March 11, 2013

Emerging Trends in Say-on-Pay Disclosure

By Juan E. Monteverde, Ross A. Appel, and Emily C. Komlossy – March 11, 2013

Proponents of Dodd-Frank’s say-on-pay provision envisioned greater corporate transparency and accountability and, as a result, “greater efficiency and social responsiveness.” Randall S. Thomas et al., “Dodd-Frank's Say on Pay: Will It Lead to a Greater Role for Shareholders in Corporate Governance?,”97 Cornell Law Review, 1213, 1228 (2012) [hereinafter Thomas]. Indeed, those who fought for the legislation did so because of the need for greater transparency. See Empowering Shareholders on Executive Compensation: Hearing on H.R. 1257 Before the H. Comm. on Fin. Servs., 110th Cong. 68 (2007). However, a cynical view and a dismissive attitude toward that spirit of transparency have hindered the ability of public shareholders to evaluate the information necessary to determine whether their interests are properly aligned with company executives. In recent months, shareholder challenges to disclosures in proxy statements containing say-on-pay advisory votes have raised questions that will be addressed in this article and in the courts.

Excessive Executive Pay
Executive compensation carries significant importance to shareholders, not only because of the actual expenses incurred from executive salaries, but also because of potential inefficient pay structures that may distort executives’ incentives. Indeed, the somewhat unfathomable rise in executive pay during the previous three decades has been the cause of considerable public criticism. Alarming statistics demonstrate that the divide has only widened between executives and everyday workers during this period, which has led to substantial debate about executive-pay practices. Shareholders and commentators voiced their concerns about excessive executive compensation following the corporate scandals involving companies such as Enron and WorldCom early in the new millennium and again following the 2007–2008 financial crisis. Those concerns, at times mixed with outrage, are fueled by the sentiment of income inequality—executive compensation has exploded, while the compensation of average workers has lagged well behind. A recent AFL-CIO analysis of CEO pay across a broad sample of S&P 500 firms demonstrates that the average CEO earned 380 times more than the typical U.S. worker. Thirty years earlier, that multiple was 42. Leslie Kwoh, “Firms Resist New Pay-Equity Rules,” Wall Street Journal, June 26, 2012.

From 1970 to 1999, the average annual real compensation of the top 100 CEOs increased by over 2,800 percent, while the average annual salary in the United States increased by approximately 10 percent. See Paul Krugman, “For Richer,” New York Times, Oct. 20, 2002. Additionally, 97 percent of companies paid their executives bonuses in 2011, regardless of whether company performance fell below the median of industry peers. Nell Minow, “Executive Decisions: Why CEO Pay Spun Out of Control,” The New Republic, Feb. 8, 2012. Executive compensation not only has increased at an incredibly disproportionate rate from the average worker’s salary, but CEO compensation increased more than 725 percent between 1978 and 2011, nearly two times greater than stock market growth over the same period. See Lawrence Mishel and Natalie Sabadish, CEO Pay and the Top 1%: How Executive Compensation and Financial-Sector Pay Have Fueled Income Inequality, May 2, 2012, Economic Policy Institute.

Enter Dodd-Frank’s Say-on-Pay
It was against this backdrop that Dodd-Frank’s say-on-pay provision became a necessary means to create transparency regarding executive compensation. Representative Barney Frank, former chairman of the House Financial Services Committee, introduced a say-on-pay bill to the House of Representatives in February 2006, to address excessive executive pay by providing shareholders of U.S. companies the ability to cast an advisory vote on compensation. Challie Dunn and Carol Bowie, Evaluating U.S. Company Management Say on Pay Proposals: Four Steps for Investors, Mar. 16, 2009, RiskMetrics Group 5. Meanwhile, also in 2006, the American Federation of State, County, and Municipal Employees (AFSCME) sponsored eight shareholder proposals calling for boards to implement a policy providing shareholders with an advisory vote on executive compensation. Id. at 4. By 2008, some companies began voluntarily submitting their executive compensation to an advisory shareholder vote. Thomas at 1218. One year later, say-on-pay proposals constituted the largest category of shareholder-sponsored proposals. Id. at 1217–18.

