Harvard Law School Forum on Corporate Governance Publishes “Open Letter to Directors and Activists Regarding Amendments to Advance Notice Bylaws” Client Alert

Harvard Law School Forum on Corporate Governance, the top online resource for discourse on corporate governance, recently published an article authored by Co-Chair of the firm’s Shareholder Activism practice Andrew Freedman as well as Shareholder Activism partner Ron Berenblat and associate Dorothy Sluszka entitled “Open Letter to Directors and Activists Regarding Amendments to Advance Notice Bylaws.” The article, based on a recent Olshan client alert, focuses on the SEC’s newly adopted rules on “universal proxy cards” for contested director elections and the public companies that have amended their advance notice bylaws, conforming the timing and notification requirements of their shareholder nomination procedures to those of the new universal proxy card rules. “Unfortunately, however,” they write, “many of these bylaw amendments we are seeing go well beyond the provisions that would be needed to address the new universal proxy regime. Rather, company counsel have been using this opportunity to expand their advance notice bylaws with an array of so-called ‘disclosure enhancements’ that make the process for a shareholder to nominate directors unnecessarily cumbersome and costly.”