Elizabeth A. Ising

Partner, Washington, D.C.

+1 202.955.8287

Elizabeth Ising is a partner in Gibson Dunn’s Washington, D.C. office and Co-Chair of the firm’s Securities Regulation and Corporate Governance practice. She also is a member of the firm’s Hostile M&A and Shareholder Activism team and Financial Institutions practice group. She advises clients, including public companies and their boards of directors, on corporate governance, securities law and, ESG and sustainability matters and executive compensation best practices and disclosures. Representative matters include advising on Securities and Exchange Commission reporting requirements, proxy disclosures, SASB and TCFD disclosures, director independence matters, proxy advisory services, board and committee charters and governance guidelines and disclosure controls and procedures. Ms. Ising also regularly counsels public companies on shareholder activism issues, including on shareholder proposals and preparing for and responding to hedge fund and corporate governance activism. She also advises non-profit organizations on corporate governance issues.

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Updated Summary of Director Education Opportunities Now Available

April 15, 2025 | Posted by Hillary H. Holmes; Lori Zyskowski; Ronald O. Mueller; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance; ESG; IPOs; Securities Regulation; Shareholder Proposals

Gibson Dunn’s summary of director education opportunities has been updated as of April 2025. A copy is available at this link. Boards of Directors of public and private companies find this a useful resource as they look for high quality education opportunities.

This quarter’s update to the summary of director education opportunities includes a number of new opportunities as well as updates to the programs offered by organizations that have been included in our prior updates. Some of the new opportunities are available for both public and private companies’ boards.

Thank you to associates Jason Ferrari and To Nhu Huynh from our Houston office for their assistance with this quarter’s update.

Proxy Reporting of 5% Shareholders’ Beneficial Ownership Based on 13G Filings

February 21, 2025 | Posted by Elizabeth A. Ising; Lori Zyskowski; Ronald O. Mueller; Stella Kwak Topic(s): Disclosure; Proxy Statements and Annual Meetings; Securities Regulation

Among the many new rules and considerations affecting proxy season disclosures this year, one of the more subtle changes affects beneficial ownership disclosure pursuant to S-K Item 403(a). That rule requires companies to report the beneficial ownership of their greater than 5% shareholders “as of the most recent practicable date,” with beneficial ownership being determined in accordance with Exchange Act Rule 13d-3. In years past, all Schedule 13G filers were required to file amendments within 45 days after the end of the calendar year to report any change to their previously reported holdings.

SEC Staff Reinstates Traditional Approach to Interpreting the Shareholder Proposal Rule; New Guidance Rescinds SLB 14L

February 13, 2025 | Posted by Elizabeth A. Ising; Thomas J. Kim; Ronald O. Mueller; Lori Zyskowski Topic(s): Corporate Governance; Environmental/Climate Change; ESG; Proxy Statements and Annual Meetings; Shareholder Proposals

To Our Clients and Friends:

On February 12, 2025, the Division of Corporation Finance (the “Staff”) of the U.S. Securities and Exchange Commission (the “Commission”) published Staff Legal Bulletin No. 14M (“SLB 14M”), which sets forth Staff guidance on shareholder proposals submitted to publicly traded companies under Exchange Act Rule 14a-8. SLB 14M rescinds Staff Legal Bulletin No. 14L (“SLB 14L”) (which was issued in November 2021) and addresses a number of interpretive issues in a manner that draws heavily from prior statements by the Commission interpreting Rule 14a-8.

Updated Summary of Director Education Opportunities Now Available

January 14, 2025 | Posted by Hillary H. Holmes; Lori Zyskowski; Ronald O. Mueller; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance; ESG; IPOs; Securities Regulation; Shareholder Proposals

Gibson Dunn’s summary of director education opportunities has been updated as of January 2025. A copy is available at this link. Boards of Directors of public and private companies find this a useful resource as they look for high quality education opportunities.

California Solicits Input On—and Issues Enforcement Update For—Future Climate Reporting

December 18, 2024 | Posted by Elizabeth A. Ising; Cynthia M. Mabry; Aaron K. Briggs Topic(s): Disclosure; Environmental/Climate Change; ESG

Request for Comments. On December 16, 2024, the California Air Resources Board (“CARB”) issued a request for public feedback and information regarding certain implementing regulations for Senate Bill (“SB”) 253 (the Climate Corporate Data Accountability Act) and SB 261 (the Climate-Related Financial Risk Act). As a reminder, SB 253 requires U.S. companies doing business in California with annual revenues over $1 billion to begin reporting Scope 1 and 2 greenhouse gas (“GHG”) emissions in 2026 and Scope 3 GHG emissions in 2027. SB 261 requires U.S. companies doing business in California with annual revenues over $500 million to biennially report on climate-related risks and their steps to mitigate such risks, with the first report due on or before January 1, 2026. Both SB 253 and SB 261 make CARB responsible for the laws’ enforcement and for adopting certain implementing regulations.

Preparing for California’s Climate Reporting Legislation – Takeaways from Recent Amendments and Early AB 1305 Reporting Trends

October 25, 2024 | Posted by Elizabeth A. Ising; Aaron K. Briggs; Cynthia M. Mabry; Michael K. Murphy Topic(s): Corporate Governance; Disclosure; Environmental/Climate Change; ESG

Last year, California adopted a trio of laws requiring certain public and private companies to provide climate-related disclosures. As a quick refresher:

Climate Corporate Data Accountability Act (Senate Bill 253). For U.S. companies doing business in California with annual revenues over $1 billion, Senate Bill (“SB”) 253 requires them to report their greenhouse gas (“GHG”) emissions annually beginning in 2026 (for Scope 1 and 2 GHG emissions) and 2027 (for Scope 3 emissions).
Greenhouse Gases: Climate-related Financial Risk (Senate Bill 261). For U.S. companies doing business in California with annual revenues over $500 million, SB 261 effectively requires them to begin biennial reporting in 2025 regarding their “climate-related financial risks” and adopted measures to reduce or adapt to them.
Voluntary Carbon Market Disclosures (Assembly Bill 1305). For companies that make certain environmental claims, adopt particular environmental goals, or purchase, use, market, or sell voluntary carbon offsets in California, Assembly Bill (“AB”) 1305 requires annual website disclosure providing support for those claims, goals, or offsets.

Updated Summary of Director Education Opportunities Now Available

October 17, 2024 | Posted by Hillary H. Holmes; Julia Lapitskaya; Lori Zyskowski; Ronald O. Mueller; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance; ESG; IPOs; Securities Regulation; Shareholder Proposals

Gibson Dunn’s summary of director education opportunities has been updated as of October 2024. A copy is available at this link. Boards of Directors of public and private companies find this a useful resource as they look for high quality education opportunities.

Key U.S. Executive Compensation Takeaways from the ISS 2024 U.S. Proxy Season Review

September 20, 2024 | Posted by Ekaterina (Kate) Napalkova; Krista P. Hanvey; Elizabeth A. Ising; Ronald O. Mueller; Lori Zyskowski Topic(s): Compensation Committee; Corporate Governance; Executive Compensation; Proxy Statements and Annual Meetings

On September 5, 2024, Institutional Shareholder Services (ISS) released its 2024 Proxy Season Review: United States – Executive Compensation. The below chart summarizes our observations of the 2024 data and key takeaways as we look to the 2025 proxy season. While these trends are positive for issuers overall, they underscore that issuers, their boards, compensation committees, and management should continue to take an active role in compensation programs, disclosure, and shareholder engagement practices.

Preparing for CDP’s New Sustainability Reporting Platform

June 25, 2024 | Posted by Elizabeth A. Ising; Cynthia M. Mabry Topic(s): Corporate Governance; Disclosure; Environmental/Climate Change; ESG; Securities Regulation

Earlier this month, CDP (formerly known as the Carbon Disclosure Project) announced the launch of a new environmental disclosure platform. CDP is a non-profit that scores and assesses participating companies and cities, states, and regions on climate, deforestation, and water security topics. According to CDP, over 23,000 companies (representing two-thirds of global market capitalization) disclosed through CDP in 2023.

Updated Summary of Director Education Opportunities Now Available

June 20, 2024 | Posted by Hillary H. Holmes; Julia Lapitskaya; Lori Zyskowski; Ronald O. Mueller; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance; ESG; IPOs; Securities Regulation; Shareholder Proposals

Gibson Dunn’s summary of director education opportunities has been updated as of June 2024. A copy is available at this link. Boards of Directors of public and private companies find this a useful resource as they look for high quality education opportunities.

Eighth Circuit Establishes Briefing Schedule for SEC Climate Disclosure Rules Litigation

May 24, 2024 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Corporate Governance; Disclosure; Environmental/Climate Change; ESG; Securities Regulation

On May 20, 2024, the U.S. Court of Appeals for the Eighth Circuit issued an order establishing the briefing schedule for the consolidated litigation challenging the Securities and Exchange Commission’s (“SEC") final climate disclosure rules.

