The Advisors' Blog

– Broc Romanek

Yesterday, ISS Corporate Solutions issued this primer that provides the basics of ISS Research’s Equity Plan Scorecard methodology that will affect meetings occurring on – or after – February 1st (see Appendix D for the ISS 2017 burn rates).

– Broc Romanek

On Monday, the SEC announced that Neustar had settled whistleblower charges for routinely entering into severance agreements that contained a broad non-disparagement clause forbidding former employees from engaging with the SEC and other regulators “in any communication that disparages, denigrates, maligns or impugns” the company. Former employees could be compelled to forfeit all but $100 of their severance pay for breaching the clause. And yesterday, the SEC settled with SandRidge Energy over separation agreements & retaliation. This WSJ article says more of these cases to come…

Just one more enforcement case as the SEC continues to hammer home the need to modify agreements that contain anti-retaliation leanings. Tune in next year to this TheCorporateCounsel.net webcast – “Whistleblowers: What Companies Should Be Doing Now“…

– Broc Romanek

Recently, ISS updated the FAQs for Equity Plan Compensation, Executive Compensation Policies and Peer Groups – along with an updated pay-for-performance white paper to reflect the new financial performance alignment test. Here’s Ed Hauder’s blog about the equity plan FAQs entitled “Maximum Tax Withholding and Liberal Share Counting – A Deadly Combination” – and this Davis Polk blog…

I haven’t hashed out all the FAQs. But for the peer group ones, the changes are fairly minor & often ministerial, as reflected in this blackline of those FAQs…

– Broc Romanek

As noted in this Cooley memo, California Governor Jerry Brown recently signed legislation into law that prohibits employers from requiring employees who primarily reside & work in California to agree to contract provisions that require them to adjudicate claims arising in California outside of the state. In addition, employees who primarily reside & work in California cannot be forced to sign agreements that deprive them of the substantive protections of California law…

– Broc Romanek

For the first time in several years, ISS has updated its FAQs about peer groups. The changes are fairly minor & often ministerial, as reflected in this blackline of the FAQs…

– Broc Romanek

I swore I already blogged about this – but maybe I just meant to. Anyway, this blog by Davis Polk’s Ning Chiu gave me the reminder about the news from this NY Times article:

The pay ratio rule has already produced unforeseen consequences. Quoting economist Thomas Piketty and citing numerous statistics on income inequality and CEO compensation, the city of Portland, Oregon, recently passed an ordinance authorizing a surtax to the city’s business license tax for public companies doing business in Portland based on their pay ratio disclosure.

In addition to the current 2.2% business license tax, a surtax of 10% of base tax liability will be imposed once the disclosure is effective if a company reports a pay ratio of at least 100:1 but less than 250:1. Companies with pay ratios exceeding 250:1 will face a surtax of 25%.

There are currently at least 545 publicly traded companies subject to this tax in Portland, with collective revenue of $17.9 million. The new surtax is projected to bring in annual tax revenue of between $2.5 to $3.5 million, and will be used to partly fund a city office devoted to homeless services.

In 2014, the California State Senate considered, but did not pass, a bill which would have enacted a new higher tax rate on all public companies, but reduce the rate for companies where the CEO’s pay was less than 100 times that of the median worker.

In the same year, the Rhode Island State Senate passed a bill that would have given preference in state contracts to companies with small differences between CEO and worker pay, but it was defeated in the House. Massachusetts has also shown interest in enacting similar measures, so this may only be the beginning.

Also see this Fortune article entitled “Why Portland’s Drastic Move to Limit CEO Pay Will Make ‘Virtually No Impact’…

– Broc Romanek

This 17-page memo from Davis Polk gives the rundown on possible predictions on how it might all play out for the executive pay provisions in Dodd-Frank & much more…

Apparently, as noted in this Reuters article, SEC Chair White is trying to push through some “midnight rulemaking” – contrary to what I blogged last month. However, there isn’t any indication whether that includes the Dodd-Frank executive pay rulemakings that remain proposed but not adopted…

– Broc Romanek

Here’s an excerpt from this WSJ article:

A newly published study of shareholder letters and executive compensation finds that CEOs who name shareholder value as their primary objective in investor letters received larger increases in their annual pay packages than chiefs who cited other priorities, such as improving customer loyalty or increasing market share. The study, recently published in the Journal of Management Studies, examined 2,373 letters to shareholders from 590 CEOs of S&P 500 companies between 1998 and 2005. Authors Taekjin Shin of San Diego State University and Jihae You of Louisiana State University determined that corporate leaders who explicitly communicated their interest in maximizing shareholder value received higher annual compensation increases. The pay packages included salaries, bonuses, the value of stock-option grants, restricted stock grants and long-term incentive plans.

After controlling for company size, stock performance, the chief executive’s tenure and other factors, CEOs could count on an additional $116,000 for every mention per 1,000 words of boosting the company’s share value. The explanation isn’t simply that CEOs are ingratiating themselves to corporate boards and compensation committees, Mr. Shin said. Instead, the leaders are using language that signals the appearance of competence and control.

– Broc Romanek

Here’s the intro from this Cooley blog:

A new academic study, “Rank and File Employees and the Discovery of Misreporting: The Role of Stock Options,” finds that companies that flout financial reporting rules tend to grant more stock options than their peers that adhere to those rules. Moreover, the study found that violators that granted more options to rank-and-file employees during periods when violations were ongoing were more likely to avoid whistleblowing allegations. Although it may sound cynical, the authors of the study posit the theory, as reported in this article in the WSJ, that violators may be using option grants in “an attempt to discourage whistleblowing.”

– Broc Romanek

Here’s the intro from this Glass Lewis blog:

France’s legislative bodies have been debating the introduction of stricter say-on-pay rules for a the past few months (see blog post), but last Tuesday the final text of the amendment emerged (Amendment 161); its final passage into law awaits only the French President’s signature, which is expected within two weeks. Embedded in an omnibus transparency and economic modernisation bill (known colloquially as “Sapin 2”), this amendment institutes two separate binding votes on remuneration; a forward looking vote on policy, and a backward looking vote on variable and exceptional pay amounts. In terms of timing, the former vote will come into force in 2017, while the latter won’t grace the AGM ballot card until 2018.

More specifically, blog include a forward looking, annual, binding shareholder vote on the “principles and criteria of determination, distribution and allocation of fixed, variable and exceptional components of total compensation and benefits any kind”, attributable to the chair, CEO, and Deputy CEO in a single board structure, or to the members of the executive board, the sole managing director, and the members of the supervisory board in a dual board structure.

In case of failure of this forward looking vote, the previous principles and criteria will continue to apply or, if there was no previous policy, remuneration will be determined “in accordance with the previous year’s remuneration”.

In 2018, the second binding vote will come into force; for any payment to occur, shareholders will be required to approve the payment of variable and exceptional pay amounts to the chair of the board of directors or the supervisory board, the CEO, deputy CEO, the members of the management board or a sole managing director. The amendment does not specify what recourse issuers may have in case of a failure of this second binding vote.