcast (and Want CLE Credit)…

All three of our Conferences have been accredited in nearly every state which requires barred lawyers to earn CLE credit. The exception being one state where our application is pending (Kansas) and two states that don’t recognize our online CLE (Delaware and Pennsylvania). In our FAQs, there is a complete list of CLE credit hours available via web attendance for each Conference.

However, there are two “catches” to earn CLE credit via web attendance:

1. Need to Watch Live – Nearly every state requires “live” – and not “archived” – attendance, which can be a pain for those on the East Coast as the Conferences are on a West Coast schedule (but partial CLE credit can be earned as noted below).

2. Need to Click Periodic Pop-Up Boxes – To comply with the verification requirements of many of the state bars, we have built a system which requires those seeking CLE credit to click on a periodic prompt as they watch. These prompts – in the form of “pop-up boxs” – will occur every 10-15 minutes and last about a minute. By clicking each pop-up box you see, you have proved to your state bar that you attended (yes, this is annoying – complain to them, not us). Each pop-up box will be prominent and will say “You must click me.” Keep clicking each one you see; don’t stop after just clicking one.

A few other items to note:

– Register for CLE Every Day – If you want CLE credit for web attendance, when you first enter the conference page on the day of the conference and click on one of the video feed links; from there, you must click the prominent link in the red box entitled “How to Earn CLE Credit for Web Attendance” and follow the steps. You will need to do this each day if you watch more than one Conference.

– Earn Partial CLE Credit – If you can only watch a portion of the Conference, you can still earn CLE credit for the amount of time watched (assuming you click on the prompts as noted above); this is particularly relevant for those on the East Coast.

– Limits on Group Watching – You must click the periodic prompts yourself so you can prove to the state bar that you indeed attended (so you can’t earn CLE by sitting in a conference room unless you have your computer with you).

– CLE Certificate Mailed Out Next Month – If you followed our online CLE system, we will be mailing a CLE certificate to you – but it’s gonna take us a while to get those out (at least a few weeks).

– Pending States – If you seek CLE credit for Kansas where our application is pending, you should sign-in for the prompt system in case they approve the Conference.

Here are a set of FAQs about earning CLE credit for web attendance.

For Those Coming to San Fran…

All three of the Conferences will be held at the San Francisco Marriott, which is at 55 4th Street (here is the hotel’s phone number if you get lost: (415) 896-1600 /(888) 575- 8934). Once you reach the hotel, you will want to check in to receive your badge, etc. – and if you are early enough, there is a continental breakfast available. This master agenda lists check-in and breakfast times for all three Conferences.

If you haven’t registered yet, but do plan to attend in San Fran – note that our HQ can’t accept registrations after 5 pm Pacific today. However, walk-in registration can be done at the SF Marriott – and bring a check or credit card. (Note: registrations for web attendance still can be done online at any time.)

[Captain XBRL strikes again! As noted in this blog, he drops Britney Spear’s former lawyer from top of the heap…]

Free Stoneridge Webcast

Coming up next Tuesday is the much-anticipated Supreme Court oral argument in the case of Stoneridge Investment Partners v. Scientific-Atlanta. As we have noted in the blog before, this one is a biggie!

Tomorrow, the Center for Business Law & Regulation at Case Western Reserve University is hosting a half-day conference on the issues involved in this important case. This event will be webcast live – and for free.

– Broc Romanek

Over the last day or so, Corp Fin started faxing out a second wave of comment letters as part of Phase One of its compensation disclosure review project. These are new comment letters to companies who had not yet received a letter – this is not a second round of comments to those companies who originally received letters in August.

“Member Appreciation Package”: With just over a week left, the mad dash to register at the last minute has begun as our HQ is overwhelmed. Most waiting this long are watching our popular Conferences by video webcast and are taking advantage of our “Member Appreciation Package,” which enables you to catch all three of these Conferences at a much reduced rate:

– “Tackling Your 2008 Compensation Disclosures: The 2nd Annual Proxy Disclosure Conference” (10/9)
– “Hot Topics and Practical Guidance Conference: The Corporate Counsel Speaks” (10/10)
– “4th Annual Executive Compensation Conference” (10/11)

Register for the “Member Appreciation Package” online – or use this Order Form.