Beginning in 2009, Congress required say-on-pay votes for all financial firms receiving Troubled Asset Relief Program (TARP) funds. All the while, advocates of a say-on-pay vote anticipated that providing shareholders with an advisory vote on executive compensation would stop executive pay from spiraling out of control. Id. at 1232. AFSCME, for example, expected that a say-on-pay vote might reduce excesses in executive pay. Harvard law professor Lucian Bebchuk projected that say-on-pay votes would make directors more attentive to shareholder views and could potentially deter some egregious compensation arrangements. See id. at 1232–33. Members of Congress similarly anticipated the potential positives that could flow from these votes, such as transparency, an ability to put a halt to pay structures that encourage excessive risk-taking and the potential alignment of pay with financial performance. Id. at 1235. With this backdrop of seeking transparency and accountability, the say-on-pay requirement was extended to all public companies when Congress passed Dodd-Frank. Id. at 1218.

While legislation concerning executive pay continues to evolve in the United States and around the world, the United Kingdom recently unveiled legislation that would give investors a binding vote on executive pay. It remains to be seen whether a binding vote on executive pay represents the next step taken in the United States to curb excessive executive pay.

Evolution of Disclosure Requirements
Shareholders have started to challenge disclosures made in connection with say-on-pay votes in the proxy statements of certain public companies as not disclosing sufficient material information on which shareholders can properly decide how to vote on executive compensation. Such lawsuits, filed in state court, generally allege that company directors breached fiduciary duties, particularly the duty of candor, as shareholders have not been apprised of all material information that was reviewed and relied on by the board of directors upon making their recommendations that shareholders approve executive pay. While some defense lawyers have argued, incorrectly, that these lawsuits belong in federal courts, the requirement that directors disclose all material information in connection with shareholder communications is well recognized in Delaware. Delaware is home to a majority of the United States’ publicly traded companies and 63 percent of the country’s Fortune 500 companies. Jeffrey W. Bullock, Delaware Division of Corporations, 2011 Annual Report, p. 1. Delaware has thus played, and continues to play, a central role in setting corporate governance rules and standards for the country’s publicly traded companies.

In 1977, the Supreme Court of Delaware decided Lynch v. Vickers Energy Corp., 383 A.2d 278 (Del. 1977), described by the court as “[t]he genesis of Delaware law regarding disclosure obligations.” Arnold v. Soc’y for Sav. Bancorp, 650 A.2d 1270, 1276 (Del. 1994). There, in the context of a self-dealing transaction, the court recognized the fiduciary duty of “complete candor,” of “complete frankness” under which “[c]ompleteness, not adequacy, is both the norm and the mandate[.]” Lynch, 383 A.2d at 281. This duty, which is actually simply “the application in a specific context of the board’s fiduciary duties of care, good faith and loyalty,” (See Malpiede v. Townson, 780 A.2d 1075, 1086 (Del. 2001)) has evolved over time and has been applied in many contexts. The importance of complete disclosure of material information is easy to comprehend in the context of a merger, a context in which it is often applied. The Delaware Court of Chancery explained this importance in Maric Capital Master Fund, Ltd. v. Plato Learning, Inc., 11 A.3d 1175, 1178 (Del. Ch. 2010), stating that the “question that . . . investors should be asking in determining whether to vote for the cash merger is clear: is the price being offered now fair compensation for the benefits I will receive as a stockholder from the future expected cash flows of the corporation if the corporation remains as a going concern?” Indeed, as Vice Chancellor Laster stated, “[t]his is it. This is the end. This is the only opportunity where you can depend upon your fiduciaries to maximize your share of that value.” Steinhardt v. Howard-Anderson, C.A. No. 5878-VCL (Del. Ch. Jan. 24, 2011) (Preliminary Injunction Hearing Transcript at *6).

