Executive Compensation and Employee Benefits

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Qualified Plan Limitations Updated for 2013

The IRS recently released the inflation-adjusted limitations applicable to tax-qualified retirement plans for 2013. As in 2012, many of these limits are again increasing.

Client Alert | October 29, 2012

U.S. Agencies Release Guidance on Shared Responsibility Employer Penalties and Waiting Period Limitations under the Affordable Care Act

Recently, the Internal Revenue Service released two notices, Notice 2012-58 and Notice 2012-59, regarding the employer shared-responsibility penalties and the 90-day waiting period limitation of the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the "Act").

Client Alert | October 25, 2012

NYSE and NASDAQ Stock Exchanges Propose Compensation Committee and Compensation Adviser Independence Rules

The New York Stock Exchange ("NYSE") and NASDAQ Stock Market ("NASDAQ") released their proposed compensation committee and compensation adviser independence listing standards on September 25, 2012.

Client Alert | October 24, 2012

ISS Releases Draft 2013 Proxy Voting Policies

On October 15, 2012, Institutional Shareholder Services ("ISS"), a leading proxy advisory firm, issued for comment certain proposed 2013 proxy voting policy changes.

Client Alert | October 16, 2012

SEC Staff Issues Guidance on Shareholder Proposals

On October 16, 2012, the staff of the Securities and Exchange Commission (the "Staff") issued Staff Legal Bulletin No. 14G (Oct.

Client Alert | October 16, 2012

California Court of Appeal Decision Highlights Importance of Tying Non-Competes to Sale of Business

On August 24, 2012, in the case of Fillpoint, LLC v. Maas, a California appellate court issued an opinion reinforcing both California's general public policy against covenants not to compete and the important exceptions to that rule.  While California Business and Professions Code § 16600 generally declares void any covenant that restrains an individual from engaging in a lawful profession, trade or business, § 16601 provides an exception to this rule for covenants executed in connection with the sale of a business.  The Fillpoint case instructs that, to qualify for § 16601's sale-of-business exception, employers must thoroughly document and tether any non-compete covenant to the sale of a business.Fillpoint: Factual Background.In Fillpoint, Michael Maas worked

Client Alert | September 20, 2012

December 31, 2012 Deadline for Amending Certain Severance and Other Arrangements for Section 409A Compliance

Employers Should Review Plans and Agreements in Which Payment is Conditioned Upon Signing a Release or Agreement to Comply with Restrictive Covenants

Client Alert | September 14, 2012

IRS Releases Final Regulations on Deductions for Personal Use of Business Aircraft

Recently, the Internal Revenue Service ("IRS") published final regulations concerning the deductibility of the use of business aircraft for personal purposes.

Client Alert | September 12, 2012

Transportation/Student Loan Bill Includes Significant Pension Funding Relief and PBGC Premium Increases

On July 6, 2012, President Obama signed the Moving Ahead for Progress in the 21st Century Act, which primarily addresses transportation funding and student loan interest rates.  The Act also provides significant short-term pension funding relief to sponsors of defined benefit pension plans, increases Pension Benefit Guaranty Corporation (PBGC) premiums for single and multiemployer plans, and extends and liberalizes the ability to use assets from certain overfunded pension plans to provide retiree welfare benefits.Pension Funding ReliefIn general, ERISA and the Internal Revenue Code require minimum annual pension contributions in an amount equal to the sum of the "normal cost" of the plan for the year (i.e., the benefit accruals for the year) plus an amount necessary to amort

Client Alert | July 9, 2012

U.S. Securities and Exchange Commission Adopts Dodd-Frank Compensation Committee and Adviser Independence Rules

On June 20, 2012, the United States Securities and Exchange Commission (the "SEC") adopted rules under Section 10C of the Securities Exchange Act of 1934, as mandated by Section 952 of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank").  As mandated by Dodd-Frank, the SEC rules require stock exchanges to adopt listing standards that (1) impose independence requirements on compensation committee members; (2) require companies to authorize compensation committees to retain compensation consultants and other advisers; and (3) require compensation committees to assess the independence of any consultant, legal counsel or other adviser selected by the committee.  Stock exchanges have until September 25, 2012, to propose listing standards un

Client Alert | July 2, 2012

Lidow v. Superior Court: In Employment Law Context, California Declines to Apply Delaware’s Corporate Internal Affairs Doctrine

