Posts on

Professor Walter A. Effross

American University Washington College of Law


     ● 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]

    ●  (Five) Points of (Purportedly) Personal Privilege; Or, Parsing Potentially Problematic Professional Postures (06/09/22)

            [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]