If you have any questions, contact our HQ at info@compensationstandards.com or 925.685.5111.

The SEC’s (and Fed’s) New Regulation R

At last week’s open Commission meeting, the SEC adopted Regulation R. This is a joint project with the Federal Reserve Board. The Federal Reserve Board adopted this Regulation at an open meeting on Monday. Regulation R replaces the SEC’s prior efforts in the area of bank broker activities — including the previously proposed Regulation B – as it creates some exceptions for banks from the definition of the term “broker” under Section 3(a)(4) of the ’34 Act, as amended by the Gramm-Leach-Bliley Act. The SEC also amended existing bank dealer rules that were originally adopted by the SEC in 2003.

Here are opening remarks from Market Reg Director Erik Sirri. Here is the SEC’s adopting release regarding exemptions for banks under Section 3(a)(5) of the ’34 Act – and here is the adopting release regarding definitions of terms and exemptions relating to “broker” exceptions for banks.

Next, the federal banking agencies will issue, after consulting with the SEC, recordkeeping rules and guidelines for bank securities activities. And any future regulatory actions regarding bank securities activities will apparently be jointly issued by the SEC and the bank agencies.

How to Value Illiquid Assets

In this podcast, Espen Robak, President of Pluris Valuation Advisors, provides some insight into how to value illiquid assets, including:

– Given the sub-prime market meltdown, valuation of illiquid assets is big news these days. What areas are implicated in valuing illiquid assets?
– Can you talk a little more about last year’s FAS 157, which requires “fair value” methodologies for valuing assets?
– What different approaches are companies taking to valuing their illiquid assets?

– Broc Romanek

Even though the IRS and Treasury recently pushed back the deadline for some of the 409A provisions, many believe that they didn’t go far enough. Recently, 96 law firms joined together to send this letter requesting a broader extension of the deadline for amendment of deferred compensation plans to comply with Section 409A to the IRS and Department of Treasury.

Corp Fin Guidance: Filing Date Adjustments, Filing Deletions/Withdrawals, Etc.

Given the number of questions we get on the topic, I was pretty excited to see Corp Fin issue written guidance about how they handle EDGAR filing date adjustments, post-acceptance corrections, filing deletions and withdrawals, and continuing hardship exemptions.

I imagine that if the Office of Disclosure Support continues to issue this type of guidance on relatively common situations like this, it will diminish the number of phone calls they receive…

Clawbacks and Careful Drafting

From Mike Melbinger’s blog: A case decided earlier this month caught my attention, as it illustrates three important points. In JPMorgan Chase & Co. v Pierce, JPMorgan sued its former Senior Vice President Sandra Pierce to recover $376,000 in compensation Ms. Pierce received from 1999 through 2003 under certain Stock Award Agreements. Pierce left JPMorgan in December 2004 to accept a position with another Bank. The Stock Award Agreements authorized JPMorgan to “claw back” stock award compensation Pierce received if she became employed by a JPMorgan competitor and “perform[ed] the same or substantially similar functions to those which [she] performed while employed by [JPMorgan].” [ed. note: we have posted the opinion in the “Clawback Provisions” Practice Area on CompensationStandards.com.]

The court faced three interesting and relevant issues: (1) whether the claw back provisions of the award agreements was enforceable, (2) whether JPMorgan Chase had properly delegated the authority to make the decision on competitive employment to is Human Resources Director, and (3) whether the court should apply a deferential standard of review to the decision of the Human Resources Director.

The court dispose of the first issue easily, finding that the claw back provision was clearly enforceable as a matter of Delaware contract law.