However, Delaware courts have also recognized the importance of shareholders’ right to vote on issues of corporate governance. Mainiero v. Microbyx Corp., 699 A.2d 320, 324 (Del. Ch. 1996). The Supreme Court of Delaware has held that “the stockholders control their own destiny” and that “[t]his is the highest and best form of corporate democracy.” Williams v. Geier, 671 A.2d 1368, 1381 (Del. 1996). To downplay the significance of a shareholder’s need for full disclosure simply because it is outside of the context of a merger not only unnecessarily diminishes the role of a shareholder, but it also mischaracterizes, or at least attempts to avoid, legal precedent. Delaware courts have held time and again that the duty of full and fair disclosure extends to material information even when no shareholder action is requested. Ciro, Inc. v. Gold, 816 F. Supp. 253, 266 (D. Del. 1993); Marhart, Inc. v. CalMat Co., No. 11,820, 1992 Del. Ch. LEXIS 85 (Del. Ch. Apr. 22, 1992); Malone,722 A.2d at 10. Delaware follows the federal standard for materiality. If there is a “substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the ‘total mix’ of information made available,” it is material and must be disclosed. Arnold, 650 A.2d at 1277. A plaintiff need not show that disclosure of the information would change their vote. David P. Simonetti Rollover IRA v. Margolis, No. 3694-VCN, 2008 Del. Ch. LEXIS 78, at *19 (Del. Ch. June 27, 2008). Rather, a fact is material and must be disclosed “if there is a substantial likelihood that a reasonable stockholder would consider it important in deciding how to vote.” Skeen v. Jo-Ann Stores, Inc., 750 A.2d 1170, 1172 (Del. 2000). In Malone v. Brincat, the Supreme Court of Delaware held that “[w]henever directors communicate publicly or directly with shareholders about the corporation’s affairs, with or without a request for shareholder action, directors have a fiduciary duty to shareholders to exercise due care, good faith and loyalty.” Malone, 722 A.2d at 10. Thus, courts have recognized that, under state law, directors owe a fiduciary duty of honesty or complete candor in their communications to shareholders—including proxy statement communication, and therefore communications regarding the say-on-pay advisory vote— regardless of whether shareholder action is required. See Knee v. Brocade Comm’ns Sys., Inc., No. 1-12-CV-220249, slip op. at 2 (Cal. Super. Ct. Santa Clara Cnty. Apr. 10, 2012) (Kleinberg, J.) (enjoining the 2012 shareholder vote because certain information relating to projected executive compensation (as related to an equity plan share increase that had a potential dilutive effect on shareholders) was not properly disclosed in the proxy statement).

A Federal Question?
Some defense firms, intent to rely on their belief that cases challenging the adequacy of proxy statement disclosures regarding say-on-pay are preempted by federal law, have removed these cases to federal court. Whether used as a tactic to stall in the face of an impending shareholder vote or out of a good faith belief that Delaware law does not apply in such cases, removal has not been successful. Three district court judges, two in the Northern District of California and one in the Southern District of New York, have had the opportunity to rule on plaintiffs’ subsequent remand motions following removal, and all three have remanded the cases back to state court, recognizing that the claims are grounded in common law, not in federal law as defendants argue. See Hutt v. Martha Stewart Living Omnimedia, Inc., No. 1-12-cv-03414 (S.D.N.Y. May 10, 2012); Rice v. Ultratech, Inc., No. 3-12-cv-03290 (N.D. Cal. July 2, 2011) (granting motion to remand); Boxer v. Accuray Inc., No. 4-12-cv-05722 (N.D. Cal. Nov. 29, 2012) (remanding action). In both Hutt and Rice, the federal courts—in New York and California, respectively—held that they did not have subject-matter jurisdiction over the actions. Hutt v. Martha Stewart Living Omnimedia, Inc., No. 1-12-cv-03414, at 1-2; Rice v. Ultratech, Inc., No. 3-12-cv-03290, at 1. In Boxer, the court’s order remanding the action noted that defendants made no showing that a disclosure violation of the Dodd-Frank Act in a proxy statement was a necessary prerequisite to a finding of materiality or a breach of fiduciary duty. Boxer v. Accuray Inc., No. 4-12-cv-05722, at 5. The court held “[t]o the contrary, even if the information omitted from a proxy statement is not required under the Say on Pay provisions, there certainly remains the possibility that such information, if disclosed, could have an impact on a shareholder’s voting decision.” Id.