When the former CEO of a Delaware corporation headquartered in California sues his employer for retaliatory termination, which state's laws apply?  In its recent decision in Lidow v. Superior Court, a California Court of Appeal allowed the ex-CEO's claims to proceed under California law, refusing to apply a conflict of laws principle known as the "internal affairs doctrine," which otherwise would have barred his action under Delaware law.The internal affairs doctrine holds that the laws of the state of incorporation should normally govern a corporation's internal affairs.  The United States Supreme Court, citing this doctrine with approval, has described "internal affairs" as "matters peculiar to the relationships among or between the corporation and i

Client Alert | June 26, 2012

UK Government Announces Details of Binding Shareholder Votes on Executive Pay

Earlier this year we reported on the UK Government's proposals to give shareholders of companies greater influence over executive pay through the use of binding votes.

Client Alert | June 21, 2012

SEC Staff Guidance on Shareholder Proposals During 2012 Proxy Season

There have been a number of significant shareholder proposals submitted during the 2012 proxy season to date.  This alert summarizes notable responses by the Securities and Exchange Commission (the "SEC") staff (the "Staff") to no-action requests concerning many of these shareholder proposals.  By way of background, according to Institutional Shareholder Services ("ISS"), 1,105 proposals have been submitted to companies to date for 2012 annual meetings.  As of May 22, 2012, 303 no-action requests had been submitted to the SEC since October 1, 2011.  This is comparable to the number of shareholder proposal no-action requests submitted during a similar period in 2011.  Moreover, repeating the experience in 2011, the number o

Client Alert | May 29, 2012

Department of Labor Disclosure Deadlines Approaching for U.S. Retirement Plan Sponsors

The Department of Labor recently released final regulations requiring U.S.

Client Alert | May 7, 2012

Proposals for Binding Shareholder Votes on Executive Pay in the UK

On March 14, 2012, the UK Government published a consultation paper on its proposals to give shareholders of quoted companies a greater influence over executive pay.The Government proposes to introduce a binding shareholder vote on executive pay policy (possibly requiring a 65% or 75% super majority), a non-binding shareholder vote on the subsequent application of that pay policy and a binding shareholder vote on exit payments in excess of one year's basic salary.   The new rules would apply to certain UK quoted companies.  The new rules would apply to those companies with either a standard or a premium listing on the London Stock Exchange main market and UK incorporated companies listed on the NYSE, NASDAQ or officially listed in another EEA member state but would not

Client Alert | April 18, 2012

ISS Updates Governance Risk Indicators (GRId) — Public Companies Have Until February 23rd to Correct Revised GRId Data Before Implementation

Institutional Shareholder Services ("ISS"), a leading proxy advisory firm, recently announced updates to its Governance Risk Indicators (GRId) methodology for U.S.

Client Alert | February 21, 2012

Vote No to Pay — the UK’s Search for the ‘Magic Bullet’ & … The Perils of the Scatter Gun Approach …

The Business Secretary of the British government ("Government"), Vince Cable, announced a week ago a package of controversial plans in a bid to transform UK executive pay culture.  Under a new-four-pronged approach, shareholders would for the first time be given a binding vote on executive pay packages.  Executive boards may also need to become more diverse -- including at least two individuals that had not previously been on a board of directors, and people from a broader range of professional backgrounds.

Client Alert | January 31, 2012

UK Employment Update – January 2012

In this client alert we review some of the key developments that have taken place in UK employment law during 2011 and look forward to some significant changes that are on the horizon for 2012.

Client Alert | January 9, 2012

Considerations for Public Company Directors in the 2012 Proxy Season

The past year has been one of change and challenge for public companies and their boards, as companies have moved to implement "say-on-pay" and other provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank").  With the 2012 proxy season on the horizon, public companies and their directors will continue to feel the impact of Dodd-Frank as the Securities and Exchange Commission ("SEC") proceeds with its ongoing efforts to implement the law.  At the same time, public companies and their boards are operating in an environment where the balance of power between boards and shareholders continues to shift.  The traditional, board-centric model of corporate governance continues to gravitate toward a paradigm that include

Client Alert | January 3, 2012

ISS Issues White Paper on New Approach in Evaluating Pay for Performance Alignment

On December 20, 2011, Institutional Shareholder Services ("ISS"), a leading proxy advisory firm, published a white paper titled "Evaluating Pay for Performance Alignment: ISS' Quantitative and Qualitative Approach."  The white paper provides greater guidance on ISS' new approach to establishing peer groups when conducting the pay-for-performance test described in its U.S.