SEC Division of Corporation Finance Director Erik Gerding Offers Guidance on Form 8-K Disclosure of Cybersecurity Incidents

May 22, 2024 | Posted by Ronald O. Mueller; Thomas J. Kim; Lori Zyskowski; Julia Lapitskaya; James J. Moloney; Elizabeth A. Ising; Brian J. Lane Topic(s): Corporate Governance; Securities Regulation

As detailed in our client alert, the SEC adopted cybersecurity disclosure rules on July 26, 2023 that require disclosure of material cybersecurity incidents under new Item 1.05 of Form 8-K. If a company determines that a cybersecurity incident is material, it is required to disclose the incident within four (4) business days of such determination. In addition, such determination is required to be made “without unreasonable delay after discovery of the incident.”

Updated Summary of Director Education Opportunities Available

April 9, 2024 | Posted by Hillary H. Holmes; Lori Zyskowski; Elizabeth A. Ising; Ronald O. Mueller Topic(s): Audit Committee; Compensation Committee; Corporate Governance; ESG; IPOs

Gibson Dunn’s summary of director education opportunities has been updated as of April 2024. A copy is available at this link.

Boards of Directors of public and pre-IPO companies find this a useful resource as they look for high quality education opportunities.

Fifth Circuit Stay of the SEC’s Climate Disclosure Rule Dissolved

March 22, 2024 | Posted by Ronald O. Mueller; James J. Moloney; Elizabeth A. Ising; Lori Zyskowski Topic(s): Corporate Governance; Disclosure; ESG; Securities Regulation

On March 21, 2024, the Judicial Panel on Multidistrict Litigation randomly selected the U.S. Court of Appeals for the Eighth Circuit to hear all cases challenging the Securities and Exchange Commission’s final climate disclosure rule. Within the first ten days after the rule’s issuance, nine petitions were filed, in six different circuits, challenging the rule.

Summary of Director Education Opportunities – Updated

January 5, 2024 | Posted by Hillary H. Holmes; Lori Zyskowski; Elizabeth A. Ising; Ronald O. Mueller Topic(s): Audit Committee; Corporate Governance; IPOs; Shareholder Proposals

Gibson Dunn’s summary of director education opportunities has been updated as of January 2024. A copy is available at this link - Board-Education-Opportunities-January-2024.pdf

Updated Summary of Director Education Opportunities Available

October 11, 2023 | Posted by Hillary H. Holmes; Lori Zyskowski; Elizabeth A. Ising; Ronald O. Mueller Topic(s): Audit Committee; Compensation Committee; Corporate Governance; ESG; IPOs

Gibson Dunn’s summary of director education opportunities has been updated as of October 2023. A copy is available at this link. Boards of Directors of public and private companies find this a useful resource as they look for high quality education opportunities.

UPDATE: California Governor Signs Climate Legislation Into Law, But Signals Changes To Come

October 11, 2023 | Posted by Andrew L. Fabens; Elizabeth A. Ising; Cynthia M. Mabry Topic(s): Corporate Governance; Disclosure; Environmental/Climate Change; ESG

On October 7, 2023, California Governor Gavin Newsom signed into law Senate Bill 253, the Climate Corporate Data Accountability Act (“SB 253") and Senate Bill 261, Greenhouse Gases: Climate-Related Financial Risk (“SB 261"). The legislation imposes extensive new climate-related reporting requirements on any public or private U.S. business entity with annual revenues over $1 billion and $500 million (for SB 253 and SB 261, respectively) doing business in the state. A detailed discussion of each bill is available in our recent client alert.

Summary of Public Company Cybersecurity Disclosure Rules

July 29, 2023 | Posted by Ronald O. Mueller; Elizabeth A. Ising; Julia Lapitskaya; Lori Zyskowski Topic(s): Audit Committee; Corporate Governance; Disclosure; Securities Regulation

On July 26, 2023, the Securities and Exchange Commission (“SEC” or “Commission”), in a 3-to-2 vote, adopted a final rule requiring the disclosure of material cybersecurity incidents and cybersecurity risk management, strategy, and governance by public companies, including foreign private issuers. A two-page summary of the final rule is attached for your reference.

Form 10-Q Updates and Reminders

July 17, 2023 | Posted by Michael A. Titera; Ronald O. Mueller; Thomas J. Kim; Lori Zyskowski; Elizabeth A. Ising; James J. Moloney; Julia Lapitskaya; Aaron K. Briggs Topic(s): Corporate Governance; Disclosure; Securities Regulation

As many companies prepare their quarterly reports on Form 10-Q for the quarter ended June 30, 2023, we offer the following observations and reminders regarding new disclosure requirements taking effect for this reporting period, as well as risk factor considerations that may be relevant to upcoming Form 10-Q reporting. For convenience, this publication also includes a summary of certain upcoming compliance dates for public companies.

Updated Summary of Director Education Opportunities Now Available

July 10, 2023 | Posted by Hillary H. Holmes; Lori Zyskowski; Ronald O. Mueller; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance; ESG; IPOs; Securities Regulation; Shareholder Proposals

Gibson Dunn’s summary of director education opportunities has been updated as of July 2023. A copy is available at this link. Boards of Directors of public and private companies find this a useful resource as they look for high quality education opportunities.

Updated Summary of Director Education Opportunities Available

April 11, 2023 | Posted by Hillary H. Holmes; Lori Zyskowski; Ronald O. Mueller; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance; ESG; IPOs

Gibson Dunn’s summary of director education opportunities has been updated as of April 2023. A copy is available at this link. Boards of Directors of public companies find this a useful resource as they look for high quality education opportunities.

Updated Summary of Select Director Education Opportunities Available

October 19, 2022 | Posted by Lori Zyskowski; Elizabeth A. Ising; Hillary H. Holmes Topic(s): Audit Committee; Corporate Governance

Gibson Dunn’s summary of director education opportunities has been updated as of October 2022 and is available
at this link. Boards of Directors of public companies find this a useful resource as they look for high quality education opportunities.

Updated Summary of Select Director Education Opportunities Available

June 29, 2022 | Posted by Hillary H. Holmes; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance

Gibson Dunn’s summary of director education opportunities has been updated as of July 2022 and is available at the link below. Boards of Directors of public companies find this a useful resource as they look for high quality education opportunities.

Updated Summary of Select Director Education Opportunities Available

February 22, 2022 | Posted by Hillary H. Holmes; Elizabeth A. Ising Topic(s): Audit Committee; Corporate Governance

Gibson Dunn’s summary of director education opportunities has been updated as of February 2022 and is available at the link below. Boards of Directors of public companies find this a useful resource as they look for high quality education opportunities.

Now Available: Considerations for Preparing Your 2021 Form 10-K

January 21, 2022 | Posted by Andrew L. Fabens; Brian J. Lane; Elizabeth A. Ising; Hillary H. Holmes; James J. Moloney; Michael A. Titera; Thomas J. Kim; Ronald O. Mueller Topic(s): Capital Markets; Corporate Governance; Disclosure; Environmental/Climate Change; ESG; Financial Statements; Human Capital Management; Proxy Statements and Annual Meetings; Securities Regulation

As we do each year, we offer our observations on new developments and recommended practices for calendar-year filers to consider in preparing their Form 10-K. This alert reviews the recent amendments to Regulation S-K adopted by the U.S. Securities and Exchange Commission (“SEC”) and discusses how public companies are reacting to these new requirements.

SEC Proposes Rules on Insider Trading, Rule 10b5-1 and Share Repurchases

December 23, 2021 | Posted by Ronald O. Mueller; Andrew L. Fabens; James J. Moloney; Lori Zyskowski; Thomas J. Kim; Brian J. Lane; Elizabeth A. Ising Topic(s): Capital Markets; Corporate Governance; Disclosure; Proxy Statements and Annual Meetings; Securities Regulation

On December 15, 2021, the Securities and Exchange Commission (“SEC” or “Commission”) held a virtual open meeting where it considered four rule proposals, including two that are particularly pertinent to all public companies: (i) amendments regarding Rule 10b5-1 insider trading plans and related disclosures and (ii) new share repurchase disclosures rules.

ISS Proposes and Opens Comment on Draft 2022 Voting Policy Updates

November 9, 2021 | Posted by Ronald O. Mueller; Elizabeth A. Ising; Lori Zyskowski Topic(s): Corporate Governance; ESG; Proxy Statements and Annual Meetings

Yesterday, the proxy advisory firm Institutional Shareholder Services (“ISS”) proposed and published for comment voting policy changes for the 2022 proxy season. There are five proposed updates that would apply to U.S. companies, including two related to “Say on Climate” proposals and a third related to climate issues.

SEC Staff Scrutiny of Climate Change Disclosures Has Arrived: What to Expect And How to Respond

September 19, 2021 | Posted by Andrew L. Fabens; Brian J. Lane; Elizabeth A. Ising; James J. Moloney; Lori Zyskowski; Michael A. Titera; Thomas J. Kim; Ronald O. Mueller Topic(s): Disclosure; Environmental/Climate Change; ESG; Securities Regulation

Recently, the SEC’s Division of Corporation Finance has issued a number of comment letters relating exclusively to climate-change disclosure issues. The letters we have seen to date comment on companies’ most recent Form 10-K filings, including those of calendar year companies who filed their Form 10-K more than 6 months ago, and have been issued by a variety of the Division’s industry review groups, including to companies that are not in particularly carbon-intensive industries. Many of the climate change comments appear to be drawn from the topics and considerations raised in the SEC’s 2010 guidance on climate change disclosure, as reflected in the sample comments that we have attached in the annex to this alert. We expect this is part of a larger Division initiative because the letters are similar (although not identical), contain relatively generic comments, and have been issued in close proximity to one another. Accordingly, it is reasonable to expect that additional comment letters will be issued in the coming weeks and months.

