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Current Issues

Corporate Governance Best Practices and Trends
For many years Fenwick has collected information on the corporate governance practices of publicly traded companies in order to counsel our clients on best practices and industry norms in corporate governance. Having collected this data since 2003, we decided this was a unique body of information that would be useful for all Silicon Valley companies as well as publicly-traded technology and life science companies across the U.S., so we decided to make this information publicly available.

Fenwick's annual survey covers a variety of corporate governance practices and data for the companies included in the Standard & Poor's 100 Index (S&P 100) and the high technology and life science companies included in the Silicon Valley 150 Index (SV 150). In this report, we present statistical information for a subset of the data we have collected over the years. These include:

  • number of insider directors
  • size and number of meetings for boards and their primary committees
  • frequency of maintaining other standing committees
  • majority voting
  • board classification
  • use of a dual‑class voting structure
  • frequency and number of shareholder proposals

In each case, comparative data is presented for the S&P 100 companies and for the high technology and life science companies included in the SV 150 as well as trend information over the history of the survey.

FAQs re Dodd-Frank Whistleblower Rules
The 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") added Section 21F to the Exchange Act, entitled "Securities Whistleblower Incentives and Protection." This new section requires the SEC to pay awards to whistleblowers who provide the SEC with original information about a violation of the federal securities laws that leads to successful enforcement action and monetary sanctions in excess of $1 million. On May 25, 2011 the SEC adopted final rules to implement this Dodd-Frank mandate ("Whistleblower Rules"). The Whistleblower Rules define the conditions that must be met for whistleblowers to be eligible for an award. They include provisions to protect whistleblowers from retaliation, and encourage (but do not require) whistleblowers to utilize a company's internal reporting system. The full text of the adopting release for the Whistleblower Rules is available at http://www.sec.gov/rules/final/2011/34-64545.pdf

To read the FAQ, click here.

IRS Issues Proposed Regulations Under Section 162(m) to Clarify Performance-Based Exception
Section 162(m) of the Internal Revenue Code, denies a tax deduction to a public company if compensation paid to certain individuals (known as "covered employees") exceeds one million dollars for the taxable year. A "covered employee" is defined as a public company's chief executive officer and its three other most highly compensated officers (excluding the CFO) whose compensation is required by the SEC to be disclosed for a given year. However, the deduction limit is subject to certain exemptions, including compensation that is "performance-based" within the meaning of Section 162(m), and certain equity awards granted under an equity incentive plan that existed prior to a company becoming public.

SEC Proposes New Rules for Compensation Committees and Compensation Consultants
The SEC has proposed rules to implement Dodd-Frank Act Section 952, requiring national securities exchanges to prohibit the initial or continued listing of any stock of a company that does not satisfy Compensation Committee independence criteria and compensation adviser independence criteria.

Supreme Court Unanimously Affirms "Total Mix" Standard of Materiality
The Supreme Court unanimously affirmed the Basic Inc. v. Levinson principle that the materiality test is satisfied based on a "total mix" of information available to investors and not any particular bright line, such as statistical significance of adverse event reports. Read Justice Sotomayor’s Opinion here.

Most Recent Say on Pay Bulletin

Securities Litigation Update - FCPA Update: Implementation of U.K. Bribery Bill Postponed Until April 2011

Corporate and Securities Alert: The Dodd-Frank Act: Provisions Affecting Corporate Governance And Executive Compensation Disclosures For All Public Companies

NVCA Venture Backed Exits Q4 and Full Year 2010

Click here for previous securities law alerts and publications


Fenwick & West Presentations

"Say on Pay" and Other Dodd-Frank Requirements

Compensation Committee Best Practices

Challenges Facing Non-WKSI Public Companies

Financing Alternatives for Mid-Size or Smaller Public Companies

Smaller Reporting Companies

U.S. Securities Law


Securities Law Resources

SEC Calendar for Select Corporate Governance
and Disclosure Rule-Making

Form 8-K Reference Chart

Securities Lawyers Deskbook

ISS Governance Policy

Fidelity Corporate Governance and Proxy Guidelines

TheCorporateCounsel.net and GreatGovernance.com[subscription required]

DealLawyers.com[login required]

WSJ Law Blog

DE Corporations Code

CA Corporations Code

WA Corporations Code


Regulatory Agencies

Securities and Exchange Commission

NYSE Corporate Governance Guide

NASDAQ Corporate Governance Rules

OTC– World's largest electronic interdealer quotation system for unlisted securities

Financial Institution Regulatory Authority- The largest independent regulator for all securities firms doing business in the United States

Financial Accounting Standards Board (FASB)- The designated private sector organization in the U.S. that establishes financial accounting and reporting standards


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