Client Alert | December 27, 2011

ISS Releases Policy Updates for 2012 Proxy Season

On November 17, 2011, Institutional Shareholder Services ("ISS"), a leading proxy advisory firm, released its U.S. and international corporate governance policy updates for the 2012 proxy season.

Client Alert | November 23, 2011

Qualified Plan Limitations Updated for 2012

On October 20, 2011, the IRS released the inflation-adjusted limitations applicable to tax-qualified retirement plans for 2012.  Unlike for 2011, most of the limits are increasing.  In addition to the impact of these limitations on tax-qualified retirement plans, the compensation limit under section 401(a)(17) of the Internal Revenue Code also affects the amount of severance pay that may be excludable from coverage under section 409A of the Code in certain circumstances.

Client Alert | October 20, 2011

Federal Agencies Propose Comprehensive Volcker Rule Implementation

On Tuesday, October 11, 2011, the Federal Reserve Board ("Fed") and the Office of the Comptroller of the Currency ("OCC") released for public comment and the Federal Deposit Insurance Corporation (the "FDIC") met in open session and unanimously approved and released proposed rules implementing the Volcker Rule, Section 619 of the Dodd-Frank Consumer Protection Act of 2010 ("Dodd-Frank").  The Securities and Exchange Commission ("SEC") voted unanimously to approve the proposed rule on Wednesday, October 12.

Client Alert | October 12, 2011

New Indonesian Law on Currency May Require Review of All Foreign Currency Denominated Contracts

The Indonesian House of Representatives on 31 May 2011 passed Law No.

Client Alert | July 15, 2011

Deadline to Amend U.S. Cafeteria Plan Documents Quickly Approaching

The Patient Protection and Affordable Care Act, as modified by the Health Care and Education Reconciliation Act (the "Act") requires plan sponsors to amend their cafeteria plans, including medical flexible spending accounts ("FSAs"), health reimbursement arrangements ("HRAs"), health savings accounts ("HSAs"), and Archer medical savings accounts ("Archer MSAs"), with respect to reimbursements for the purchase of over-the-counter drugs by no later than June 30, 2011.Effective January 1, 2011 (and January 16, 2011 with respect to debit card transactions), the Act prohibits FSAs, HRAs, HSAs, and Archer MSAs from reimbursing plan participants for the purchase of over-the-counter drugs, unless the participant has obtained a prescription for such

Client Alert | June 15, 2011

Recent Developments in Trade Secret Law: the Computer Fraud and Abuse Act

Washington, D.C. partner Jason Schwartz and associate Michael Murray are the authors of "Recent Developments in Trade Secret Law: the Computer Fraud and Abuse Act" [PDF] published in the June 10, 2011 issue of the Society for Human Resource Management's Workplace Law Bulletin.

Client Alert | June 10, 2011

SEC Proposes Rules on Compensation Committee Independence and the Role of Compensation Consultants and Other Advisers

Printable PDFOn March 30, 2011, the Securities and Exchange Commission (the "SEC") voted unanimously to propose rules implementing Section 952 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") relating to:  (1) compensation committee member independence; (2) compensation consultant and other adviser independence; and (3) compensation committee authority to retain, and disclosure regarding use of, compensation consultants and other advisers.  In our July 21, 2010 client memorandum, available here, we describe in detail Section 952 of the Dodd-Frank Act, which added a new Section 10C to the Securities Exchange Act of 1934 (the "Exchange Act").The proposing release is available here.  The SEC is seeking public

Client Alert | March 31, 2011

SEC Adopts Say-on-Pay Rules

Printable PDFAt an open meeting held on January 25, 2011, the Securities and Exchange Commission ("SEC") voted to approve rules to implement the provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") relating to shareholder advisory votes on executive compensation ("say-on-pay"), shareholder advisory votes on the frequency of conducting say-on-pay votes ("say-on-frequency") and shareholder advisory votes on compensation arrangements in connection with significant corporate transactions ("say-on-golden-parachutes").

Client Alert | January 25, 2011

U.S. EEOC Issues Final Regulations Implementing the Genetic Information Nondiscrimination Act

On November 9, 2010, the U.S.