What Can We Expect from the SEC with COP26 Around the Corner?

August 23, 2021 | Posted by Hillary H. Holmes; Elizabeth A. Ising; Lori Zyskowski Topic(s): Audit Committee; Corporate Governance; ESG; Securities Regulation

Climate change matters and related calls for regulation are in headlines daily. On August 9, 2021, the UN’s Intergovernmental Panel on Climate Change (IPCC) published the first major international assessment of climate-change research since 2013. The IPCC report will inform negotiations at the 2021 UN Climate Change Conference, also known as COP26, beginning on October 31, 2021 in Glasgow.

New York Stock Exchange Further Amends Related Party Transaction Approval Rules

August 23, 2021 | Posted by Elizabeth A. Ising; Ronald O. Mueller; Cassandra L. Tillinghast; Lori Zyskowski Topic(s): Corporate Governance

On August 19, 2021, the New York Stock Exchange (“NYSE”) proposed an amendment to Section 314.00 of the NYSE Listed Company Manual (the “NYSE Manual”), the NYSE’s related party transaction approval rule. The proposal follows the NYSE’s recent amendments to Section 314.00, approved by the Securities and Exchange Commission (the “SEC“) on April 2, 2021, which had amended the rules to, among other things, require “reasonable prior review and oversight” of related party transactions and had defined related party transactions (for companies other than foreign private issuers) to be those subject to Item 404 of the SEC’s Regulation S-K, but “without applying the transaction threshold of that provision.” For foreign private issuers, the previous amendments had defined related party transactions to be those subject to disclosure under Form 20-F, but “without regard to the materiality threshold of that provision.” As a result of those amendments, NYSE-listed companies were faced with the prospect of potentially presenting immaterial transactions, or transactions in which related parties’ interests were immaterial, before their independent directors for approval.

SEC Chair Lays Out a Climate- and ESG-Oriented Agenda and Calls for Comments on Mandatory Climate-Related Disclosure Rules

March 16, 2021 | Posted by Elizabeth A. Ising; Hillary H. Holmes; James J. Moloney; Ronald O. Mueller; Thomas J. Kim; Lori Zyskowski; Michael Scanlon Topic(s): Corporate Governance; Disclosure; Securities Regulation

On March 15, 2021, the Acting Chair of the Securities and Exchange Commission (SEC), Allison Herren Lee, gave a speech entitled “A Climate for Change: Meeting Investor Demand for Climate and ESG Information at the SEC,”[1] in which she sets forth a near-term regulatory agenda for the SEC that centers on climate and Environmental, Social, and Governance (ESG) topics. On the same day, she also jump-started the regulatory process toward adopting potentially extensive new disclosure requirements for public companies on climate-change matters by issuing a request for comments on 15 broad issues.[2]

SEC Announces Enforcement Task Force Focused on Climate and ESG Issues

March 4, 2021 | Posted by Elizabeth A. Ising; Ronald O. Mueller; Hillary H. Holmes Topic(s): Disclosure; Securities Regulation

On March 4, 2021, the Securities and Exchange Commission (SEC) announced the creation of the “Climate and ESG Task Force” in the SEC’s Division of Enforcement.^[1] The purpose of the Task Force is to “develop initiatives to proactively identify ESG-related misconduct.” The Task Force’s initial focus will be to identify “any material gaps or misstatements in issuers’ disclosure of climate risks under existing rules.” The Task Force will also “analyze disclosure and compliance issues relating to investment advisers’ and funds’ ESG strategies.”

ISS Issues Significant Update to Governance QualityScore

February 9, 2021 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Corporate Governance

On January 29, 2021, Institutional Shareholder Services (ISS) updated the ISS ESG Governance QualityScore (“QualityScore") product to include 17 new factors and various other changes, representing what ISS calls “the largest Governance QualityScore methodology release in recent years."

Now Available: Considerations for Preparing Your 2020 Form 10-K

February 4, 2021 | Posted by Hillary H. Holmes; Elizabeth A. Ising; Thomas J. Kim; Brian J. Lane; James J. Moloney; Ronald O. Mueller; Michael Scanlon; Michael A. Titera Topic(s): Audit Committee; Capital Markets; Disclosure; Financial Statements; Proxy Statements and Annual Meetings; Registration Statements; Securities Regulation

As we do each year, we offer our observations on new developments and recommended practices for calendar-year filers to consider in preparing their annaul report on Form 10-K. In addition to the many challenges of the past year, the SEC adopted and provided guidance on a number of changes to public company reporting obligations impacting disclosures in the 10-K for 2020. In particular, we discuss the recent amendments to Regulation S-K, disclosure considerations in light of COVID-19, a number of technical considerations that may impact your Form 10-K, and other considerations in light of recent and pending changes in the executive branch and at the SEC. The full memo is available at the following link:

Summary of Select Director Education Opportunities Available

December 13, 2020 | Posted by Hillary H. Holmes; Elizabeth A. Ising Topic(s): Audit Committee; Compensation Committee; Corporate Governance

Gibson Dunn’s summary of director education opportunities has been updated as of December 2020 and is available at the links below. Boards of Directors of public companies find this a useful resource as they look for high quality education opportunities.

ISS Proposes and Opens Comment on Draft 2021 Voting Policy Updates

October 19, 2020 | Posted by Elizabeth A. Ising; Lori Zyskowski Topic(s): Corporate Governance; Miscellaneous; Proxy Statements and Annual Meetings

Last week, Institutional Shareholder Services (“ISS") proposed and published for comment voting policy changes for the 2021 proxy season. These include three proposed updates that would apply to U.S. companies.

SEC Chairman and Division of Corporation Finance Director Issue Joint Statement on COVID-19 Disclosures

April 13, 2020 | Posted by Elizabeth A. Ising; Ronald O. Mueller; Brian J. Lane; Lori Zyskowski Topic(s): Audit Committee; Securities Regulation

On April 8, 2020, Securities and Exchange Commission (“SEC”) Chairman Jay Clayton and Division of Corporation Finance Director Bill Hinman issued a joint statement, available here (the “Statement”) stressing the importance of COVID-19 disclosures (particularly forward-looking disclosures), and urging companies to provide as much information as is practicable regarding their current financial and operational status, as well as operational and financial planning. The Statement notes that the COVID-19 pandemic has shifted the global economic landscape and that the SEC recognizes that workers and businesses are facing profound challenges.

ISS Provides Policy Guidance in Light of COVID-19 Pandemic

April 9, 2020 | Posted by Elizabeth A. Ising; Lori Zyskowski; Ronald O. Mueller Topic(s): Corporate Governance; Proxy Statements and Annual Meetings

On April 8, 2020, Institutional Shareholders Services (“ISS") released guidance regarding the application of its policies amid the COVID-19 pandemic (available here). In the guidance, ISS discusses various governance issues in light of the COVID-19 pandemic and states that it will be flexible in its application of its policies, while requiring disclosure of the rationale for certain actions that companies may take. The following are four main topics covered in the guidance for companies in the United States:

Delaware Governor Issues Limited Relief for Public Company Shareholder Meetings Impacted by COVID-19

April 6, 2020 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Corporate Governance; Proxy Statements and Annual Meetings

Today the Governor of the State of Delaware issued an executive order (the “Order")[1] that provides two limited forms of relief for publicly traded companies[2] hosting shareholder meetings during the coronavirus (COVID-19) pandemic.

Reconsidering Poison Pills

March 27, 2020 | Posted by Elizabeth A. Ising Topic(s): Corporate Governance

The public health crisis caused by COVID-19 has had a dramatic economic impact on the trading prices of U.S. companies across all industries. As boards of directors and management teams work to stabilize their operations and deal with the myriad issues caused by the pandemic, we have witnessed a number of opportunistic shareholder activists accumulating stakes in publicly traded targets. In the current environment, boards and their advisors should take, and several already have taken, a fresh look at the implementation of a shareholder rights plan (aka “poison pill").

Division of Corporation Finance Unveils Further Details on Its Process for Responding to Shareholder Proposal No-Action Requests

November 24, 2019 | Posted by Ronald O. Mueller; Lori Zyskowski; Elizabeth A. Ising Topic(s): Corporate Governance; Proxy Statements and Annual Meetings; Shareholder Proposals

On November 21, 2019, the Division of Corporation Finance (the “Division" or “Staff") of the Securities and Exchange Commission (“SEC") provided additional detail on how it will process responses to shareholder proposal no-action requests under Rule 14a-8. As discussed in our prior posts, available here and here, in September 2019 the Division announced that, starting with the 2019-2020 shareholder proposal season, it may respond orally instead of in writing to some no-action requests, and in some cases its response may indicate that it is declining to state a view on whether a proposal satisfies the requirements of Rule 14a-8 or is properly excludable.