Quite simply, directors are subject to the fiduciary duties of due care, good faith, and loyalty. The court in Malone further reasoned that this triad of fiduciary duties “is the constant compass by which all director actions for the corporation and interactions with its shareholders must be guided.” Malone, 722 A.2d at 10. Thus, the plaintiffs’ claims are governed by the notion that directors have an ever-present fiduciary duty to shareholders to deal with their stockholders honestly about the company’s corporate affairs, regardless of the context of the vote. See id. Accordingly, federal laws are not at issue regarding state law claims alleging breach of fiduciary duty in say-on-pay disclosure claims.


The Data Reviewed
Corporate boards of directors generally review—and rely on—a host of detailed, material analyses, often conducted by compensation consultants, prior to recommending shareholder approval of executive compensation. These analyses often include, for example, benchmarking analyses, competitive pay analyses, and performance analyses that compare a given company’s executive pay and performance metrics to its peer companies. Such analyses allow shareholders to determine if the company’s executive pay and executive pay practices fell in line with its peer companies and if the company is following the benchmarking practices that it purports to use in setting executive pay.

It has been hypothesized that peer benchmarking is one of the main forces behind the ever-rising executive salaries. See, e.g., Charles M. Elson & Craig K. Ferrere, “Executive Superstars, Peer Groups and Over-Compensation—Cause, Effect and Solution,” Journal of Corporation Law (forthcoming Spring 2013). Some say that significant competition to attract and retain executive talent exists. This competition, whether real or perceived, ultimately has the effect of inefficient benchmarking, with firms seeking to pay executives more and more while corporate performance remains stagnant. This “leapfrog effect” is the result of companies targeting compensation levels at a certain percentile of their peer companies’ executive pay, which inevitably leads to overpayment. See id. The leapfrog effect is the resultant carry-through of one company’s overpayment as it works its way through the market and simply leads to companies then offering even higher compensation to executives to outdo the first company. This fact alone necessitates the disclosure of peer benchmarking analyses so that shareholders can assess and determine the efficacy of the given analyses. Of course, every company is different, and directors will review and rely on different analyses prior to recommending shareholder approval of executive compensation. Thus, the information that must be disclosed can vary.

Should Shareholders Perform Their Own Analyses?
A common argument raised in defense of not providing disclosure in proxy statements has been that information and data contained in the benchmarking analyses are publicly disclosed in peer group proxy statements; therefore, companies have no obligation to disclose benchmarking data. See, e.g., Mancuso v. The Clorox Company, et al., Case No. RG12651653, Defendants’ Memorandum of Points and Authorities in Opposition to Plaintiff’s Motion for a Preliminary Injunction, at 9 (Alameda County Super. Ct. Nov. 7, 2012). However, legal precedent informs that shareholders need not piece together information from various proxy statements and compile the data themselves. In In re TWA, Inc. Shareholders Litig., 1988 Del. Ch. LEXIS 139 (Del. Ch. Oct. 21, 1988), plaintiff shareholders alleged that a number of material facts were not disclosed to shareholders in the proxy solicitation materials seeking shareholder approval of a pending merger. In re TWA, Inc. Shareholders Litig., 1988 Del. Ch. LEXIS 139, *3-4. Among the arguments raised by defendants was that (1) the information from which the nondisclosed figures were deduced was disclosed piecemeal in different portions of the proxy statement (even though not in the sought-after format), and (2) that the financial advisors’ analyses were disclosed in other publicly available SEC filings. Id. at *29. The court was underwhelmed by defendants’ arguments, holding “that a failure to disclose [the information] is [not] necessarily cured by reason that it could be uncovered by an energetic shareholder by reading an SEC filing.” Id. While the court did not issue a preliminary injunction in the case, finding instead that another effective remedy existed, it nonetheless held that defendants’ excuses for failing to disclose certain information were not sufficient.

