NYSE Governance Services

Hot Topics in General Counsel/Corporate Secretary

The Rise of the GC: From Legal Adviser to strategic Adviser

April 11, 2016

BarkerGilmore

As the scope of both enterprise risk oversight and corporate governance continues to expand and evolve, so does the role of the corporate general counsel. There is little argument that today’s GC has a much wider purview beyond the customary responsibility of serving as the organization’s chief legal officer and, quite often, its corporate secretary. As these roles shift, many organizations are finding that the perspective of the general counsel—who has been trained to analyze issues legally, ethically, and objectively, is uniquely positioned to bring additional insights to strategic decisions.

Three Surprising Trends in General Counsel Succession Planning

May 29, 2015

By Robert Barker

Given the growing influence and value which General Counsel bring to the C-Suite, companies increasingly recognize the importance of succession planning for this key role, according to the results of an exclusive survey conducted by BarkerGilmore and NYSE Governance Services.

The study, “GCs: Adding Value to the C-Suite,” sought the opinions of CEOs and directors of publicly traded companies.

Its findings underscore the changing and evolving perceptions of the role of General Counsel and the escalating awareness that this trusted advisor is critical to corporate operations.

Recent Decisions Confirm That Forum Selection Bylaws Are Best Considered on a Clear Day – But May be Beneficial Later as Well

October 6, 2014

By Michael G. O’Bryan, Kevin A. Calia, and James J. Beha II, Morrison & Foerster

“Exclusive forum” bylaws and charter provisions are a powerful tool for managing the risk of parallel corporate governance litigation against a company and its directors in multiple forums, allowing stockholders to bring such litigation but requiring that they bring it in one specified jurisdiction, typically the company’s state of incorporation. The Delaware Chancery Court, in its 2013 Chevron decision, held that such provisions are generally enforceable, and courts in several other states have dismissed stockholder litigation based on Delaware forum selection provisions. As a result, more companies are adopting such provisions.

2014 General Counsel Survey

September 19, 2014

From Grant Thornton LLP

A Grant Thornton LLP online survey, conducted in early 2014 by American Lawyer Media, served to gain further insight into in-house counsels’ assessment of the following top three threats uncovered in the 2013 survey:

  • Regulatory compliance related to corruption and bribery
  • Regulatory-related litigation and investigations
  • Cybersecurity and data privacy

The results show that in-house counsel are dealing with a lack of resources, which impacts their ability to proactively reduce and appropriately react to these risks.

Talking Points: Addressing Boardroom Confidentiality

September 19, 2014

From Corporate Board Member

While trends like cyber security and increased activism from investors compete for attention with the usual board concerns, like compensation and compliance, Akin Gump listed its Top Ten Topics for Directors in 2014 and boardroom confidentiality made the list. Laura J. Finn, web editor, boardmember.com, asked Kerry Berchem, head of Akin Gump’s corporate practice, why she sees boardroom confidentiality as one of the top issues for boards in 2014. Berchem’s view? “Confidentially is never an issue until it is an issue,” but when that kind of issue arises, there’s much at risk for a board.

Communicating Voluntary Disclosure of Corporate Political Spending

August 1, 2014

By Charles Nathan, RLM Finsbury

Over the past several years, judicial decisions involving Citizens United, McCutcheon and SpeechNow.org have lifted caps on total political contributions, and also expanded the number of avenues through and amounts which companies can lawfully contribute to political campaigns. Corporate donations can still be made to recipients like political action committees and third-party organizations (such as trade associations). Now, however, companies can also contribute directly to campaigns and to organizations that support candidates and political causes, including Section 501(c)(4) social welfare organizations.

Dodd-Frank At 4: Where Do We Go from Here?

July 23, 2014

From Morrison & Foerster

Where do we go from here? As we mark another milestone in regulatory reform with the fourth anniversary of the enactment of the Dodd-Frank Act, it strikes us that although most studies required to be undertaken by the Act have been released and final rules have been promulgated addressing many of the most important regulatory measures, we are still living with a great deal of regulatory uncertainty and extraordinary regulatory complexity.

Maximizing Value: Considerations for Directors of a Company in Distress

February 3, 2014

By Michael H. Torkin, Sullivan & Cromwell LLP

The U.S. corporate default rate currently is below historical averages, hovering slightly below 2008 pre-crisis levels. Restructuring professionals, however, are cautioning that a rising interest rate environment, exacerbated by the Fed’s reduction in fiscal stimulus, could lead to a softening of the ongoing robust multiyear credit cycle. In addition, it has been reported that the Department of Treasury’s Office of the Comptroller of the Currency has “suggested” to a number of U.S. institutional lenders that they begin to more closely scrutinize credit standards – focusing on reigning in issuances of covenant-light high yield debt as well as tightening leverage ratios. If credit tightens, leveraged companies that have successfully accessed traditional credit markets could face significant challenges.

Talking Points: How Boards Can Prepare for the Volcker Rule from Corporate Board Member

January 7, 2014

From Corporate Board Member

Years after first hearing of a banking ban on proprietary trading, five government agencies (the Board of Governors of the Federal Reserve System, Office of the Comptroller of the Currency, Federal Deposit Insurance Corporation, Securities and Exchange Commission and Commodity Futures Trading Commission) have collaborated to pass the Volcker Rule. Corporate Board Member spoke with Carl Fornaris, Co-Chair, Financial Regulatory and Compliance Practice, Greenberg Traurig, about what boards need to do to prepare for the Volcker Rule, from considering divestitures to creating a new, robust compliance program.

Corporate Board Member: Three years after Dodd-Frank was enacted, banks have banned proprietary trading. How big of a deal is this for banks? Carl Fornaris: For those with trading desks that are active in proprietary trading or sponsoring or having relationships with hedge funds and private equity funds, it’s a very, very big deal. The rule is going to apply to the banks, the so called covered banking entities, and conversely it’ll have an indirect effect on the funds themselves, the private equity funds, hedge funds that have had covered bank entity investors. And so there could be divestitures that might need to take place going forward, and with respect to the banks themselves they’ll have to commit significant resources in terms of setting up an infrastructure to ensure they’re in compliance to the Volcker Rule.

Becoming an FCPA-Savvy Director

January 7, 2014

by Homer E. Moyer, Jr., Miller & Chevalier

How can directors, who are not management, but whose responsibilities extend to their companies’ anti-corruption compliance programs, meaningfully help the companies they serve? One answer is: by becoming FCPA-savvy directors.

In defining how a board member can be a knowledgeable and valuable company resource in managing FCPA issues, the following may be helpful benchmarks.