Developments Regarding Changes to SEC Staff’s Shareholder Proposal No-Action Responses

October 11, 2019 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Shareholder Proposals

Several noteworthy developments have occurred following the September 6, 2019 announcement by the Division of Corporation Finance (the “Staff") of the Securities and Exchange Commission (“SEC") regarding two significant procedural changes for responding to Exchange Act Rule 14a-8 no-action requests that will be applicable to no-action requests regarding shareholder proposals submitted for annual meeting to be held in 2020. That announcement indicated that the Staff may now respond orally instead of in writing to shareholder proposal no-action requests and that the Staff may now more frequently respond by declining to state a view on whether or not it concurs that a company may properly exclude a shareholder proposal under Rule 14a-8.

SEC Staff Announces Significant Changes to Shareholder Proposal No-Action Letter Process

September 9, 2019 | Posted by Elizabeth A. Ising; Ronald O. Mueller; Michael A. Titera; Aaron K. Briggs Topic(s): Corporate Governance; Proxy Statements and Annual Meetings; Securities Regulation

On September 6, 2019, the Division of Corporation Finance (the “Staff") of the Securities and Exchange Commission (“SEC") announced[1] two significant procedural changes for responding to Exchange Act Rule 14a-8 no-action requests that will be applicable beginning with the 2019-2020 shareholder proposal season:

SEC Issues New Guidance for Proxy Advisors and Investment Advisers Engaged in the Proxy Voting Process

August 23, 2019 | Posted by Elizabeth A. Ising; James J. Moloney; Ronald O. Mueller; Brian J. Lane; Lori Zyskowski Topic(s): Investment Act/Investment Advisors Act; Proxy Statements and Annual Meetings; Securities Regulation

On August 21, 2019, the Securities and Exchange Commission (the Commission) issued two releases (the Releases) regarding two elements of the proxy voting process that are influenced by proxy advisory firms: proxy voting advice issued by proxy advisors (available here) and proxy voting by investment advisers who use that proxy voting advice (availablehere). The guidance, in the words of Commissioner Elad L. Roisman, “reiterate[s] longstanding Commission rules and positions that remain applicable and very relevant in today’s marketplace."

Desktop Calendar of SEC Deadlines for 2020 Now Available

August 21, 2019 | Posted by Hillary H. Holmes; Andrew L. Fabens; Peter Wardle; Stewart McDowell; James J. Moloney; Elizabeth A. Ising; Lori Zyskowski Topic(s): Audit Committee; Corporate Governance; Miscellaneous; Securities Regulation

This is a smart time of year to confirm plans for SEC reporting and capital markets transactions in 2020. To assist public companies in keeping track of the various filing deadlines, we have prepared a desktop reference calendar that sets forth filing deadlines for many SEC reports. To assist companies with planning capital markets transactions, including IPOs, our calendar also provides the staleness dates (i.e., the last date financial statements may be used in a prospectus or proxy statement without being updated).

SEC August 21 Open Meeting To Address Issues Related To Proxy Advisory Firms

August 13, 2019 | Posted by Ronald O. Mueller; Elizabeth A. Ising; Lori Zyskowski; Michael A. Titera; Aaron K. Briggs Topic(s): Corporate Governance; Proxy Statements and Annual Meetings; Securities Regulation; Shareholder Proposals

The SEC announced that it will hold an open meeting on Wednesday, August 21, 2019 at 10:00 AM eastern time. There are two matters on the agenda, available here, which, although not specifically referring to proxy advisory firms, appear to address reliance on voting recommendations issued by such firms, and the conditions such firms must satisfy to rely on an exemption from the proxy rules.

Technical Points to Keep in Mind When Filing Upcoming Forms 10-K, 10-Q, and 8-K

August 1, 2019 | Posted by Michael A. Titera; Ronald O. Mueller; Elizabeth A. Ising Topic(s): Miscellaneous; Securities Regulation

As we discussed in a prior client alert (available here), in March 2019, the Securities and Exchange Commission (the “SEC") adopted a number of changes to modernize and simplify disclosure requirements (the “Final Rules"). While many of these changes went into effect on May 2, 2019, the SEC adopted phased compliance dates for the requirements to tag data on the cover pages of Forms 10-K, 10-Q, 8-K, 20‑F, and 40-F in Inline XBRL. The Final Rules set forth the following compliance dates (which mirror the compliance dates for operating companies to implement the general Inline XBRL requirements):

SEC To Propose Shareholder Proposal and Proxy Advisory Firm Rule Amendments

May 24, 2019 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Corporate Governance; Dodd Frank; Proxy Statements and Annual Meetings; Shareholder Proposals

On May 22, 2019 the SEC released its Spring 2019 Regulatory Flexibility Agenda (Reg Flex Agenda), available here. The Reg Flex Agenda identifies rulemaking projects that the SEC expects to address, and classifies those projects as being either in the “Proposed & Final Rule Stages," which reflects those that the SEC expects to propose over the coming year, and “Long-Term Actions," which includes those that the SEC is more likely to address over a longer timeframe.

Developments on Public Company Disclosures Regarding Board and Executive Diversity

February 8, 2019 | Posted by Elizabeth A. Ising; Lori Zyskowski; Ronald O. Mueller Topic(s): Corporate Governance; Proxy Statements and Annual Meetings; Securities Regulation

On February 6, 2019, the staff (Staff) of the Division of Corporation Finance of the Securities and Exchange Commission (SEC) issued two new identical Compliance and Disclosure Interpretations (C&DIs). The C&DIs address disclosure that the Staff expects public companies to include in their proxy statements and other SEC filings regarding “self-identified diversity characteristics" with respect to their directors and director nominees. In addition, legislation was introduced in both the U.S. House of Representatives and the U.S. Senate that would require public companies to annually disclose the gender, race, ethnicity and veteran status of their directors, director nominees, and senior executive officers.

Commonsense Principles 2.0 Released

October 24, 2018 | Posted by Elizabeth A. Ising; Lori Zyskowski Topic(s): Corporate Governance; Proxy Access; Shareholder Proposals

On October 18, 2018, the Commonsense Principles 2.0 (the “Principles 2.0") were released. They are an update to the Commonsense Principles of Corporate Governance (the “Previous Principles") developed in 2016 by a group of 13 business and investment leaders, including representatives of Berkshire Hathaway, BlackRock and State Street and the chief executive officers of several large public companies, available here, and discussed in a previous client alert.

The SEC Adopts Strategic Plan for 2018-2022

October 19, 2018 | Posted by Hillary H. Holmes; Brian J. Lane; Elizabeth A. Ising Topic(s): Corporate Governance; Securities Regulation

On June 19, 2018, the Securities and Exchange Commission (the “SEC") published a draft strategic plan outlining the SEC’s priorities through 2022 (the “Plan Draft"). As previously reported, the Plan Draft comprised three broad goals: focusing on retail investors, increasing innovation, and strengthening performance.

California Requires Public Companies Headquartered in California to Have Minimum Number of Women Directors on Board

October 3, 2018 | Posted by Stewart McDowell; Lori Zyskowski; Elizabeth A. Ising Topic(s): Corporate Governance

On September 30, 2018, Governor Jerry Brown signed SB 826 into law (effective January 1, 2019), requiring a minimum number of female directors on the boards of publicly traded corporations with principal executive offices in California. Under this new Section 301.3 to the California Corporation Code, the location of a corporation’s principal executive office will be determined by the corporations’ Annual Report on Form 10-K, and publicly traded corporation means any “corporation with outstanding shares listed on a major United States stock exchange."

SEC Streamlines Disclosure Requirements as Part of its Overall Disclosure Effectiveness Review

August 27, 2018 | Posted by Hillary H. Holmes; Elizabeth A. Ising; James J. Moloney; Michael A. Titera Topic(s): Miscellaneous; Securities Regulation

On August 17, 2018, the Securities and Exchange Commission (the “Commission") adopted several dozen amendments (available here) to “simplify compliance without significantly altering the total mix of information" (the “Final Rules"). In Release No. 33-10532, the Commission characterized the amended requirements as redundant, duplicative, overlapping, outdated or superseded, in light of subsequent changes to Commission disclosure requirements, U.S. GAAP, IFRS and technology developments.

SEC’s Division of Corporation Finance Issues Guidance Regarding the Voluntary Filing of Notices of Exempt Solicitation under Exchange Act Rule 14a-6(g)

August 1, 2018 | Posted by Ronald O. Mueller; Elizabeth A. Ising; Lori Zyskowski Topic(s): Corporate Governance; Proxy Statements and Annual Meetings; Shareholder Proposals

As we first noted in our March 2018 blog post, available here, and further discussed in our July 2018 client alert discussing shareholder proposals submitted to public companies during the 2018 proxy season, available here, both institutional and individual investors increasingly have used Notices of Exempt Solicitations under Exchange Act Rule 14a-6(g) as a means of publicizing shareholder proposals or addressing other matters being voted on at annual meetings. Rule 14a-6(g) requires a person who owns more than $5 million of a company’s stock and who conducts an exempt solicitation of the company’s shareholders (in which the person does not seek to have proxies granted to them) to file with the Securities and Exchange Commission (the “Commission") all written materials used in the solicitation.