The holding in TWA is no outlier. In Turner v. Bernstein, 776 A.2d 530 (Del. Ch. 2000), plaintiff shareholders similarly alleged that company directors breached their fiduciary duties by failing to provide stockholders with information material to the decision of whether to approve a merger. Turner, 776 A.2d at 531. The board did not give shareholders any current financial information or explain why the merger was in their best interests. Instead, it told stockholders that they could call the company with any questions. Id. at 532. The court held that shareholders are not required to “ask a series of detailed questions to elicit the material fact[s].” Id. at 544.

More recently, in St. Louis Police Ret. Sys. v. Severson, 2012 U.S. Dist. LEXIS 152392 (N.D. Cal. Oct. 23, 2012), the plaintiff alleged that the proxy statement issued in advance of the annual shareholder meeting was misleading because it failed to disclose all material information relating to an amendment of an equity incentive plan. St. Louis Police Ret. Sys. v. Severson, 2012 U.S. Dist. LEXIS 152392, *1-2. The proxy statement did not include certain information about the incentive plan that had been included in a Form 8-K filed with the SEC approximately one month before the filing of the proxy statement; defendants argued that the information was already available to shareholders and did not need to be repeated. Id. at *4–5, 8. The court, granting an injunction, held that information included in an earlier Form 8-K was not “incorporated by reference” in the 2012 proxy statement and was not readily available to shareholders simply because it was filed with the SEC. Id. at *7-16. Similarly, where defendants in say-on-pay disclosure cases point to the fact that portions of the benchmarking data they review are contained in each of their peers’ SEC filings, that defense is unlikely to succeed. See Shaev v. Saper, 320 F.3d 373, 381 (3d Cir. 2003) (“Material not included in the proxy statement is generally not charged to the knowledge of the stockholder.”). By not disclosing information and relying on the fact that snippets of the information are disclosed in other SEC filings in piecemeal fashion essentially requires that shareholders ask a series of detailed questions and seek out a number of other SEC filings to find the sought-after material facts.

There is a counterargument, often raised, that additional disclosure may provide too much information. In Solomon v. Armstrong, 747 A.2d 1098, 1130 (Del. Ch. 1999), the court held that directors should not be “forced to bury the shareholders in an avalanche of trivial information” or “shareholder solicitations would become so detailed and voluminous that they will no longer serve their purpose.” Id. The fact that a given proxy statement may already contain 80 pages is no argument for withholding material information. It is the quality of the information that is important. Material information should be disclosed (and in fact, must be disclosed) at the expense of trivial information.

Advisory Nature of Say-on-Pay Vote Does Not Alter Its Significance
Defense counsel, in recent published work, have generally argued that a fair summary of the materials relied on prior to recommending that shareholders approve executive compensation is unnecessary when considered in the context of an advisory vote. Such an argument may rely on the notion that the vote is merely advisory and will not require any actual action to be taken in response to a negative vote, therefore rendering the resulting “say” insignificant and hollow. Such a dismissive attitude, however, would ultimately render the purpose of the vote meaningless and eliminate the need for shareholders’ informed say on executive pay.

Most companies generally declare within their proxy statements that while the say-on-pay vote is indeed not binding, the compensation committee of the board and the board value shareholders’ opinions and will consider the outcome of the say-on-pay vote when establishing pay practices and making future compensation decisions. For example, the proxy statement filed by The Dow Chemical Company in March 2012, states that “[t]his advisory resolution is non-binding on the Board of Directors” and “[a]lthough non-binding, the Board and the Committee will review and carefully consider the voting results when evaluating our executive compensation program.” However, without disclosure of all material information to shareholders, the say-on-pay vote can potentially have the unintended effect of establishing and/or entrenching inefficient pay practices. Indeed, companies are currently required to disclose how they considered the results of the prior-year’s say-on-pay vote in determining compensation policies and decisions and how the compensation policies and decisions were ultimately affected. This underlies the significance of the Say-on-pay vote and demonstrates that genuine changes to corporate governance may result from the vote. In order to be meaningful, however, it is necessary to ensure that shareholders are not relying on incomplete information when voicing their opinions on executive compensation.