Client Alert | December 21, 2010

New Law Extends U.S. Income Tax Rates Through 2012

On December 17, 2010, President Obama signed into law the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (the Act). The Act extends the existing individual income tax rates and a number of expiring credits and other benefits, provides a few new temporary tax incentives, and establishes new gift and estate tax rates and exemptions.Extension of Expiring Tax ProvisionsThe Act extends the current income rates (which reach a maximum marginal rate of 35%) through the end of 2012 for all taxpayers.

Client Alert | December 20, 2010

UK and European Remuneration Reform: Year in Review

In the past three years, international regulatory focus on remuneration has gripped the globe. The heart of the debate which arose in the context of remuneration structures in investment banking and their contribution to global financial crisis has extended past this into remuneration across a broad range of industries.

Client Alert | December 20, 2010

U.S. Health and Welfare Benefit Plans Year-End Wrap Up: 2010 Legislative and Regulatory Developments

The year 2010 has witnessed many legal developments applicable to U.S.

Client Alert | December 16, 2010

U.S. Labor Department Proposes to Expand ERISA “Fiduciary” Coverage of Providers of Investment-Related Services to Employee Benefit Plans and IRAs

The United States Labor Department has proposed an important amendment to its regulations defining fiduciary status under the Employee Retirement Income Security Act of 1974, as amended ("ERISA").  If the amendment is finalized in its proposed form, it will substantially expand the classes of service providers subject to ERISA's fiduciary duty and prohibited transaction rules.

Client Alert | November 1, 2010

Qualified Plan Limitations Unchanged for 2011

On October 28, 2010, the IRS released the inflation-adjusted limitations applicable to tax-qualified retirement plans for 2011.  Due to low inflation, the limitations have not changed from those applicable for 2010.  In addition to the impact of these limitations on tax-qualified retirement plans, the compensation limit under section 401(a)(17) of the Internal Revenue Code also affects the amount of severance pay that may be excludable from coverage under section 409A of the Code in certain circumstances.

Client Alert | November 1, 2010

Individual Account Plan Changes for Plan Sponsors to Consider

Individual account plan administrators should consider amendments to their 401(k) and 403(b) plans and summary plan descriptions (SPDs) in order to implement two recent legislative and regulatory items.  First, the Department of Labor recently released a final rule requiring plan administrators to provide participants and beneficiaries with certain investment fee and expense information.  Plan SPDs will need to be amended in order to comply with these new requirements.  Second, legislation was recently enacted authorizing 401(k) and 403(b) plans to allow in-plan Roth conversions.  A plan amendment is required to authorize the conversions.  The details of these new items are outlined below.

Client Alert | October 26, 2010

SEC Proposes Rules for Say-on-Pay and Say-on-Golden-Parachute Votes

Printable PDFOn October 18, 2010, the Securities and Exchange Commission ("SEC") proposed rules, available here, to implement the provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") relating to:  (1) shareholder advisory votes on executive compensation ("say-on-pay"); (2) shareholder advisory votes on the frequency of say-on-pay votes ("say-on-frequency"); and (3) shareholder advisory votes on compensation arrangements in connection with significant corporate transactions ("say-on-golden-parachutes").  The proposal includes transition provisions that companies may rely on until final rules are adopted.  The SEC also proposed rules, available here, relating to

Client Alert | October 19, 2010

Ninth Circuit Ruling Adopts Presumption That 401(k) Investments in Company Stock Are Prudent

In Quan v. Computer Sciences Corp., __ F.3d __, 2010 U.S. App. Lexis 20199 (9th Cir. 2010), the Ninth Circuit held that the presumption of prudence first articulated by the Third Circuit in Moench v. Robertson, 62 F.3d 553 (3d Cir.

Client Alert | October 15, 2010

Executive Compensation, Corporate Governance and Other Securities Disclosure Provisions in the Dodd-Frank U.S. Financial Regulatory Act

Washington, D.C. partners Amy Goodman, Ronald Mueller and Elizabeth Ising are the authors of "Executive Compensation, Corporate Governance and Other Securities Disclosure Provisions in the Dodd-Frank U.S.

Client Alert | September 21, 2010

Beteiligungsrechte des Betriebsrats bei unternehmensinternen Ermittlungen

Munich partner Mark Zimmer and associate Robert C.J. Heymann are the authors of "Beteiligungsrechte des Betriebsrats bei unternehmensinternen Ermittlungen" [PDF] published in the July 26, 2010 issue of Betriebs-Berater's Arbeitsrecht.

