Three Considerations For Drafting A Code of Business Conduct

Although the Securities and Exchange Commission does not require that a company adopt a code of business conduct and ethics, I would be very surprised to hear of an SEC reporting company that has not adopted such a code.  Item 406 of Regulation S-K requires a reporting company to disclose whether it has “adopted a code of ethics

Are Alternate Committee Members “Then Serving”?

A number of amendments to Delaware’s General Corporation Law took effect at the beginning of this month.  One of these changes was to establish a default quorum requirement for meetings of committees of corporate boards of directors.  New Section 141(c)(4) provides: A majority of the directors then serving on a committee of the board of

Chevron Deference In California

In mid July, the House of Representatives passed the Separation of Powers Restoration Act of 2016, H.R. 4768 (SOPRA).  If enacted, the SOPRA would amend the federal Administrative Procedure Act to require a reviewing court to decide “de novo all relevant questions of law, including the interpretation of constitutional and  statutory provisions, and rules made by agencies”.   The

What, If Anything, Impedes The SEC’s Whistleblower Rule?

As I suspected, law firms are churning out memoranda on the SEC’s recent enforcement actions involving alleged impediments to whistleblowers. While accurately, summarizing these actions, I’m not sure that some of the authors have adequately captured the breadth of the rule and the SEC’s even broader reading of the rule. First, the rule itself: (a)

Who Signs The Bylaws?

I am occasionally asked who should sign the bylaws.  The question presumes that bylaws must be signed.  Although the California General Corporation Law requires that the original or a copy of the bylaws be available to shareholders (Section 213), it does not require that corporate bylaws be signed.  Indeed, it could be argued that the

Ouch! Proxy Statement Argues That Resolving Dispute In California Court Was “Costly And Time Consuming”

As Ralph Waldo Emerson once famously told Oliver Wendell Holmes, Jr.: ““Holmes, when you strike at a king, you must kill him.”  For the full story, see The Corporations Code Can Make Suing Your Former Employees Costly.  I was reminded of this advice when reading the following in the proxy statement of a California-based company in favor

How Much Is A Whistleblower Waiver Really Worth?

The Securities and Exchange Commission is aggressively interpreting and enforcing its rule against impeding whistleblowers.  Rule 21F-17(a) provides: No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement (other than agreements dealing with

Which Code Applies When A Stock Certificate Has Been Lost, Destroyed Or Wrongfully Taken?

Capture

Earlier this week, I wrote about Judge Edward M. Chen’s ruling in Sender v. Franklin Res., Inc., 2015 U.S. Dist. LEXIS 171453, 3-4 (N.D. Cal. Dec. 22, 2015).  Judge Chen applied California Corporations Code Section 419 to a Delaware corporation on the basis that the replacement of a lost or stolen stock certificate was not governed

A Whistleblower Isn’t Impeded By The Want Of A Reward

Quite some time ago, I fabulated that airline delays might constitute a violation of Securities and Exchange Commission Rule 21F-17.  That rule provides that no person “may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation”.  My theory, albeit fanciful, was that a delayed

Replacement Of Lost Stock Certificate Is Not An Internal Affair, But So What?

U.S. District Court Judge Edward M. Chen recently ruled that a stockholder could maintain an action under California Corporations Code Section 419 for replacement of a lost, stolen or destroyed certificate.  As just described, the ruling shouldn’t be a surprise.  Section 419 provides that if “a corporation refuses to issue a new share certificate or other certificate in