Others have pointed to the dismissal of cases that were brought post-vote as derivative cases regarding say-on-pay as an indication that cases regarding say-on-pay proxy disclosures will suffer a similar fate. The cases and the context are quite different. For example, Delaware courts have stated a preference for having proxy-related disclosure claims brought prior to the shareholder vote because once the vote has occurred on incomplete information, further disclosure may be of no use. Globis Partners, L.P. v. Plumtree Software, Inc., No. 1577-VCP, 2007 Del. Ch. LEXIS 169, at *37–38 (Del. Ch. Nov. 30, 2007). The post-vote cases have generally challenged the efficacy of a given company’s executive compensation practices, not the pre-vote disclosures made to shareholders. These cases have sought to cause corporate change regarding executive pay practices. See Assad v. Hart, No. 11cv2269 WQH (BGS), 2012 U.S. Dist. LEXIS 2366, at *5–6 (S.D. Cal. Jan. 6, 2012) (Plaintiffs alleged that defendants breached their fiduciary duties by failing to amend or alter executive compensation in connection with a negative say-on-pay vote). It simply does not follow that because reform cannot be forced upon a board following an advisory vote, that recognized fiduciary duties can simply be ignored and that shareholders need not be provided all material information in a proxy statement, as is always the requirement. Quite simply, the advisory nature of the vote and the inability to force change upon a board does not alter the legal requirements that proxy disclosures include all material information.

Are the Claims Derivative in Nature?
Quite simply, no. Defendants have had occasion to argue that allegations of an uninformed vote on executive compensation are derivative claims and cannot be brought directly by shareholders. However, for this to be accurate, the alleged claims of failure to disclose all information would need to be portrayed instead as claims of excessive executive pay that causes corporate waste; allegations that are never present in these cases. Indeed, quite fundamentally, without a fully-informed vote based upon all material information, shareholders cannot even properly determine whether any such claims would be viable.
The seminal case of Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031 (Del. 2004) provides a two-step test to determine the issue of whether a claim is derivative or direct in nature. Tooley, 845 A.2d at 1033. The first prong of the two-part test identifies who suffered the harm—the corporation or its shareholders. Id. Based upon this prong, there should be no question that it is company shareholders who suffer the alleged harm based on allegations that they are unable to cast an informed vote.

Similarly, on the second prong, which seeks to identify “who would receive the benefit of any recovery or other remedy . . . ?”, (Id.) the answer is again quite clear. The benefit of further disclosure inures to the shareholders, not the company, with a view towards ensuring that shareholders are able to cast informed votes regarding the say-on-pay proposal. The remedy—disclosure of material information—allows for shareholders to have their fully informed vote. Indeed, the Delaware courts have repeatedly held that disclosure allegations relating to proxy materials are direct claims. In In re J.P. Morgan Chase & Co. S'holder Litig., 906 A.2d 766, (Del. 2006), shareholder plaintiffs alleged that J.P. Morgan Chase & Co. issued a proxy statement that omitted material information in connection with a merger. In re J.P. Morgan Chase & Co. S’holder Litig., 906 A.2d at 768. Upon considering whether the proxy disclosure claim was direct, the court held that “where it is claimed that a duty of disclosure violation impaired the stockholders’ right to cast an informed vote, that claim is direct.” Id. at 772. Moreover, in In re Tyson Foods, Inc., 919 A.2d 563 (Del. Ch. 2007), plaintiffs challenged the disclosures regarding the directors up for election made in a 2004 proxy statement. In re Tyson Foods, Inc., 919 A.2d at 580. The court there held that “[w]here a shareholder has been denied one of the most critical rights he or she possesses—the right to a fully informed vote—the harm suffered is almost always an individual, not corporate, harm.” Id. at 601. The court expounded, noting that “[w]ithholding information from shareholders violates their rights even if it leads to them making the ‘right,’ and even highly profitable, result.” Id. at 602.

