Notable Developments as of 2018.09.04


2018.09.04  Director Compensation: $300K Price-tag to Settle.  It cost OvaSciences more than $300,000 of attorneys' fees to settle shareholder derivative litigation alleging that its directors paid themselves excessive compensation. The company also had to agree . . .  continued at Director Compensation Litigation


2018.08.28  Defusing the Litigation Risks relating to Executive Compensation Plans and Awards.  Here is a link to a webinar during which Wagner Law partners David Gabor (employment) and Mark Poerio (executive compensation) teamed up to discuss a variety of possible changes that employers could readily make to their stock plans and awards, and other benefit plans, in order to reduce their litigation risks as well as position to better enforce loyalty-related covenants such as non-competes, non-solicits, and trade secret protections. For a copy of the PowerPoint, just send Mark an email.  For further info, see Executive Compensation Litigation.


2018.08.21  IRS 162(m) Guidance Brings Little Relief - Headache re Negative Discretion. Today, the IRS released Notice 2018-68, which addresses questions raised by changes to Code Section 162(m) as part of the Tax Cuts and Jobs Act of 2017. For a link to the notice and further information, including its provisions relating to "negative discretion," follow this link.


2018.08.04  Deferred Compensation Data - and Its Implications.  Regarding how employers have responded to 2017's tax reform act, the Plan Sponsor Council of America has issued a press release that presents intriguing survey data.  Several are reproduced, with insights drawn from them, at Deferred Compensation.


2018.08.01  Investment Expert for Retirement Plans; Immigration Accolades.  In widely-reported coverage of litigation against NYU, the expert witness testimony by Wagner Law founder Marcia Wagner was found to be "consistent, reasonable, logical and ultimately, highly credible.” Law360 accordingly headlined its article as follows:  "NYU's Victory In ERISA Battle Hinged On Expert Witnesses." A day earlier, the Brazilian Times featured Melissa McNamee in its article titled  "Wagner Law Group is the solution when it comes to immigration." For advice about immigration matters or best fiduciary practices for 401(k) and other ERISA plans, just send an  email.


2018.07.12   Executive Misconduct - Clawback and Other Remedies.  Law360 just released  this article about an oil company that is pursuing just the kind of remedies that David Gabor and I discussed during our August 28th webinar that is referenced above. See generally, Checklist: Precautions against Benefit Plan Litigation.


2018.07.11   Diversification from Employer Stock: Not Always a Bad Practice.  It is generally considered a best practice to assure that executives hold significant equity stakes in employer stock, in order to align their personal financial interests with those of shareholders. Nevertheless, too much employer stock could backfire under certain situations that make employer-sponsored diversification programs sensible to consider . . . continued at  Diversification from Employer Stock (with links to recent articles on this topic).  


2018.06.05  Moving the Bonus Plan Goalposts - Be Smart or Be Sued.  Whenever a company announces performance goals that apply to cash bonus, equity award, or vesting conditions, there is some risk that affected employees will later question the end-of-period determinations. Well-drafted plans and programs include significant employer protections. But some defects can haunt, such as the failure to address the impact of a future merger or acquisition, or the omission of a maximum limit.  Panera Bread tried to recover from the latter, but lost in the 8th Circuit because . . . continued at Litigation - Bonuses


2018.04.07  Voluntary Severance Plan - Fidelity's Experience. What happens when 3,000 employees over age 55 receive a buy-out offer because they have more than 10 years of experience?  Fidelity made that offer, and its results do not surprise because . . .  continued at  Voluntary Severance Plans, with a discussion of how those buy-out plans can work - and backfire.​​


2018.02.07  "The Front Line in the War Against Sexual Harassment" explains why "For employers who agree that bad acts should have bad consequences, 2018 will be a good year in which to revisit what is placed at risk, and how that risk will materialize."  Further discussed at  Dismissals for Cause.

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Notable Updates for 2018:

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   Executive Compensation   Loyalty  Business Issues

   Forms of Pay / Equity Awards

   Governance

   Securities / Disclosure

   Survey Data

​   Tax   

   Tax-exempt Orgs

   Vesting and Forfeitures

   Restrictive Covenants  (state-by-state guide)

   Clawbacks

   Litigation by Executives  (ERISA litigation)

   Shareholder Litigation  (vs corp directors)

   Accounting Rules

   Bankruptcy

   International

   M&A Transactions

   Pension Liabilities

​   ROBS


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