Representing Corporate Officers, Directors, Managers, and Trustees, Second Edition

By Marc J. Lane

Now Comprehensively Supplemented!

Representing Corporate Officers, Directors, Managers, and Trustees, Second Edition is a guide to the practical aspects of corporate governance for attorneys, officers, directors, managers, and trustees. The introduction of new legislation, rules, and standards by governmental bodies and society in the wake of recent corporate and accounting scandals has lead to a focus upon the responsibilities and liabilities of directors, officers, managers, and trustees.  A host of new hurdles have arisen. Increased SEC oversight, new NYSE and NASDAQ listing standards, new fiduciary and other duties, and new criminal penalties have changed the landscape for those who control corporation and have cast new meaning unto preexisting law.

The author’s careful examination of the terrain of the current business world with an experienced legal eye identifies these and other new landmarks of law for the busy director or officer. By logically laying out the new steps to safe corporate governance, the cases, tables, and checklists will comfort the veteran and neophyte alike.

Highlights of the 2015 Supplement

The 2015 Supplement to Representing Corporate Officers and Directors brings the text up to date by reflecting the most up-to-date needs of directors, officers, managers, and trustees and requirements of the laws, rules, and standards that affect them, including:

• A new section concerning cybersecurity for registered investment advisers and registered investment companies. This section also includes general discussion regarding cybersecurity guidance released by the Department of Justice and SEC (§ 1.03[F][5].
• A new section discussing proposed Dodd-Frank reforms, specifically the Financial Regulatory Improvement Act of 2015 (§ 1.03[F][6].
• A new section concerning proxy rule updates by Glass Lewis and ISS. Discussion also includes a recent no-action letter and case law related to proxy rights (§ 1.06[A][2]).
• Expanded discussion concerning nonprofit governance, specifically Form 990 (§ 1.16).
• Expanded discussions of:
• Pay-for-performance disclosure rules (§ 2.04 [E][1][a]).
• Compensation Committees and shareholder-approved compensation plans (§ 2.04[E][2]).
• Disclosure of the ratio of CEO pay to median employee pay (§ 2.04[E][6][b][ii]).
• A new section involving nonprofit director liability for breaches of the duty of care (§ 3.06[B]).
• Discussion of a Delaware Supreme Court opinion that would have allowed a board of directors to unilaterally adopt a bylaw requiring shareholders who unsuccessfully sue a corporation to be liable for the corporation’s attorneys’ fees (§ 3.19[E].
• Expanded discussion concerning appraisal rights and recent court decisions in which the Delaware Supreme Court put greater reliance on the merger price being the most reliable indicator of fair value (§ 7.05).
• A new section regarding Section 21F of the Securities Exchange Act of 1934 and general discussion of the SEC’s whistleblower program (§ 9.01[A][3]).
• New section discussing Section 11 liability and court decision possibly making it more difficult for a plaintiff to adequately plead a Section 11 claim based on a false statement of opinion (§ 9.02[C][3][b][iii]).
• A new section concerning final rules for Regulation A+, which provide an exemption for offerings of up to $50 million of securities within a 12-month period (§ 9.02[B][4][b][i]).
• Updated section discussing recent SEC guidance related to Section 13D settlement proceedings (§ 9.02[B][4][a][i]).
• Expanded discussion concerning bad actor guidance (§ 9.02[B][4][a][i]).
• Expanded discussion regarding insider trading and recent court decisions (§ 9.03[C][2]).
• Updates regarding state laws on L3Cs and benefit corporations (§ 11.01).

The Table of Cases and Index have been extensively updated to reflect these additions, changes, and integrations.

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