The second issue was a bit closer, since JPMorgan’s documentation of its delegation of authority to the Human Resources Director was less than thorough. (Make a note: be sure to document all delegations of authority carefully and fully.)

The third issue was the unusual feature of this case/decision – its discussion of the judicial standard of review applicable to ERISA cases. Many of us have – for years – drafted our equity compensation plans (and other non-ERISA plans) to include language we developed for ERISA plans following the US Supreme Court’s decision in Firestone v. Bruch (1989). Firestone held that if the plan document reserved to the plan administrator the power and authority to apply and interpret the plan’s (ambiguous) terms in its sole discretion, and the plan administrator made such a decision, then the court would only overturn that decision if it found the administrator’s decision to be “arbitrary and capricious” – a high standard. We add this language in the hope that a court seeing this interpretive language will look to ERISA, by analogy, for guidance and apply the arbitrary and capricious standard. In this case, the court did not rely solely on the arbitrary and capricious standard, but seemed to apply a similar analysis in finding in favor of JPMorgan and its Human Resources Director.

Act Now: Join Mike – as well as in-house practitioners from McDonalds and Intel – to learn more about protective/proactive plan drafting and claw backs for their panel at the “4th Annual Executive Compensation Conference.” You can catch this Conference in two weeks either in San Fran or by video webcast. And you can watch this Conference online – along with our “2nd Annual Exec Comp Disclosure Conference” and “Hot Topics Conference” as part of a “Member Appreciation Package.”

– Broc Romanek

Yesterday, the SEC pulled out all the stops in marketing its “landmark” announcement that the XBRL taxonomy for US GAAP is ready to be tested by third parties (but not the general public quite yet), with an intended completion date of December 5th. It certainly is quite an achievement for the team that has worked closely with the SEC Staff to get this project moving faster than imaginable. This development follows last week’s announcement that the SEC has made the source code for its Interactive Financial Report Viewer available for free use by the market.

This is all to the good. However, I get a little worried about the Chairman’s remarks that rules could be proposed in the Spring and adopted as early as next Fall – and that these final rules could have include a schedule mandating XBRL. Something this big – and this technical – takes time based on historical experience with Edgar, etc. [Perhaps an omen was the fact that the SEC’s press conference yesterday was delayed half an hour due to technical glitches. They were breaking out the duct tape!]

It is comforting to know that – for the last year – 8,300 U.S. financial institutions have been using XBRL to submit their quarterly Call Reports to the banking regulators. But my faint memory of Call Reports is that they are fairly simplistic compared to US GAAP – but it’s still comforting to know that there is some XBRL experience out there beyond the several dozen pilot volunteers.

During his remarks, Chairman Cox waxed about a mythical Sally Q spending more time with her kids because XBRL saved her research time. I understand the point, but I don’t really view XBRL as a substitute for reviewing SEC filings. We all know that two companies with identical situations might well report completely different numbers for a particular line item because each selected a different accounting treatment. Reading the financials in their full context will continue to remain important. [Here is an old article about putting together a form on the fly; I’m not sure how this could work and keep numbers in context – maybe someone could explain that to me?]

In the end, I think the bigger impact of XBRL will be on the ability for companies to internally put together their financials. Yes, there might be cost savings – but there also will be implementation costs. But the real change here might be a streamlined and quicker process for gathering the data that makes up a company’s financials. It’s gonna be an interesting ride for Captain XBRL…

Misreporting Results: More Than One Way to Do It

From Lynn Turner: People often wonder ask why there are restatements – corrections of errors – in financial statements. Of course, fraud – such as the multitude of companies in a list as long as your arm such as Enron, Worldcom, Parmalot, Adelphia, Lernout and Hauspie, Tyco, etc. – has been one reason for restatements have wrecked havoc on shareholder portfolios.

But the fact that financial statements were just flat out done wrong the first time can also be a key reason. As noted in this 1998 CFO.com article citing two surveys, a very high percentage of financial executives acknowledge themselves that they had done their financial statements wrong. And many more were using flexibility in accounting rules to present a less balanced, but more favorable view, of the company.

