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    1. Highlights from SEC Speaks 2020

      Highlights from SEC Speaks 2020

      The U.S. Securities and Exchange Commission (the “SEC” or the “Commission”) held its annual SEC Speaks conference via Webex on October 8 and 9, 2020. The conference featured remarks from the Chairman and several commissioners, discussions regarding current enforcement initiatives and enforcement priorities for the upcoming year, and an update on litigation, judicial and legislative developments...

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    2. California Seeks to Expand its Board Diversity Mandate

      California Seeks to Expand its Board Diversity Mandate

      After testing the waters with SB 826’s gender diversity mandate, California’s legislature has further committed the state to equitable board representation with its new measure, AB 979 , which was passed on September 1. If Governor Newsom signs the bill into law by the September 30 deadline, California will (once again) lead the way in statutory diversity and inclusion mandates for public company boards...

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    3. Will the SEC’s Proposed Whistleblower Rules Undermine the Deterrent Effect of the Dodd-Frank Act?

      Will the SEC’s Proposed Whistleblower Rules Undermine the Deterrent Effect of the Dodd-Frank Act?

      The U.S. Securities and Exchange Commission’s (“SEC” or “Commission”) will shortly approve proposed amendments to its Dodd-Frank Act whistleblower program . [1] The most controversial proposal concerned a perceived “soft cap” that would limit the amount of awards in most large cases...

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    4. New Amendments to Delaware General Corporation Law Will Make It Easier for Companies to Become Public Benefit Corporations

      New Amendments to Delaware General Corporation Law Will Make It Easier for Companies to Become Public Benefit Corporations

      On July 16, 2020, Delaware adopted new amendments to its public benefit corporation statute, continuing a trend to make this relatively new corporate form more accessible. The amendments, among other things, (i) reduce impediments to use of the public benefit corporation form by eliminating supermajority voting requirements...

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    5. Board Oversight of Human Capital Management No Longer a Nice-to-Have for Smaller Public Companies

      Board Oversight of Human Capital Management No Longer a Nice-to-Have for Smaller Public Companies

      The COVID-19 pandemic has underscored the importance of board-level oversight of workforce issues at public companies. How boards have managed mandatory shutdowns and the ongoing return to work are likely to have a significant and lasting impact on company reputation and performance...

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    6. Impact of the CARES Act on Executive Compensation

      Impact of the CARES Act on Executive Compensation

      The CARES Act restricts how much executive compensation can be paid by employers that avail themselves of loans and loan guarantees from the US Treasury’s Exchange Stabilization Fund under Title IV of the CARES Act. Employers seeking this relief need to carefully assess the impact of these restrictions before applying for loans or loan guarantees. Participation in the Exchange Stabilization Fund is conditioned on complying with the executive compensation restrictions...

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    7. New York Enacts ‘Women on Corporate Boards Study’

      New York Enacts ‘Women on Corporate Boards Study’

      On December 30, 2019, New York governor Andrew M. Cuomo signed legislation requiring the New York State Department of State, partnered with the Department of Taxation and Finance, to conduct a study of the proportion of female members on the boards of domestic and foreign corporations licensed to do business in New York. The “Women on Corporate Boards Study” law requires corporations to report the number of directors on their boards and how many of those directors are women...

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    8. Dodd-Frank Whistleblower Claims are Arbitrable, Second Circuit Holds

      Dodd-Frank Whistleblower Claims are Arbitrable, Second Circuit Holds

      In a win for employers, the Second Circuit Court of Appeals recently held that whistleblower claims under the Dodd-Frank Act are arbitrable. Daly v. Citigroup Inc. , 939 F.3d 415 (2d Cir. 2019). The Second Circuit also held that a plaintiff’s failure to exhaust administrative remedies related to a Sarbanes-Oxley Act claim serves as a jurisdictional bar, warranting dismissal of the claim...

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    9. Delaware Court of Chancery Holds that a Stockholder’s Disagreement with a Board’s Business Judgment and Intent to Pursue a Proxy Contest is Not a “Proper Purpose” for a Section 220 Demand

      Delaware Court of Chancery Holds that a Stockholder’s Disagreement with a Board’s Business Judgment and Intent to Pursue a Proxy Contest is Not a “Proper Purpose” for a Section 220 Demand

      In High River Limited Partnership v. Occidental Petroleum Corp., C.A. No. 2019-0403-JRS, 2019 WL 6040285 (Del. Ch. Nov. 14, 2019) (Slights, V.C.), the Delaware Court of Chancery held that a stockholder’s mere disagreement with a business decision of a board of directors and intent to pursue a bone fide proxy contest is not a “proper purpose” to support a demand to inspect the corporation’s books and records ...

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    10. A Review of Recent Whistleblower Developments

      A Review of Recent Whistleblower Developments

      In late September, Senators Chuck Grassley (R-Iowa), Tammy Baldwin (D-Wis.), Joni Ernst (R-Iowa), and Dick Durbin (D-Ill.) introduced the Whistleblower Programs Improvement Act , which would protect financial whistleblowers who report internally from retaliation. This bill, which mirrors the Whistleblower Protection Reform Act of 2019 and passed in the House of Representatives in May, appears similarly aimed at clarifying that the Dodd-Frank Act’s anti-retaliation provision applies equally to employees who ...

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    11. Recent Director and Executive Compensation Lawsuits Heighten Need for Robust Corporate Governance

      Recent Director and Executive Compensation Lawsuits Heighten Need for Robust Corporate Governance

      Over the past two years, there has been an uptick in the number of lawsuits challenging director and executive compensation. Cases such as In Re: Investors Bancorp , Stein v. Blankfein , Hertz v. Frissora and, most recently, Tornetta v. Musk are setting new precedent and introducing novel legal theories. This alert highlights certain recent lawsuits in this area and sets out considerations for boards setting executive and director compensation in light of these cases...

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    12. Creating a Board of Directors: Key Considerations for Startup Companies

      Creating a Board of Directors: Key Considerations for Startup Companies

      One of the most important decisions that a startup entrepreneur can make is creating a board of directors that will assist the entrepreneur in growing and governing the business.  A company’s board of directors is tasked with  overseeing and advising management, making key decisions about the company’s business strategies, and representing the interests of the company and its stockholders...

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