House of Representatives Adopts Bipartisan Financial Reform – JOBS Act 3.0

July 19, 2018 | Posted by Elizabeth A. Ising Topic(s): JOBS Act; Securities Regulation

On July 17, 2018, the U.S. House of Representatives overwhelmingly passed, by a vote of 406-4, bipartisan financial reform legislation titled the “JOBS and Investor Confidence Act of 2018," frequently referred to as JOBS Act 3.0. The JOBS Act 3.0 builds upon the 2012 Jumpstart Our Business Startups (“JOBS") Act, and on the Fixing America’s Surface Transportation Act (the “FAST Act"), which was enacted in 2015 and is commonly referred to as JOBS Act 2.0.

Strengthening U.S. Public Capital Markets – Recommendations from SIFMA Report

May 11, 2018 | Posted by Hillary H. Holmes; Elizabeth A. Ising; Stewart McDowell; Peter Wardle; James J. Moloney Topic(s): Dodd Frank; JOBS Act; Securities Regulation

On April 27, 2018, the Securities Industry and Financial Markets Association (“SIFMA”), the leading industry group representing broker-dealers, banks and asset managers, along with other securities industry related groups, released a report called “Expanding the On-Ramp: Recommendations to Help More Companies Go and Stay Public” (the “Report”). In response to the decline in the number of IPOs and the number of public companies generally in the United States over the last twenty years, the Report provides recommendations aimed at reducing perceived impediments to becoming and remaining a public company. As the Report notes, the United States is now home to only about half the number of public companies that existed 20 years ago. This decline is believed to have had adverse repercussions for the American economy generally, and the jobs market specifically. In addition, the growth of private capital markets at the expense of public capital markets has raised concerns that individual investors are being marginalized. More specifically, as many of the most innovative companies in the U.S. stay private longer and raise significant amounts of capital privately, the returns generated by such companies appear to accrue disproportionally to institutional, high net worth and other similar investors.

New Twist for Old Shareholder Proposal Tactic

March 16, 2018 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Corporate Governance; Proxy Statements and Annual Meetings; Shareholder Proposals

Each year some public pension funds and other institutional shareholders voluntarily file with the U.S. Securities and Exchange Commission (SEC) a Notice of Exempt Solicitation under Exchange Act Rule 14a-6(g). This rule requires a person who owns more than $5 million of a company’s securities and who conducts an exempt solicitation of the company’s shareholders (in which the person does not seek to have proxies granted to them) to file with the SEC all written materials used in the solicitation. However, these funds also file these Notices, which appear on EDGAR as “PX14A6G” filings, typically to respond to a company’s statement in opposition to a shareholder proposal included in the proxy statement or to otherwise encourage (but not solicit proxies from) shareholders to vote a specific way on shareholder proposals, say on pay proposals and in “vote no” campaigns.

Federal Court Rejects Section 16(b) “Short-Swing Profits” Claim Challenging Share Withholding To Satisfy Taxes

January 26, 2018 | Posted by Elizabeth A. Ising; James J. Moloney Topic(s): Compensation Committee; Corporate Governance; Securities Regulation

A federal court in Oklahoma today issued a precedent-setting decision in favor of Gibson Dunn client WPX Energy, Inc., in Olagues v. Muncrief, No. 17-cv-153 (N.D. Okla. Jan. 26, 2018), ECF No. 42. In the decision, the court held that pre-approved tax withholding dispositions made in connection with the vesting of equity grants are exempt from Section 16(b)’s prohibition on short-swing profits under Exchange Act Rule 16b-3(e)—even when an employee otherwise subject to the short-swing trading restrictions purchased the company’s shares during the six-month period preceding or following the tax withholding disposition. This is the first time that a federal court has substantively addressed these types of short-swing trading claims, which have been serially raised by a small group of investors—first in the form of litigation demands and then, absent a payout to the investors, in litigation—during the last sixteen months. A number of companies have refused the investors’ settlement demands, which has resulted in Section 16(b) cases against the companies’ executives in federal courts in California, Colorado, Delaware, Florida, Massachusetts, North Carolina, Ohio, Oklahoma, Tennessee, Texas, and Washington state.

ISS Releases Surveys for 2018 Policy Updates

August 3, 2017 | Posted by Elizabeth A. Ising Topic(s): Corporate Governance; Executive Compensation; Say on Pay; Securities Regulation

On August 3, 2017, the proxy advisory firm Institutional Shareholder Services (“ISS”) launched its annual policy survey. Each year, ISS solicits comments in connection with the review of its proxy voting policies. ISS then uses the data to inform its voting policy review. At the end of this process, ISS will announce its updated proxy voting policies applicable to 2018 shareholder meetings.

SEC Warns that Securities Laws May Apply to Initial Coin Offerings and Other Digital Currency Sales

July 26, 2017 | Posted by Andrew L. Fabens; James J. Moloney; Elizabeth A. Ising; J. Alan Bannister Topic(s): Securities Regulation

On Tuesday, July 25, 2017, the Securities and Exchange Commission (“SEC”) issued a Report of Investigation (the “Report”) finding for the first time that an offer and sale of virtual currency, often called an Initial Coin Offering (abbreviated “ICO”) or “Token Sale”, can be subject to U.S. federal securities laws. While the SEC decided not to pursue an enforcement action in this particular instance, the SEC did find that that the ICO that was the subject of the Report involved an offering of securities subject to U.S. federal securities laws.

SEC Significantly Expands Confidential Review of Registration Statements

June 30, 2017 | Posted by Stewart McDowell; Andrew L. Fabens; Elizabeth A. Ising; James J. Moloney; Peter Wardle Topic(s): JOBS Act; Miscellaneous

Will Allow Confidential Submission of All Registration Statements for IPOs, Spin-Offs and Most Offerings Within 12 Months of an IPO or Spin-Off The Securities and Exchange Commission (“SEC”) announced[1] on Thursday that its the Staff of the Division of Corporation Finance (the “Staff”) will soon allow all companies to submit initial public offering (“IPO”) draft registration statements for confidential review. This change expands a benefit previously reserved for Emerging Growth Companies (“EGCs”), and is specifically aimed at encouraging more companies to enter the public market. The SEC also announced that it will review draft registration statements submitted by non EGCs that omit financial statements that the issuer reasonably believes will not be required when the registration statement is filed publicly, and indicated a willingness to discuss expedited reviews with issuers and their advisors.

Non-Voting Shares Make Their Public Debut and Generate Some Governance Concerns, but How Will Courts View the Structure When First Presented?

March 12, 2017 | Posted by James J. Moloney; Elizabeth A. Ising; Peter Wardle; Stewart McDowell Topic(s): Corporate Governance; Securities Regulation

On March 1, 2017, Snap Inc. (“Snap” or the “Company”) – owner of the popular social media platform Snapchat – priced its highly anticipated initial public offering (“IPO”). With 200 million shares sold at $17 per share, the IPO raised approximately $3.4 billion for the Company. On their first trading day, Snap shares opened at $22.41 per share and peaked as high as $28.84 the following day. As of March 10, shares closed at $22.07, above its initial offering price, but below its opening trading price. As the largest IPO of any U.S.-based company since Facebook’s public offering in 2012, many investors’ primary focus here has been on the complete lack of voting privileges associated with the shares sold in the IPO.

SEC Staff Grants No-Action Request Concurring with Exclusion of Shareholder Proposal On Virtual-Only Annual Meetings

January 4, 2017 | Posted by Lori Zyskowski; Elizabeth A. Ising; Ronald O. Mueller Topic(s): Corporate Governance; Proxy Statements and Annual Meetings; Shareholder Proposals

In recent years, an increasing number of companies have opted to hold annual shareholder meetings exclusively online. These annual meetings are commonly referred to as “virtual-only annual meetings”. In a decision critical for companies that currently hold or are contemplating switching to virtual-only annual meetings, the staff of the Securities and Exchange Commission (the “SEC Staff”) recently issued a no-action letter permitting a company to exclude a shareholder proposal that objected to virtual-only annual meetings. Specifically, the shareholder proposal requested that the company’s board adopt a policy to initiate or restore in-person annual meetings. The SEC Staff concurred that the proposal could be excluded under Rule 14a-8(i)(7) on the grounds that the decision whether to hold in-person annual meetings is related to the company’s ordinary business operations because the proposal “relates to the determination of whether to hold annual meetings in person.” The SEC Staff’s decision is not yet available on the SEC’s website.

First-Come, First-Served: Enrollment Opens for Glass Lewis 2017 Issuer Data Report Program

November 18, 2016 | Posted by Lori Zyskowski; Elizabeth A. Ising Topic(s): Corporate Governance; Proxy Statements and Annual Meetings

On November 17, Glass Lewis announced that it has opened enrollment for its 2017 Issuer Data Report (IDR) program. The IDR program enables public companies to access (for free!) a data-only version of the Glass Lewis Proxy Paper report prior to Glass Lewis completing its analysis and recommendations relating to public company annual shareholders meetings. Glass Lewis does not provide drafts of its voting recommendations report to issuers it reviews, so the IDR is the only way for issuers to confirm the accuracy of the data before Glass Lewis’ voting recommendations are distributed to its clients. Moreover, unlike Institutional Shareholder Services (ISS), Glass Lewis does not provide each issuer with complimentary access to the final voting recommendations for its annual shareholders meeting. IDRs feature key data points used in Glass Lewis’ corporate governance analysis, such as information on directors, auditors and their fees, summary compensation data and equity plans, among others. The IDR is not a preview of the final Glass Lewis analysis as no voting recommendations are included. Each participating public company receives its IDR approximately three weeks prior to its annual shareholders meeting and generally has 48 hours to review the IDR for accuracy and provide corrections, including supporting public documents, to Glass Lewis. Participation is limited to a specified number of companies, and enrollment is on a first-come, first-served basis. Enrollment closes on January 6, 2017, or as soon as the annual limit is reached. To learn more about the IDR program and sign up to receive a copy of the 2017 IDR for your company, go to https://www.meetyl.com/issuer_data_report.