Article | July 26, 2010

Executive Compensation, Corporate Governance and Other Securities Disclosure Provisions in the Dodd-Frank U.S. Financial Regulatory Reform Act

Printable PDF On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Act," available here), the most far-reaching financial regulatory reform legislation in decades.

Client Alert | July 21, 2010

UK Pensions Regulator Issues First Contribution Notice

Historic liabilities arising from defined benefit pension schemes continue be a significant feature of the corporate landscape in the UK.  The Pensions Regulator has sweeping powers to make orders to ensure that historic liabilities are adequately provided for.  Under the Pensions Act 2004 the Pensions Regulator has the power to make orders that could have extra-territorial application and effect.  The Pensions Regulator has, for the first time, exercised its enforcement powers to require a Dutch parent company to make a sizable lump sum contribution to make good the deficit in the pension scheme of its UK subsidiary.   The Pensions ProblemDuring the last 10-20 years a large number of employers in the UK have scaled back their employee pension arrangements.

Client Alert | July 20, 2010

The Final “Volcker Rule” under the Dodd-Frank U.S. Financial Regulatory Reform Bill

This alert covers the Dodd-Frank Wall Street Reform and Consumer Protection Act and its "Volcker Rule" provisions, prior to its passage in 2010.

Client Alert | July 12, 2010

The Impact of U.S. Health Care Reform on Employers

On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (the "Act").  The Act fundamentally alters the U.S.

Client Alert | April 2, 2010

Financial Regulatory Reform: Chairman Dodd Releases New Legislation to Reform Financial Services Industry Regulation and Enhance Consumer Protection

Gibson Dunn is closely tracking government responses to the recent turmoil that has catalyzed a dramatic and rapid reshaping of our capital and credit markets.

Client Alert | March 17, 2010

Congress Extends and Expands COBRA “Subsidy”

On December 21, 2009, President Obama signed the 2010 Defense Appropriations Act.  Among other things, the Act extends the eligibility period for the COBRA premium subsidy from December 31, 2009 to February 28, 2010 and expands the maximum duration of the subsidy from 9 to 15 months.  The longer subsidy period applies retroactively and will require plan administrators to provide a supplemental notice to affected individuals.BackgroundThe COBRA subsidy initially was included in The American Recovery and Reinvestment Act of 2009 (commonly known as the stimulus bill) and provided a temporary COBRA premium subsidy for employees who lost health plan coverage between September 1, 2008 and December 31, 2009 due to involuntary terminations of employment.  Our February 24, 2009 

Client Alert | December 22, 2009

SEC Adopts Final Rules on Enhanced Proxy Statement Disclosures about Risk, Compensation and Other Corporate Governance Matters

At an open meeting held on December 16, 2009, the Securities and Exchange Commission ("SEC") approved a set of proposed rules to enhance the information provided to shareholders in company proxy statements regarding a number of risk oversight, compensation, board leadership and composition and other corporate governance matters.  The SEC approved the final rules by a 4-to-1 vote, with Commissioner Kathleen Casey dissenting.  The SEC released the text of the final rules on the same date they were adopted, with the 129 page adopting release available here.  The new rules have an effective date of February 28, 2010, except that a rule change on how equity awards are reported in the Summary Compensation Table applies to all companies with fiscal years ending after Dece

Client Alert | December 16, 2009

‘Ahead of the Game’ … or … ‘Out of the Game’? — UK Bank Payroll Tax

In his presentation of Pre-Budget Report -- Securing the Recovery: Growth & Opportunity (PBR), released on Wednesday, the UK's Chancellor of the Exchequer, Alistair Darling, unveiled a one-off "bank payroll tax" of 50 per cent on bank bonus payments which takes effect immediately and runs (unless extended!) until 5 April 2010.In the 216 page report, HM Treasury proudly notes that the UK has been at the forefront of international financial regulatory reform through its Presidency of the G20.

Client Alert | December 11, 2009

RiskMetrics Group Releases Policy Updates for 2010 Proxy Season

On November 19, 2009, RiskMetrics Group (RiskMetrics), a leading proxy advisory firm, released its U.S. and international corporate governance policy updates for the 2010 proxy season.  Please see the U.S.

Client Alert | December 7, 2009