No wonder since the corporate scandals began to break in 2001 and 2002, and new reforms have subsequently been implemented, that there has been plenty of restatements necessary. If people in a survey were willing to say the books were cooked, one can only imagine how much cooking was actually going on. You can’t have the high percentage of books being cooked that are cited in these surveys and avoid a wave of restatements. In the culture evidenced by the surveys, getting it done right the first time was not rewarded. As a result, a lot of companies are getting a chance to get it right the second time.

Ten Compensation Disclosure Fixes

The Sept-Oct 2007 issue of The Corporate Counsel – which has just been sent to the printer – includes important analysis and guidance regarding fixes companies will need to make to their proxy disclosures next year given the SEC’s recent wave of comment letters – and much more.

We have posted this blurred issue so that non-subscribers can get a sense of it before trying a 2008 no-risk trial, under which you can get this issue and the rest of 2007 for free. The issue includes pieces on:

– Ten Compensation Disclosure Fixes
– Disclose Performance Target Levels Whenever Possible
– Make Benchmarking Disclosure Meaningful
– Provide the Whole Termination and Change-in-Control Picture
– Maximize the Utility of the Compensation Tables
– Staff Affirms “No-Sale” for Restricted Stock
– Use of S-3ASR instead of S-8 to Register Stock Plan?
– Rule 14a-8 Proof of “Record” Ownership—Staff Says No to Investment Advisor Affirmation
– Filing Form T-1 After S-3 Effectiveness—Don’t Use Form 8-K
– Updating the Exhibit 5 Legality Opinion at Each Shelf Takedown
– California’s Listed Issuers/Securities Exemptions Updated
– Rule 144—Acting in Concert Under a 401(k) Plan

– Broc Romanek

Yesterday, the NYSE sent an email to listed companies informing them that Rule 452 won’t be revised to eliminate broker discretionary voting in director elections for next proxy season. Previously, it was the NYSE’s stated intention to have the rule change in place and effective by January 1, 2008. As could be expected, the NYSE’s proposal is being considered by the SEC as part of the broader range of issues relating to the SEC’s own shareholder communications and proxy access proposals.

John White on CD&A, etc.

Don’t forget the keynote presentation by John White, the Director of the SEC’s Division of Corporation Finance at the “Tackling Your 2008 Compensation Disclosures: The 2nd Annual Proxy Disclosure Conference.” The Conference is two weeks from today; don’t procrastinate any further.

Also, Paula Dubberly – an SEC Associate Director and one of the primary authors of the SEC’s executive compensation rules – will be sitting on five panels during this critical Conference.

Act Now: You can catch this critical Conference either live in San Francisco or via video webcast. Remember how practical last year’s Conference was – this year will be no different: Register today.

“Member Appreciation Package”: Most folks watching this popular Conference by video webcast are taking advantage of our “Member Appreciation Package,” which enables you to catch all three of these Conferences at a much reduced rate:

– “Tackling Your 2008 Compensation Disclosures: The 2nd Annual Proxy Disclosure Conference” (10/9)
– “Hot Topics and Practical Guidance Conference: The Corporate Counsel Speaks” (10/10)
– “4th Annual Executive Compensation Conference” (10/11)

Register for the “Member Appreciation Package” online – or use this Order Form.

If you have any questions, contact us at info@compensationstandards.com or 925.685.5111.

Latest Developments in Capital Market Deals

Tune in tomorrow, Wednesday, September 26th for this webcast – “Latest Developments in Capital Market Deals” – to learn about all the latest deal trends and developments featuring these experts:

– Jon Abram, Partner, Dorsey & Whitney
– Robert Hayward, Partner, Kirkland & Ellis
– Michael Kaplan, Partner, Davis Polk & Wardwell
– Erika Robinson, Partner, WilmerHale
– Robert Santangelo, Managing Director, Credit Suisse

– Broc Romanek