Frances Haugen, a former product manager at Facebook, recently revealed her identity as the whistleblower who reported Facebook to the U.S. Securities and Exchange Commission (SEC) and provided internal Facebook documents to Congress and to the press. Questions have arisen about what kinds of protections she and other whistleblowers have when it comes to sharing documents with government regulators, Congress, and news outlets...

Social criteria examine how it manages relationships with employees, suppliers, customers, and the communities where it operates. Governance deals with a company’s leadership, executive pay, audits , internal controls , and shareholder rights..

The roles and responsibilities of members of the board of directors of private companies are generally dictated by the fiduciary duties that such directors owe to the corporation and its stockholders...

We often hear about a board of directors being sued, but can a plaintiff really sue a corporation's board?   According to a recent decision by the Federal Circuit,  a plaintiff can't sue a board, at least not as a separate entity in federal court...

In a recent post (“Environmental, Social and Corporate Governance: What are the Risks, Really?”), we discussed the various risks, trending issues, and emerging concerns arising from environmental, social, and corporate governance factors (“ESG”)...

Massachusetts Governor Charles Baker’s COVID executive order permitting public companies incorporated in Massachusetts to hold virtual-only shareholder meetings is set to expire on August 14, 60 days after the June 15 lifting of the COVID-19 state of emergency in Massachusetts...

On June 16, 2021, the U.S. House of Representatives passed H.R. 1187 (the “Corporate Governance Improvement and Investor Protection Act”), which would require the Securities and Exchange Commission (“SEC”) to establish rules requiring public companies to disclose certain ESG metrics, including metrics related to climate, board diversity, and employee management and welfare practices...

Recently, UCLA Law School Professor posed the question "Why do boards get to spend corporate money to fight off proxy contests?"  His answer is answer "because the courts say so".   In California, it is because the legislature has said so, at least in the case of nonprofit mutual benefit corporations...

Plaintiffs are inventing new theories to attack businesses for alleged ESG-related deficiencies.  Companies need to carefully manage their ESG initiatives, performance, and representations...

Last week, Liz Dunshee at TheCorporateCounsel.net noted that ISS has updated its policies and procedures to explain how it assesses racial and ethnic diversity. Currently, ISS considers board diversity in making voting recommendations for two of its specialty policies: Socially Responsible Investing (SRI) and Catholic Faith-Based. Beginning in 2021, ISS, under its U.S...

The Securities and Exchange Commission (SEC or the Commission) has announced a series of initiatives reorienting the Commission’s agenda to focus on environmental, social, and governance (ESG) issues. In particular, the Commission is gearing up to develop a framework to address ESG disclosures, including climate change risk and diversity and inclusion metrics...

As investor demand for socially responsible investing continues to rise, the U.S. Securities and Exchange Commission (SEC) has increased its focus on compliance practices of investment advisors and funds...

In a recent post on the Nickel Report (“Environmental, Social and Corporate Governance: What are the Risks, Really?”), our colleagues provide a thoughtful discussion of various risks, trending issues, and emerging concerns arising from environmental, social, and corporate governance (“ESG”)...

Environmental, social and corporate governance (ESG) – like climate change and environmental justice – has been a hot topic of discussion in the early days of the Biden administration...

On December 1, 2020, Nasdaq filed a proposed rule with the U.S. Securities and Exchange Commission (SEC) that would require certain Nasdaq-listed companies to have at least two diverse directors (according to self-reported gender, race, and sexual orientation) or explain why the company has not been able to meet the proposed minimum diversity standards, and disclose certain board diversity-related statistics. While many have lauded Nasdaq’s proposed rule to promote board diversity, there have been vocal critics of the proposed rule... Notably, in a ...

Directors’ reporting and the statutory audit have taken a battering in light of recent corporate catastrophes such as Thomas Cook Group plc, Carillion plc and BHS...

\Over the past few years, California has enacted legislation that requires public companies in California to meet certain diversity metrics with respect to their boards of directors...

Earlier this month, the SEC announced the creation of a new task force to assess the disclosure of Environmental, Sustainability, and Governance, or “ESG,” information...

Last week, the U.S. Securities and Exchange Commission (SEC) announced the creation of a new 22-person Climate and Environmental, Social, and Governance (ESG) Task Force in its Division of Enforcement, a notable development in a series of recent steps taken by the Biden administration focused on increasing ESG accountability...

As the Biden Administration settles in and begins to appoint its designees to key executive and administrative agencies, a series of policy objectives are coming into focus. Chief among them is expanded attention and regulation in the ESG space regarding environmental, social and governance issues at American businesses...

In In re WeWork Litigation, C.A. No. 2020-0258-AGB (Del. Ch. Aug. 21, 2020), a special committee of the board of directors of The We Company (the “Company”) sought to obtain certain privileged communication among management of the Company and its counsel in discovery arising from breach of contract and breach of fiduciary duty case...

In Rudd v. Brown, et al, C.A. No. 2019-0775 MTZ (Del. Ch. Sept. 11, 2020), the Delaware Court of Chancery (the “Court”) dismissed the plaintiff’s claim that the board members and the chief financial officer of Outerwall, Inc. (the “Company”) disloyally pursued and disclosed a two-step merger...

The FY 2020 report of the SEC Office of the Whistleblower reveals that the SEC whistleblower program is firing on all cylinders. Enforcement actions from whistleblower tips have resulted in orders for more than $2.7 billion in monetary sanctions, including more than $1.5 billion in disgorgement of which almost $850 million has been, or is scheduled to be, returned to harmed investors...

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