Shareholder Nominates First Proxy Access Nominee

November 10, 2016 | Posted by Elizabeth A. Ising; Ronald O. Mueller; Lori Zyskowski; James J. Moloney Topic(s): Corporate Governance; Proxy Access

In what appears to be the first use of a company’s proxy access bylaw, GAMCO Asset Management filed today a Schedule 13D/A (available here ) and a Schedule 14N (available here ) announcing that it has used the proxy access bylaw at National Fuel Gas (NFG) to nominate a director candidate for election at NFG’s 2017 Annual Meeting. According to the 13D/A, GAMCO and its affiliates beneficially own in the aggregate approximately 7.81% of NFG’s Common Stock and yesterday delivered a letter to NFG nominating Lance A. Bakrow to the Board of Directors. NFG described itself in its most recent Form 10-K as “a diversified energy company engaged principally in the production, gathering, transportation, distribution and marketing of natural gas.” According to the Schedule 13D/A, Mr. Bakrow is the “co-founder and a director of Greenwich Energy Solutions, a private company that provides independent energy solutions in the northeastern United States.” NFG’s Proxy Access Bylaw

ISS Data Verification Period Open Until November 11 for New ISS QualityScore

October 31, 2016 | Posted by Ronald O. Mueller; Elizabeth A. Ising; Lori Zyskowski Topic(s): Corporate Governance

ISS Data Verification Period Open Until November 11 for New ISS QualityScore

Today proxy advisory firm Institutional Shareholder Services Inc. (“ISS”) opened the data verification period for its corporate governance rating system, which was formerly known as QuickScore. ISS also announced that it has revised and rebranded the rating system, which will now be referred to as QualityScore. QualityScore is the successor to ISS’s QuickScore, which in turn succeeded ISS’s Governance Risk Indicators (“GRId”) and Corporate Governance Quotient (“CGQ”) benchmarking tools.

SEC Corp Fin Staff Releases Guidance on CEO Pay Ratio Disclosure

October 19, 2016 | Posted by Ronald O. Mueller; Elizabeth A. Ising Topic(s): Compensation Committee; Corporate Governance; Dodd Frank; Executive Compensation; Securities Regulation

On October 18, the Division of Corporation Finance (the “Staff”) of the Securities and Exchange Commission (the “Commission”) released five Compliance and Disclosure Interpretations (“C&DIs”) addressing new Item 402(u) of Regulation S-K regarding CEO pay ratio disclosure.

Recent SEC Comment Letters Addressing Non-GAAP Financial Disclosures

October 4, 2016 | Posted by Elizabeth A. Ising; Brian J. Lane Topic(s): Audit Committee; Corporate Governance; Securities Regulation

Since the Division of Corporation Finance (the “Staff”) of the Securities and Exchange Commission (the “Commission”) released updated guidance addressing the use of non-GAAP financial measures on May 17, 2016, the Staff has made public over 200 comment letters sent to companies relating to non-GAAP disclosures. The below chart summarizes the major topics addressed in those comment letters and the frequency with which each topic appears.

ISS Releases Survey for 2017 Policy Updates

August 2, 2016 | Posted by Elizabeth A. Ising; Lori Zyskowski Topic(s): Corporate Governance; Executive Compensation; Say on Pay

Institutional Shareholder Services (“ISS”) today launched its annual global policy survey. Each year, ISS solicits comments in connection with the review of its proxy voting policies. At the end of this process, in November 2016, ISS will announce its updated proxy voting policies applicable to 2017 shareholders’ meetings. ISS will publish the results from the policy survey and use them to inform its voting policy review. The survey includes questions on several governance and compensation matters relevant to U.S. companies, as follows:

SEC Files Fraud Charges Against Public Biotechnology Company and its Officers for Alleged Materially Misleading FDA-Related Disclosures

March 30, 2016 | Posted by Elizabeth A. Ising; Peter Wardle Topic(s): Miscellaneous; Securities Regulation

On March 29, 2016, the SEC announced that it had filed fraud charges in U.S. federal court against AVEO Pharmaceuticals, Inc. (“AVEO”), a Massachusetts-based biotechnology company, and three of its former executives. The complaint alleges that AVEO and its former Chief Executive Officer, Chief Financial Officer and Chief Medical Officer violated the antifraud provisions of the federal securities laws by misleading investors about the company’s communications with the FDA during the approval process for tivozanib, AVEO’s leading product candidate being developed as a treatment for kidney cancer. According to the complaint, the FDA raised concerns to AVEO in a May 2012 pre-NDA, or New Drug Application, meeting related to the survival rates of patients receiving tivozanib during AVEO’s first clinical trial of tivozanib relative to patients receiving the other compound, sorafenib, being used as a comparator in the trial. An NDA is the formal process by which a company seeks FDA approval of a new pharmaceutical for commercialization. In the pre-NDA meeting, FDA staff recommended that AVEO conduct a second clinical trial. The SEC alleged in its complaint that, for more than eleven months following the FDA’s recommendation of a second clinical trial, AVEO and the officers named in the complaint concealed from investors the extent of the FDA’s concerns about tivozanib and its recommendation that the company conduct a second clinical trial. Among other charges, the SEC alleged that:

New SEC Staff Guidance on Describing Shareholder Proposals on Proxy Cards

March 23, 2016 | Posted by Elizabeth A. Ising; James J. Moloney; Lori Zyskowski; Ronald O. Mueller Topic(s): Securities Regulation

On March 22, 2016, the Division of Corporation Finance of the Securities and Exchange Commission (the “Staff”) issued a new Compliance and Disclosure Interpretation (C&DI) regarding how Rule 14a-8 shareholder proposals should be described on issuer proxy cards in compliance with Rule 14a-4(a)(3) of the Securities Exchange Act of 1934. This C&DI was issued in response to complaints the Staff received from shareholder proponents about the lack of specificity on some companies’ proxy cards.

One More Time! SEC Seeks to Re-Adopt Resource Extraction Disclosure Rules

December 13, 2015 | Posted by Elizabeth A. Ising; James J. Moloney Topic(s): Dodd Frank; Securities Regulation

On December 11, 2015, the Securities and Exchange Commission voted to propose a new rule implementing Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. That provision directs the SEC to promulgate rules requiring “resource extraction issuer[s]” (i.e., issuers that extract natural resources) to disclose payments they make to the U.S. government or foreign governments for the commercial development of oil, natural gas, or minerals. The SEC’s latest action follows a ruling by a federal district court in Massachusetts directing the SEC to expedite its promulgation of a new rule implementing Section 1504.

Mark Your Calendars – Pending Deadlines for Submitting Updated Company Peer Group Information to ISS and Equilar/Glass Lewis

November 20, 2015 | Posted by Elizabeth A. Ising; Lori Zyskowski; Ronald O. Mueller Topic(s): Compensation Committee; Executive Compensation; Say on Pay

Institutional Shareholder Services (“ISS”) has announced that companies can provide it with updated information as to the company-selected compensation benchmarking peer group, beginning at 9 am EST on Tuesday, November 24, 2015. In addition, Equilar Inc.’s (“Equilar”) company-selected peer group update portal opened earlier this week. Since July 2012, Glass Lewis & Co., LLC (“Glass Lewis”) has been using peer groups generated by Equilar in its pay-for-performance analysis.

ISS Opens Comment Period for Draft 2016 Proxy Voting Policy Updates

October 26, 2015 | Posted by Elizabeth A. Ising; Lori Zyskowski; Ronald O. Mueller; James J. Moloney Topic(s): Corporate Governance; Executive Compensation; Say on Pay; Securities Regulation

Today Institutional Shareholder Services (“ISS”) proposed for comment three changes to its 2016 U.S. proxy voting policies. Comments on the proposed changes can be submitted via e‑mail to [email protected] by 6 p.m. ET on November 9, 2015. ISS will take the comments into account as part of its policy review and expects to release its final 2016 U.S. policy updates on November 18, 2015. We note that ISS’s final 2016 proxy voting policies, which will apply to shareholder meetings held on or after February 1, 2016, likely will reflect additional changes beyond these on which ISS has solicited comments.

SEC Staff Reverses Longstanding Precedent on Exclusion of Conflicting Shareholder Proposals Rule; Affirms Business as Usual on Ordinary Business Rule

October 26, 2015 | Posted by Ronald O. Mueller; Elizabeth A. Ising; Lori Zyskowski Topic(s): Corporate Governance; Proxy Access

On October 22, 2015, the Securities and Exchange Commission’s ("SEC" or "Commission") Division of Corporation Finance (the "Division") issued Staff Legal Bulletin No. 14H ("SLB 14H"), setting forth a dramatically different standard for when it will concur that a shareholder proposal that conflicts with a company proposal can be excluded from the company’s proxy statement under Rule 14a-8(i)(9). The Division also reaffirmed its views on the application of the "ordinary business" standard in Rule 14a-8(i)(7). SLB 14H is available here.

