A universal proxy card, listing both company and activist nominees on a single proxy card, will be mandatory for shareholder meetings with contested director elections occurring after August 31, 2022. This will allow shareholders to “split the ticket,” making their own ad hoc selection of board members. By contrast, under the current proxy rules, holders voting by proxy card (rather than in person) must vote for the entire slate proposed by the company or by the activist.

Continue Reading Key Takeaways from New SEC Universal Proxy Card Rules – Major Changes Make Activism Easier, Cheaper and Probably More Chaotic

As a result of the SEC’s most recent Staff Legal Bulletin[1] (“SLB”), shareholder proposals that focus on a “significant social policy” will not be excludable simply because the policy issue is not, in fact, “significant” to the company receiving the proposal. The SEC has decided it will no longer “focus on the nexus between a policy issue and the company.”  Previously, shareholder proposals that did not raise a “policy issue of significance for the company” were excludable under the “ordinary course of business” exception to Rule 14a-8.[2] The new Staff Legal Bulletin is a departure from past SEC practice, and led the SEC to simultaneously rescind three previous Staff Legal Bulletins on the same subject.

Continue Reading SEC Guidance on Shareholder Proposals – Staff Legal Bulletin 14L – Is This the Way to Regulate Climate Change?

Milbank Litigation & Arbitration partners Antonia M. Apps and Adam Fee, and special counsel Matthew Laroche, have authored “A Guide for Boards and Companies Facing Ransomware Demands.” The article was first published on October 16, 2021 in the Harvard Law School Forum on Corporate Governance, a leading online resource on corporate governance issues. 

Continue Reading Milbank Litigators Publish A Guide for Boards and Companies Considering Whether to Pay a Ransom Following a Cyber Attack in the Harvard Law School Forum on Corporate Governance

On July 28, 2021, Securities and Exchange Commission (“SEC”) Chair Gary Gensler, speaking at a webinar titled “Climate and Global Financial Markets,” set forth certain considerations to guide his staff in developing a rule that will require mandatory disclosure on climate risks by the end of 2021.

Up until now, SEC guidelines on climate disclosure were voluntary, resulting in inconsistent disclosure among public companies. In March 2021, the SEC solicited comments from the public on climate change disclosures and, according to Chair Gensler, more than 550 unique comment letters were submitted, three-quarters of which supported mandatory climate disclosure rules. Chair Gensler believes that “consistent, comparable, decision-useful disclosures” would be beneficial to companies and investors alike.

Continue Reading SEC Chair Outlines Rulemaking Considerations for Potential New Climate-Related Disclosure Requirement

Milbank LLP Litigation & Arbitration partners Antonia M. Apps and Adam Fee, and special counsel Matthew Laroche, who recently rejoined the firm after his tenure as an Assistant United States Attorney in the Southern District of New York, discuss the US Department of Justice’s (DOJ) focus on “Foreign Agent” cases, including the recent indictment of a former advisor to President Trump, in an article published on the Harvard Law School Forum on Corporate Governance, a leading online resource on corporate governance issues.

Continue Reading Milbank Litigators Assess Impact of DOJ’s Focus on “Foreign Agent” Cases in Harvard Law School Forum on Corporate Governance

Milbank LLP Litigation & Arbitration partners Antonia M. Apps and Adam Fee, and special counsel Matthew Laroche, who recently rejoined the firm after his tenure as an Assistant United States Attorney in the Southern District of New York, have authored an article on modern ransomware attacks for the Harvard Law School Forum on Corporate Governance, a leading online resource on corporate governance issues. Continue Reading Milbank Litigators Publish Article on Addressing the Escalating Threat of Ransomware in Harvard Law School Forum on Corporate Governance

On June 15, 2021, within hours of her Senate confirmation as a Federal Trade Commission (FTC) Commissioner, 32-year-old Lina Khan was appointed by President Biden to serve as the youngest FTC Chair in history.

Continue Reading What Does Lina Khan’s Appointment as FTC Chair Mean for Your Business?

SPACs, or “blank check” Special Purpose Acquisition Companies, have surged over the past two years, raising over $75 billion (about half the total US IPO market) last year alone. Recent SEC statements add complexity to accounting and disclosure rules for SPACs and could chill the market. Even so, De-SPAC (the merger of a SPAC into a private company, taking it public) transactions will trigger more M&A and PIPE deals at least through 2022.

Continue Reading SPACs Fuel Hot M&A and IPO Markets – Will SEC Cool the Fire?

On April 15, 2021, U.S. President Joseph Biden signed an executive order (the “Executive Order”) that establishes a new authority for imposition of additional sanctions targeting the Russian Federation in response to Russia’s “continued and growing malign behavior.” Continue Reading U.S. Announces Expanded Sanctions Targeting Russia

At the beginning of the COVID outbreak in the US, The Williams Companies adopted an unusually protective poison pill to thwart any activist campaigns that might arise in the then existing market conditions. Vice Chancellor McCormick struck down the pill in a decision published February 26. The Vice Chancellor’s decision is important in at least two regards. Continue Reading Chancery Court Strikes Down The Williams Companies “Activist Pill”