TheCorporateCounsel.net

As some board committees are exercising their soon-to-be “right” to hire advisors – or if the governance committee hires a new outside law firm to conduct a one-time governance “gut-check” – the question remains: who does the advisor/law firm work for?

This question must be resolved right away when a retainer letter is drafted. The best answer we have heard so far is “individual directors on behalf of the board.” If you have a different conclusion or a sample retainer letter for a board committee, contact broc.romanek@thecorporatecounsel.net.

Today, we posted three new portals on GreatGovernance.com – Whistleblower; Audit Committee; and Corporate Governance/Nominating Committee. These portals will be continously expanded over time.

Yesterday, the SEC adopted final rules regarding analyst certifications – see the related Washington Post article at http://www.washingtonpost.com/wp-dyn/articles/A38058-2003Feb6.html.

CCBN has posted a white paper on how to post corporate governance information on corporate websites – http://media.corporate-ir.net/media_files/priv/e-mails/ccbn/corpgov/CorpGov_Whitepaper.pdf.

For TheCorporateCounsel.net subscribers, we just posted several sample back-up certifications – with more samples to come soon.

William Donaldson had his Senate confirmation hearing yesterday – and sounds like the SEC will continue to not be a “kinder, gentler” place…the NY Times headline captures the essence of his testimony – “SEC Choice Says He’s No Harvey Pitt.”

The FEI is wrapping up a study on the compliance costs of Sarbanes-Oxley…could be an eye-opener…going private anyone?

For TheCorporateCounsel.net subscribers, we have posted our first interview – Lou Rorimer on Proxy Season Disclosure.

At a recent conference, Corp Fin Director Alan Beller stressed that the SRO listing standard proposals would be out by the end of February – and that the SEC staff was still trying to “harmonize” the NYSE and Nasdaq proposals.

At its open meeting yesterday, the SEC proposed a self-regulatory organization for mutual funds – and postponed final rules on analyst certifications until today’s open meeting.

For TheCorporateCounsel.net subscribers, we have posted sample codes of ethics!

In analyzing the new attorney conduct rules, the application to chief legal officers remains murky if that person uncovers the problem – as that person then must report to him/herself and get back to him/herself, etc. There are other issues like this that undoubtably will become grist for a staff legal bulletin.

Corporate governance reforms may not always be what they seem – check out this Washington Post article on Disney – http://www.washingtonpost.com/wp-dyn/articles/A20824-2003Feb3.html.

The SEC has posted the adopting release regarding disclosure of voting policies and records by mutual funds at http://www.sec.gov/rules/final/33-8188.htm.

On TheCorporateCounsel.net, we are putting the finishing touches on our final redesign of the site – let us know if further tweaks are needed – send suggestions to broc.romanek@thecorporatecounsel.net. We have also posted our February E-Minders at http://www.thecorporatecounsel.net/E-minders/.

On Wednesday, the Senate will consider the confirmation of William Donaldson as SEC chair. Mr. Donaldson has been busy selling his multi-million dollar portfolio of securities in anticipation.

Reflecting the slow deal market, after a failed attempt to merge with Morgan Lewis and a defection by many top partners, it appears that Brobeck, Phleger & Harrison is close to disbanding.

At a conference in San Diego today, Marty Dunn, Corp Fin Deputy Director, revealed that the staff already has received over 450 requests for no-action relief regarding shareholder proposals – which equals the near record amount received during all of last proxy season. At this rate – because February and March are very heavy months to process these requests – it appears that the staff might process more than 50% more than they have at any other time.

The SEC has posted the adopting release regarding attorney conduct – along with a second release seeking additional comments on the proposed noisy withdrawal provisions and an alternative approach.The adopting release is at http://www.sec.gov/rules/final/33-8185.htm – and the proposing release is at http://www.sec.gov/rules/proposed/33-8186.htm.

In connection with the audit of Xerox, the SEC has filed fraud charges against KPMG – and four partners of KPMG – in a NY federal district court – see http://www.sec.gov/news/press/2003-16.htm.

The SEC has posted the final rules on auditor independence implementing SOX 208, 201-204 and 206 at http://www.sec.gov/rules/final/33-8183.htm.

Later today, we will post our “Sarbanes Oxley Scorecard” on the home page of TheCorporateCounsel.net – to facilitate your ability to access each proposing and adopting release. In addition, we will post a checklist of disclosure items to consider for this year’s 10-K early next week as part of the February E-Minders.