Massachusetts District Court Orders the SEC to Issue Final Resource Extraction Rule

September 4, 2015 | Posted by Brian J. Lane; Elizabeth A. Ising; Lori Zyskowski; James J. Moloney Topic(s): Dodd Frank; Securities Regulation

On September 2, 2015, following a briefing by Oxfam America, Inc. (“Oxfam”) and the Securities and Exchange Commission (the “SEC” or the “Commission”), the U.S. District Court for the District of Massachusetts granted Oxfam’s motion for summary judgment and ordered the SEC to file with the Court within 30 days “an expedited schedule for promulgating the final [resource extraction] rule.

D.C. Circuit Issues Conflict Minerals Decision, but Uncertainty Remains

August 21, 2015 | Posted by Lori Zyskowski; James J. Moloney; Elizabeth A. Ising; Ronald O. Mueller Topic(s): Dodd Frank; Securities Regulation

On August 18, 2015, following a panel rehearing, the U.S. Court of Appeals for the D.C. Circuit issued an opinion affirming its April 2014 decision in National Association of Manufacturers, et al. v. SEC, et al. (“NAM”) that the conflict minerals disclosure rule violates the First Amendment to the extent it requires companies to report that any of their products have “not been found to be ‘DRC conflict free.’” The NAM panel had granted a petition for rehearing in light of a July 2014 ruling in American Meat Institute v. U.S. Department of Agriculture (“AMI”), in which an en banc panel of the D.C. Circuit upheld the constitutionality of compelled speech in the form of Department of Agriculture rules requiring country-of-origin labeling for meat products and raised issues regarding the standard of review to be applied by the court in reviewing the First Amendment challenge in NAM. Because the opinion also addressed the appropriate standard of review to be applied by courts in reviewing compelled speech in the regulatory arena, the NAM panel saw fit to reconsider its decision in light of AMI.

Council of Institutional Investors Announces Its Views on Proxy Access Best Practices

August 5, 2015 | Posted by Elizabeth A. Ising; Lori Zyskowski; Ronald O. Mueller Topic(s): Corporate Governance; Dodd Frank; Proxy Access

Today the Council of Institutional Investors (“CII”), a nonprofit association of corporate, public and union employee benefit funds and endowments that seeks to promote effective corporate governance practices for U.S. companies and strong shareholder rights and protections, published a report titled “Proxy Access: Best Practices” that describes CII’s views on seven provisions that companies typically address when implementing proxy access. The CII report is available here.

ISS Releases Survey for 2016 Policy Updates

August 4, 2015 | Posted by Elizabeth A. Ising; Lori Zyskowski Topic(s): Corporate Governance; Executive Compensation; Proxy Access

SEC Proposes Rules Regarding Clawbacks

July 1, 2015 | Posted by Elizabeth A. Ising; Lori Zyskowski; Ronald O. Mueller Topic(s): Compensation Committee; Corporate Governance; Dodd Frank; Executive Compensation

The Securities and Exchange Commission (the “SEC”) today voted, 3-2, to issue proposed rules implementing the mandate in Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) that the SEC require national securities exchanges and associations to adopt a listing standard that requires listed companies to adopt and enforce a clawback policy.

New Investor Guide on Engaging With Public Companies and Others on ESG Issues

June 3, 2015 | Posted by Elizabeth A. Ising Topic(s): Corporate Governance; Securities Regulation

On May 28, 2015, BlackRock and Ceres released a guide for investors on engaging with public companies, asset managers and policymakers on environmental, social and governance (“ESG”) sustainability matters. The guide, titled “21^st Century Engagement: Investor Strategies for Incorporating ESG Considerations into Corporate Interactions,” includes sections written by BlackRock and Ceres as well as AFL-CIO, California Public Employees Retirement System (“CalPERS”), California State Teachers Retirement System (“CalSTRS”), Council of Institutional Investors (“CII”), International Corporate Governance Network (“ICGN”), the Office of New York City Comptroller, New York State Common Retirement Fund, North Carolina Department of State Treasurer, PGGM, State Board of Administration of Florida, TIAA-CREF, T. Rowe Price and UAW Retiree Medical Benefits Trust.

SEC Proposes Rules On “Pay Versus Performance” Disclosures

April 30, 2015 | Posted by Elizabeth A. Ising; James J. Moloney; Ronald O. Mueller Topic(s): Compensation Committee; Corporate Governance; Dodd Frank; Executive Compensation; Say on Pay

To Our Clients and Friends:

On April 29, 2015, the Securities and Exchange Commission ("SEC" or "Commission") voted, 3-2, to issue proposed rules implementing the pay-versus-performance disclosure requirement in Section 953(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act"). In summary, the proposed rules would require proxy statements or information statements setting forth executive compensation disclosure to include (1) a new compensation table setting forth for each of the five most recently completed fiscal years, the "executive compensation actually paid" (as defined in the proposed rules), total compensation as disclosed in the Summary Compensation Table, total shareholder return (TSR), and peer group TSR, and (2) based on the information set forth in the new table, a clear description of the relationship between executive compensation actually paid to the company’s named executive officers and the company’s TSR, and a comparison of the company’s TSR and the TSR of a peer group chosen by the company.

ISS Issues Guidance on Proxy Access Voting Policy and Other Key Policies

February 19, 2015 | Posted by Ronald O. Mueller; Elizabeth A. Ising; Lori Zyskowski Topic(s): Corporate Governance; Proxy Access

On February 19, 2015, Institutional Shareholder Services (“ISS”) issued FAQs (available here) clarifying its policy on proxy access proposals as well as other key issues, including omission of shareholder proposals from company proxy materials in the absence of no-action relief from the Securities and Exchange Commission (“SEC”) staff, exclusive forum bylaws, and other bylaw amendments adopted without shareholder approval. 1. Proxy Access. Under the approach announced in the FAQs, ISS generally will support both shareholder and company proposals that provide for proxy access with the following features:

SEC Ceases To Issue No-Action Letters on Conflicting Shareholder Proposals

January 16, 2015 | Posted by Elizabeth A. Ising; Ronald O. Mueller; Lori Zyskowski Topic(s): Corporate Governance; Proxy Access

Today the Securities and Exchange Commission (“SEC”) staff announced that it will no longer express views on the application of Rule 14a-8(i)(9), one of the bases for excluding shareholder proposals from company proxy materials, during the current proxy season. The staff’s announcement is a result of today’s announcement by SEC Chair Mary Jo White that she has directed the staff of Division of Corporation Finance to review the rule and report to the Commission on its review.

SEC Delays Action Date for Internal Pay Ratio Final Rules

November 26, 2014 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Compensation Committee; Dodd Frank; Executive Compensation

In its most recently published regulatory rulemaking agenda, the SEC delayed its final action date for issuing rules to implement the internal pay ratio disclosure requirement in Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). The rulemaking agenda previously provided that the SEC intended to issue final rules no later than October 2014, but now has rolled that date back to October 2015. The rulemaking agenda sets forth the SEC’s rulemaking priorities for the coming year, but does not establish deadlines and may not even reflect the order in which rulemaking will be undertaken, meaning that the Commission could still adopt final internal pay ratio rules prior to October 2015. Based on the proposed internal pay ratio rules, the final rules are projected to apply to the first full year following the effective date, meaning that if final rules become effective in 2015, the rules would first apply to 2016 compensation and the internal pay ratio disclosures would need to be included in companies’ 2017 proxy statements. However, the Commission could revise these provisions in its final rules to require earlier or allow for a later compliance date. The SEC likewise extended the final action dates for proposing rules under the other compensation-related provisions of the Dodd-Frank Act dealing with clawbacks, pay-for-performance disclosure, and director and employee hedging disclosure from October 2014 to October 2015.

ISS TO LAUNCH NEW “QUICKSCORE 3.0”

October 28, 2014 | Posted by Elizabeth A. Ising Topic(s): Corporate Governance

Last week, proxy advisory firm Institutional Shareholder Services Inc. (“ISS”) released information about the updated version of its corporate governance benchmarking tool, ISS Governance QuickScore 3.0 (“QuickScore 3.0”), which will launch on November 24, 2014. Companies should take certain actions now and in early November to prepare for the launch of new QuickScore 3.0, as discussed below. QuickScore 3.0 includes both new data points and updates to existing data points for U.S. companies. ISS is expected to release the details of these changes later this week, but below is a summary of the changes we have been able to determine based on the preliminary information released by ISS.

ISS Announces Proposed Changes to Proxy Voting Policy on Independent Chair Shareholder Proposals Voted on at 2015 Shareholder Meetings

October 15, 2014 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Corporate Governance

Today, the proxy advisory firm Institutional Shareholder Services Inc. (“ISS”) announced proposed changes to its voting policy on independent chair shareholder proposals and opened the comment period until October 29, 2014, to solicit feedback on the changes. This is one of two significant proposals ISS announced today that would impact U.S. companies for the 2015 proxy season.