Recent Backlash
Recent articles addressing the say-on-pay disclosure litigation have generally challenged the legitimacy of this type of litigation with a complete lack of context. For example, a recent article by David F. Larcker, Stanford Law Professor, and Brian Tayan, a researcher with Stanford’s Center for Leadership Development and Research, states that one law firm has filed 33 say-on-pay disclosure lawsuits in 2012. David F. Larcker & Brian Tayan, Shareholder Lawsuits: Where Is the Line Between Legitimate and Frivolous?, Stanford Closer Look Series, Nov. 27, 2012. Their research, which they attach to their article, contradicts the assertion, showing that only half (17 of 33) that number of lawsuits has been filed. Id. They also assert that one lawsuit in particular against Microsoft called for the disclosure of “all internal memos regarding discussions about executive compensation[,]” an assertion that has no basis in reality. See id. Such articles do not allow for an open and honest public discourse.

Perhaps in an attempt to sway public opinion, some make mention that while some lawsuits have provided additional disclosure upon which shareholders can base an informed say-on-pay vote, shareholders have not received any cash as a result of the litigation. Such a suggestion ignores the claims asserted in the litigation and the nature of the relief sought. These lawsuits seek the substantial benefit of achieving the disclosure of all material information so that shareholders can have their informed vote on executive compensation. Monetary damages cannot vindicate a shareholder’s right to cast an informed vote. The Delaware Court of Chancery has made clear its preference for supplemental disclosures to be made in advance of a vote because such a remedy “gives stockholders the choice to think for themselves on full information, thereby vindicating their rights as stockholders to make important voting and remedial decisions based on their own economic self-interest.” See In re Netsmart Techs., Inc. S’holders Litig., 924 A.2d 171, 208 (Del. Ch. 2007). Indeed, Delaware courts have also recognized that the lack of monetary relief does not detract from the significance of non-monetary relief received in cases that achieve additional disclosure. See San Antonio Fire & Police Pension Fund v. Bradbury, C.A. No. 4446-VCN, 2010 Del. Ch. LEXIS 218, at *50 (Del. Ch. Oct. 28, 2010). It is thus disingenuous to suggest that shareholders are not benefited by additional disclosure of material information. While such lawsuits may not provide an immediate inflow of cash to shareholders, an informed vote on say-on-pay may very well have the effect of better aligning shareholder-executive interests, improving corporate governance, reducing agency costs, and leading to long-term increased value to the company and its shareholders.

Conclusion
The current dismissive attitude regarding the say-on-pay vote due to its advisory nature essentially pilfers from shareholders the ability to signal their content or discontent with executive pay practices, thus making the vote far less likely to lead to potentially necessary and constructive pay reforms. Indeed, the Delaware Court of Chancery has held that “[t]he strengthening of shareholder interest in monitoring the activities of officers and directors only further emphasizes the importance of the shareholder franchise as the bedrock foundation upon which the legitimacy of directorial power rests.” State of Wisconsin Inv. Bd. v. Peerless Sys. Corp., No. 17637, 2000 Del. Ch. LEXIS 170 (Del. Ch. Dec. 4, 2000). Thus, shareholders must not be deprived of their right to cast an informed vote on a company’s executive compensation.

The peripheral legal attacks described in this article (claims that the vote is non-binding and thus related information is immaterial, federal law preempts the allegations and that portions of the information are publicly disclosed) are likely nothing more than legal red herrings, unlikely to affect the outcome of a given case. In the end, the relevant legal question will be whether or not the information is material.

Source: ABA

 
 
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