Corporate Governance Quick Bites

Corporate Governance Quick BitesHolly Gregory’s post Applying Securities Laws to Social Media Communications is the best I’ve seen on when the SEC’s Enforcement Division is likely to recommend an enforcement case to the Commission based on the potential for liability arising from disclosures by corporate officers through social media.

As widely reported, including by WSJ, Netflix and CEO Reed Hastings both received Wells Notices from the SEC, related to something Hastings wrote on Facebook back in June 2012. (Netflix Gets Wells Notice Over CEO Hastings’ Facebook Post, 12/6/2012)

To date, the SEC has issued no guidance on whether social media channels can satisfy the disclosure requirements of Reg FD, although its Staff has suggested that companies look to a 2008 SEC interpretive release when considering the FD issues raised by social media. I expect many will find Gregory’s interpretive guidance very helpful. I know I did.

GMIRatings posted Event Alerts for Responsible Investors, which discusses 29 companies whose ESG and accounting risk profiles have been affected by recent events, including a substantial increase in the CEO compensation at Netflix. Anyone concerned with how corporate practices can impact the value of companies in their portfolio should get on the GMI mailing list.

I’m frequently on the other side of Martin Lipton when it comes to poison pills and other defenses, which I believe can lead to entrenched oligarchic boards. However, it is always good to keep up with his thinking and to find threads of agreement. His post, Short-Termism Leads List of 2013 Board Concerns (NACD), is well worth reading.

Corporate Social Irresponsibility: A Challenging Concept (Critical Studies on Corporate Responsibility, Governance and Sustainability) edited by Ralph Tench, William Sun and Brian Jones was released in December.

For decades corporate social responsibility has been a heated topic in media reports, public forums, academic debates, governmental policies and business practices. But the overall effects of CSR are poor or failed in practice. Many people have noted that the conceptualization of CSR is problematic, as the concept is undefinable, confusing, non-operational and ineffective. Addressing the conceptual and operational limitations of CSR, this volume proposes that the concept of Corporate Social Irresponsibility (CSI) offers a better theoretical platform to avoid the vagueness, ambiguity, arbitrariness and mysticism of CSR. CSI deserves to be a serious subject of inquiry and demands more scholarly attention. Systematic research on CSI is much needed and urgent, given the recent financial and ecological crises.

With contributions by leading scholars in the UK, USA, Canada, Australia, Norway and Nigeria, this volume sets up an initial theoretical framework for the subject of CSI rooted in theory and practice seeking to understand how the boundaries of CSR and CSI have been constructed in society. This is the 4th volume in the series Critical Studies on Corporate Responsibility, Governance and Sustainability (CSCRGS). I participate as a member of the Editorial Advisory and Review Board for the series.

 recent post, Corporate Governance Roundup, takes readers on a world tour,

From the recently published corporate governance “Action Plan” in the EU and arguments for a hybrid system to improve corporate governance in Japan to the search for a way to align executive pay and shareowners’ interests in the U.S., it’s time to span the corporate governance globe to review important developments from the month of December.

Like the Quick Bites post you are reading now, Matt packs a lot in a few paragraphs.

The SEC declined to grant no-action relief to allow Disney to exclude a proxy access proposal submitted by Legal and General Assurance (Pensions Management), in conjunction with its client, Hermes Equity Ownership. It was a garden variety proposal with thresholds of 3% held for 3 years for up to 20% of director positions.

Disney sought to exclude the proposal under Rule 14a-8(i)(3), arguing the proposal’s requirement that nominating parties provide Disney with information required by the SEC about the nominating party and board nominee was vague and misleading. Disney also argued the proposal was subject to multiple interpretations and its references to “any federal regulations” was vague and misleading. See the December 13, 2012 letter & file.

As reported by theRacetotheBottom,

Rule 10b5-1 trading plans have come under fire recently after the Wall Street Journal published an article noting how much “good luck” corporate insiders have had in terms of generating profits by trading under these plans. Now, the Council of Institutional Investors has sent a letter to the SEC recommending the following changes to the rule (HT: Financial Fraud Law Blog):

  • Companies and company insiders should only be permitted to adopt Rule 10b5-1 trading plans when they are permitted to buy or sell securities during company-adopted trading windows, which typically open after the announcement of the financial results from a recently completed fiscal quarter and close prior to the close of the next fiscal quarter;
  • Companies and company insiders should be prohibited from adopting multiple, overlapping Rule 10b5-1 plans;
  • Rule 10b5-1 plans should be subject to a mandatory delay, preferably of three months or more, between the adoption of a Rule 10b5-1 plan and the execution of the first trade pursuant to such a plan; and
  • Companies and company insiders should not be allowed to make frequent modifications or cancellations of Rule 10b5-1 plans.

I’ve added a couple more entries to our page of corporate governance definitions. Jackie Cook has settled in India and is now updating our page of upcoming AGM dates.

To contact James McRitchie directly, please email jm@corpgov.net

Thank you for reading this investor activism blog. Please contact Info@TheShareholderActivist.com to request advice and recommendations on services and solutions to support corporate social responsibility and your shareholder activism. We also encourage you to submit your comments so that we can share your experiences with our growing community of shareholder activists.
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