ISS Provides Additional Information on New Proxy Voting “Scorecard” Approach for Evaluating Equity Compensation Plan Proposals at 2015 Shareholder Meetings

October 15, 2014 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Compensation Committee; Corporate Governance

Today, proxy advisory firm Institutional Shareholder Services Inc. (“ISS”) provided additional information on its plans to implement a new “scorecard” approach to evaluating equity compensation plan proposals at U.S. shareholder meetings and requested comments on its proposed policy change. This is one of two significant proposals ISS announced today that would impact U.S. companies for the 2015 proxy season, with the other proposed policy change relating to voting recommendations on independent chair proposals (which we discuss here). Companies considering seeking shareholder approval of equity plans at shareholder meetings in 2015 should consider these proposed changes now to the extent they want ISS to recommend votes “For” the equity plan.

ISS Releases Survey for 2015 Policy Updates

July 17, 2014 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Audit Committee; Compensation Committee; Corporate Governance; Executive Compensation; Say on Pay

Institutional Shareholder Services Inc. (“ISS”), the most influential proxy advisory firm, today launched its 10^th annual global policy survey. Each year, ISS solicits comments in connection with its review of its proxy voting policies. At the end of this process, in November 2014, ISS will announce its updated proxy voting policies applicable to 2015 shareholders’ meetings.

The Council of Institutional Investors Presses SEC Staff for Guidance on Interim Vote Tallies

April 7, 2014 | Posted by James J. Moloney; Elizabeth A. Ising Topic(s): Corporate Governance; Securities Regulation

Last May, Broadridge Financial Solutions, Inc., the provider of proxy services for over 90% of public companies and mutual funds in North America (“Broadridge”), decided to end its established practice of providing interim vote tallies (sometimes referred to as “preliminary voting results”) to proponents of shareholder proposals. Following this change in practice, the Council of Institutional Investors (“CII”) sent a letter to the SEC asking the Commission to reverse Broadridge’s change in practice. Later in July, Broadridge reviewed its decision, promising to “continue to monitor developments on th[e] issue” and noting that it is contractually obligated to follow client directions regarding release of interim vote tallies.

ISS To Revise QuickScore

January 9, 2014 | Posted by Elizabeth A. Ising Topic(s): Corporate Governance; Executive Compensation

On January 8, 2014, Institutional Shareholder Services, Inc. (“ISS”) announced that it will launch a new version of QuickScore (“QuickScore 2.0”) on February 18, 2014. QuickScore benchmarks a company’s governance risk against other companies in the Russell 3000 Index based on a number of weighted governance factors. QuickScore 2.0 will use a different method to score companies’ governance risk and will automatically reflect changes in companies’ governance structures based on publicly disclosed information.

ISS Opens Comment Period for 2014 Proxy Voting Policies

October 24, 2013 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Corporate Governance

On October 22, 2013, Institutional Shareholder Services (“ISS”) announced two proposed changes to its 2014 U.S. proxy voting policy. ISS requested comments on the proposed changes, which can be submitted via e-mail to [email protected] by November 4, 2013. ISS will take the comments into account when issuing its 2014 proxy voting policies. It is important to note that ISS’s final U.S. policy updates for 2014, which are expected to be released in November, may reflect additional changes beyond the two on which ISS has solicited comments.

Vanguard Proactively Reaching Out to Companies to Address Governance Concerns

October 16, 2013 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Corporate Governance

In anticipation of the 2014 proxy season, Vanguard is sending letters to approximately 350 companies to proactively engage with them on governance issues. The letters are tailored to the individual companies and identify governance practices at the companies that Vanguard believes are not in line with what Vanguard views as best practices.

SEC Staff Grants Request to Exclude Rule 14a-8 Shareholder Proposal Regarding Repayment of Student Loans

October 2, 2013 | Posted by Ronald O. Mueller; Elizabeth A. Ising Topic(s): Corporate Governance; Securities Regulation

Gibson Dunn successfully represented DeVry Inc. in obtaining no-action relief from the SEC staff (the “Staff”) for the exclusion of a shareholder proposal requesting that DeVry “annually report to shareholders on the expected ability of students at Company-owned institutions to repay their student loans.” The shareholder proposal, which was submitted by the New York City Comptroller’s Office on behalf of several New York City pension funds, specified particular quantitative and other information to be included in the requested report. DeVry’s no-action request argued that DeVry could exclude the shareholder proposal under Rule 14a-8(i)(7) as relating to DeVry’s ordinary business operations because the proposal implicated decisions concerning product quality. The no-action request identified shareholder proposal precedents relating to the quality of products or services in other industries (such as beverages and banking) and pointed out that, similar to those precedents, the proposal at issue was focused on the quality of DeVry’s educational services. In a response letter dated September 6, 2013, the Staff concurred that the shareholder proposal could be excluded, noting that “the proposal focuses primarily on information the company should provide regarding the quality of its educational services” and that “[p]roposals that concern product quality are generally excludable under rule 14a-8(i)(7).” The Staff’s decision to grant DeVry’s no-action request is notable because the Staff had denied a no-action request earlier this year regarding an identical shareholder proposal submitted to another company. The earlier no-action request had also asserted that the proposal was excludable under Rule 14a-8(i)(7), but its reasoning focused on the proposal’s infringement of the company’s risk assessment practices and compliance with laws rather than on how the proposal implicated the quality of the company’s products or services. The Staff’s concurrence with DeVry’s no-action request highlights the importance of identifying the appropriate issue that may support exclusion of a shareholder proposal, exploring and addressing any precedents and clearly articulating the reasons for which the proposal implicates a particular basis for exclusion.

SEC Proposes Rules Regarding Internal Pay Ratio Disclosure

September 18, 2013 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Compensation Committee; Dodd Frank; Executive Compensation; Securities Regulation

The SEC today held an open meeting and voted, 3-2, to approve the issuance of proposed rules to implement the internal pay ratio disclosure requirement in Section 953(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). SEC Chair Mary Jo White and Commissioners Kara Stein and Luis Aguilar voted to propose the rules and Commissioners Daniel Gallagher and Michael Piwowar dissented. Statements made by the Commissioners today regarding the proposal are on the SEC website and available here. The comment period for the SEC’s proposed rules will be 60 days after the proposing release is published in the Federal Register; the proposing release is on the SEC website and available here.

Reminder to Respond This Week to the ISS Policy Survey

September 11, 2013 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Corporate Governance

Companies wishing to participate in Institutional Shareholder Services’ (“ISS”) annual global policy survey should do so this week. The ISS policy survey closes on September 13. Public companies and others are urged to submit their views by completing the survey, as ISS considers the responses to its survey when developing its proxy voting policies for the coming proxy season. When responding to the survey, it is not necessary to enter a response to every question that is asked.

ISS Releases Survey for 2014 Policy Updates

July 31, 2013 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Corporate Governance

Institutional Shareholder Services (“ISS”), the most influential proxy advisory firm, today launched its annual global policy survey. Each year, ISS solicits comments in connection with its review of its proxy voting policies. At the end of this process, in November 2013, ISS will announce its updated proxy voting policies applicable to 2014 shareholders’ meetings.

Guidance on Compensation Committees’ Assessment of Adviser Independence

May 22, 2013 | Posted by Elizabeth A. Ising; Brian J. Lane; Ronald O. Mueller Topic(s): Compensation Committee; Corporate Governance; Dodd Frank; Executive Compensation

As discussed in our April 26, 2013 posting on the Gibson Dunn Securities Regulation and Corporate Governance Monitor, under recently amended NYSE Rule 303A.05 and NASDAQ Rule 5605(d), board compensation committees cannot select or receive advice from a compensation consultant, legal counsel or other adviser without first taking into consideration that adviser’s independence, including consideration of the factors enumerated in the rules. As compensation committees and their advisers are preparing for the July 1 effective date of these new listing standards, three observations are important:

July 1, 2013 Deadline Approaches for Updates to Compensation Committee Charters

April 26, 2013 | Posted by Elizabeth A. Ising; Ronald O. Mueller Topic(s): Compensation Committee; Corporate Governance; Dodd Frank; Executive Compensation

By July 1, 2013, companies listed on the New York Stock Exchange (“NYSE”) and NASDAQ Stock Market (“NASDAQ”) must comply with new listing standards relating to compensation committees and their responsibilities and authority with respect to outside advisers. In view of the upcoming deadline, listed companies should review and update their compensation committee charters to provide the committee with these responsibilities and authority. In addition, compensation committees will need to assess the independence of their advisers in the coming months so they can receive advice from them after July 1.

Three Recent Surveys Provide Insights On Corporate Governance

April 15, 2013 | Posted by Elizabeth A. Ising Topic(s): Corporate Governance

Since January, three new surveys have become available that provide insights on corporate governance practices at public companies. The surveys, which are released annually, are from Institutional Shareholder Services Inc. (“ISS”), The Conference Board, Inc. (in collaboration with NASDAQ OMX and NYSE Euronext), and Deloitte LLP (in collaboration with the Society of Corporate Secretaries and Governance Professionals). These surveys can be a useful tool for companies seeking to benchmark their board practices against those of their peer companies.