Posts on
GovernanceDrafting.com
American University Washington College of Law
[About]
● New Year’s Resolutions (12/29/20)
[Boards should publicly and clearly indicate changes in their posted “corporate governance principles”]
● Never Have I Ever: Director[‘s] Cut? (01/05/21)
[Directors should be concerned if their boards install morality clauses in their governance principles]
● Take Notes, But Don’t Keep Notes (01/13/21)
[Boards might well decide to bar directors from taking notes at board meetings, or at least from retaining those notes]
● Quasi-Directors: Considerations and Concerns (01/19/21)
[On the meaning and status of the roles of “advisory director,” “emeritus director,” and “honorary director”]
● Minutiae (01/26/21)
[On the preparation, approval, use, and implications of minutes of board meetings]
● More on Minutes: Privileged and/or Protected (Work) Product? (02/02/21)
[On the confidentiality of minutes of board meetings]
● Don’t (or Do?) Quote Me on This (02/09/21)
[The application of the “Chatham House Rule” to outside meetings attended by a director; and, whether a director can demand to be, or not to be, quoted verbatim and by name in minutes of a board meeting]
● Just How Far Will This Chair Lean Back? (02/16/21)
[The ill-defined nature of the “executive chair” position to which Amazon’s current chairman and CEO Jeff Bezos had announced his upcoming transition]
● Zen and the Art of Corporate Governance (02/23/21)
[The role of advisory councils, and their individual members, in board operations]
● Zen and the Art of Corporate Governance (Part 2) (03/02/21)
[Processes for optimal decision-making by directors and officers during a crisis]
● Zen and the Art of Corporate Governance (Part 3) (03/09/21)
[How and why executives should identify and attempt to overcome their cognitive biases]
● Independence: “Inconceivable!”? (03/16/21)
[Clarifying the distinctions among the different meanings of a director’s status as “independent”]
● While You Were Out (of the Room): 12 Mysteries of (Non-)Executive Sessions (03/23/21)
[On the surprisingly slippery definition of, and the governance complexities of conducting, an “executive session” of a board meeting]
● (Moot?) Points of Order: Robert’s (and Related) Rules for the Boardroom (03/30/21)
[The general inapplicability of these rules to board meetings; and how the board could develop and deploy more appropriate rules of order]
● Robert’s Rules’ (Ir)Relevance to Shareholder Meetings (04/06/21)
[Why they’re not needed, or useful, in this context]
● Directors Dating Directors: Don’t. (10 Reasons) (04/13/21)
[Why it might be appropriate for boards to adopt policies prohibiting their own members from establishing intimate relationships with each other]
● Walking Between Worlds: 14 Steps Towards Giving “Actionable” Advice (04/19/21)
[Practical lessons, for law students and lawyers, from the intelligence community’s preparation of the President’s Daily Brief (PDB)]
● Buddha’s Arrow, Bohr’s Horseshoe, and (Thinking Outside) Black Boxes (04/28/21)
[Considerations for boards relying, or thinking of relying, on “expert” advice from unusual, and unusually opaque, sources]
● In Case of Emergency (Bylaw Provisions): 10 Considerations (05/04/21)
[Practical elements of constructing emergency bylaw provisions]
● The Anti-Bartleby: Twelve Preferred Practices (05/12/21)
[On attempting to avoid both malpractice liability and charges of breaching one’s professional/ethical responsibility, while advising a client who has neither all of the relevant facts nor the time to allow you to conduct full research of the relevant law]
● Poison Pills, Dead Hands, and the Viability of Variable Voting: Six Considerations (05/18/21)
[The mechanics of arranging for directors to vote unequally]
● Can’t Everybody in This Boardroom Read a Financial Statement?: Five Concerns About the “Financial Literacy” Requirement (05/25/21)
[Considerations for clarifying the nature and applicability of the NYSE and NASDAQ’s requirements that some directors be “financially literate”]
● Hunches, Heuristics, and (Decision) Hygiene: Cutting Through “Noise” (06/01/21)
[A review of Noise: A Flaw in Human Judgments (2021), by Daniel Kahneman, Olivier Sibony, and Cass R. Sunstein]
[Concerns about and complications in the role and responsibilities of a director who also serves as counsel to the corporation, and possibly to one or more of its executives personally, and whose firm might also own shares of the company.]
● “ It’s Not Your * “ (Say It Slow, CEO) (06/15/22)
[Discussing whether senior executives who take serious and unnecessary personal physical and/or mental risks, and directors who don’t even attempt to dissuade them, breach their fiduciary duties to the company.]
● On-Boarding, Smooth Sailing, and Suggested Summer Reading (06/22/21)
[Listing categories of documents that new and current directors should make a practice of reviewing; and recommending (mostly non-law-related) books relevant to the board’s work.]
● In the (Board)Room Where It Happens: Unpack(ag)ing Six Issues About Board Observers
(07/06/21) [Addressing contractual considerations to clarify the role of investors’ representatives at board and committee meetings, and otherwise]
● From Boilermakers to Boilerplate: 10 Ins and Outs of Corporate Forum Selection Provisions
(07/15/21) [Discussing Delaware’s caselaw and statutory revision concerning, and the formulation of more effective, forum selection provisions]
● Paying (Only) Your Own Tab: 10 (Re)Considerations of Delaware’s Restrictions on Fee-Shifting Bylaws (07/20/21)
[Discussing when and whether a corporation and its executives can recover their legal fees and expenses from shareholders whose litigation against them was unsuccessful]
● No-Forum Selection: On Mandatory Arbitration Bylaw Provisions (07/30/21)
[Reviewing the palatability and enforceability of such provisions]
● The (Little) Law of “Loyalty Shares” (08/06/21)
[Examining the viability of arrangements awarding long-term shareholders more votes per share]
● NASDAQ: Now Attempting Substantial Diversity, Absent Quotas (08/13/21)
[On the stock exchange’s newly-adopted “comply or explain” rule for diversifying boards of directors]
● Ten Tips Towards Transparency in Posting Core Corporate Documents (08/29/21)
[Suggested practices for corporations adding governance documents to their public Web pages]
● Ten Takeaways From (and For) the Boeing Boardroom (09/13/21)
[Discussing the potential personal liability of Boeing’s directors for failure to monitor corporate operations]