Taking Another Look at Virtual Stockholder Meetings as the Coronavirus COVID-19 Outbreak Spreads

Guest post by Lisa R. Stark, Sean M. Jones and Sara M. Kirkpatrick of K&L Gates LLP

As proxy season rapidly approaches and concern over the Coronavirus Disease 2019 (COVID-19) increases, U.S. public companies have been weighing risks associated with holding in-person annual stockholder meetings. While the vast majority of U.S. public companies continue to hold annual stockholder meetings at a physical location, in light of the COVID-19 outbreak, many corporations are now considering whether to hold the meeting solely by means of remote communication or to hold a hybrid meeting whereby stockholders may choose to participate either in person or remotely. Notably, on March 3, 2020, Starbucks changed its annual meeting of stockholders from a meeting held at a physical location to a virtual-only meeting due to concerns over the COVID-19. Additionally, on March 4, 2020,The Bank of New York Mellon Corporation noted that as part of its precautions, it was planning for the possibility that its annual meeting may be held solely by means of remote communications.

Continue reading

Recent Delaware Cases Reinforce Director Accountability for Risk Oversight

Guest post by attorneys at Davis Polk & Wardwell LLP

Recent Delaware Decisions Focus on Director Oversight Liability

Two recent Delaware decisions may give ammunition to stockholder plaintiffs seeking to assert claims against directors under a Caremark theory for failing to comply with their oversight obligations. The decisions—Marchand v. Barnhill (“Blue Bell”) and In re Clovis Oncology, Inc. Derivative Litigation—make clear that courts will not give business-judgment rule deference when presented with allegations that directors acted in bad faith by failing to implement or monitor systems of oversight. Although each case was before the courts on a motion to dismiss and therefore did not finally adjudicate the question of director liability, each decision undoubtedly strengthens the plaintiff’s hand in settlement negotiations needed to avoid trial. Importantly, because these claims are for breaches of the duty of loyalty, directors face the risk of personal liability without the protection of exculpation or indemnification, or possibly even D&O insurance coverage.

Continue reading

Yet Another Proposal to Require Disclosure of Board’s Cyber Expertise

Guest post by Stephanie Teplin and Craig A. Newman from Patterson Belknap Webb & Tyler LLP

Before investing in a company, would you want to know whether the board of directors had cybersecurity expertise?

A bipartisan group of senators have proposed a bill, Senate Bill 592, that would require every public company to disclose the cybersecurity background of its directors, and, if none exists, explain why the company doesn’t believe it is necessary.

Continue reading

CAUTION: Director Veto Rights in Financing Documents May Constitute “Disproportionate Voting”

Guest post by Lewis J. Geffen, Soobin Kim of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 

Section 141(d) of the Delaware General Corporations Law (DGCL) allows the certificate of incorporation (COI) of a Delaware corporation to confer upon one or more directors voting powers greater than or less than those of other directors, thus resulting in “disproportionate voting” rights amongst the Directors.  When VC funds, their portfolio companies and VC lawyers read or think about DGCL 141(d) and this disproportionate voting, they usually, and narrowly, have in mind only the question of whether certain directors may have more than or less than one vote per Director on matters voted on by the Board, or a committee of the Board. 

Continue reading

Completing A Name Change Without Shareholder Approval

Guest Post by Laura Anthony, Esq – Legal & Compliance, LLC

Generally a name change is completed through an amendment to a company’s articles of incorporation.  Moreover, amendments to articles of incorporation generally require shareholder consent, which can be time-consuming and expensive and become even more so if the company is subject to the reporting requirements of the Securities Exchange Act of 1934.

Continue reading

‘Get Out of Jail Free’ Card

Joseph W. Bartlett, Co-Founder of VCExperts.com

Various attacks are mounted against the boards and managers of U.S. publicly held companies based on alleged deficiencies in the disclosure of financial results, the prosecution’s case buttressed by a emails discovered in the cloud from disgruntled insiders. The legal issues have been analyzed ad infinitum by the media and legal commentators. There is no effort from this corner to add to that enhanced commentary.

Continue reading