Delaware Law Issues Update

8:41 a.m., Dec. 10, 2015--The third annual Delaware Law Issues Update brought together distinguished legal and corporate governance experts from around the country to discuss Delaware corporate law and governance issues essential to corporate secretaries, in-house counsel, outside counsel and governance professionals who advise boards. 

Hosted by the University of Delaware’s John L. Weinberg Center for Corporate Governance and the Society of Corporate Secretaries and Governance Professionals, in partnership with the state of Delaware, the two-day conference was comprised of five panel discussions on legal and corporate governance issues, as well as a number of featured speakers.

The speakers included Delaware Secretary of State Jeffrey W. Bullock and Chancellor Andre Bouchard and Vice Chancellor J. Travis Laster, both of the Delaware Court of Chancery.

“We’ve convened about 150 of the best minds in the corporate governance field, both as panelists and speakers and in our audience, to talk about the latest developments in Delaware corporate law and in the corporate governance field that all board advisers need to know to best position their boards in many different factual circumstances,” said Ann Mulé,associate director of the Weinberg Center.

These thought leaders included current and former members of the Delaware Supreme Court and the Delaware Court of Chancery, as well as prominent Delaware, Wall Street and plaintiffs lawyers; both activist and large institutional investors; knowledgeable corporate secretaries and general counsel; well-known proxy advisers and governance experts.

“All are here to interact, learn and teach, and all share the goal of positively improving the field of corporate governance,” Mulé said.

Hot topics in corporate governance

The conference’s first day began with an address from Laster and included three panel discussions on subjects that strongly impact today’s legal and corporate governance worlds.

Laster was introduced by Anne Foster, director, Richards, Layton and Finger. Laster spoke about three recent Delaware cases that illustrate the stability and predictability of Delaware law and also reflect the evolving nature of shareholders and the market.

“Issues Relating to Recent Shareholder Activism,” which was moderated by William Lafferty, partner, Morris, Nichols, Arsht and Tunnell LLP and included Vice Chancellor Sam Glasscock, focused on recent case law on shareholder activism as well as what companies can do to prepare in advance for activists.

The day’s next panel, “M&A and Advising the Board,” which was moderated by David Katz, partner, Wachtell, Lipton, Rosen and Katz, discussed the best ways for boards of directors to meet their fiduciary responsibilities in the context of mergers and acquisitions.

The panel also addressed the relationship between financial advisers and the board, including the board's responsibility with regard to adviser conflicts, and provided practical advice on retaining financial and other advisers. 

The panel focused on important developments from the latest Delaware merger and acquisition and appraisal cases, as well as practical guidance for dealing with these developments. 

Next, “Hot Issues in Corporate Governance and Preparing for the 2016 Proxy Season,” which was moderated by Thomas Kim, partner, Sidley Austin LLP and included Henry duPont Ridgely, senior counsel, DLA Piper LLP (US) and former justice, Delaware Supreme Court, focused on the most important findings to take from the 2015 proxy season.

Panelists also discussed new and anticipated rules, regulations and expectations of investors and proxy advisors that will impact the 2016 proxy season.

Why Delaware?

During the luncheon welcome, Charles Elson, director of the Weinberg Center, Edgar S. Woolard Jr. Chair in Corporate Governance and professor of finance, explored Delaware’s distinctive and influential legal position. 

“Delaware effectively regulates corporate law in the United States and around the world,” Elson said.

He explained that many corporations moved to Delaware in the early 20th century after changes in New York and New Jersey law were deemed less than optimal for business.

Once corporations moved to Delaware, they found a number of reasons to stay.

“Delaware was unique because it had a judicial system, the Court of Chancery, that was uniquely positioned to determine corporate disputes,” Elson said. 

He explained that the small state’s lack of conflicting interests made the development of corporate law the real interest of Delaware, leading to rulings that are done in an “intelligent, thoughtful way.” 

Meanwhile, a responsive legislature and highly sophisticated corporate bar and judiciary contributed their inimitable qualifications. 

“Though a small state-run court system, we’re very national in scope, because there’s no interest other than getting it done right,” Elson said. “We have a national system of business regulation coming out of this state.”

During the luncheon, there was a question and answer session with Bouchard, which was facilitated by Rolin Bissell, a partner at Young Conaway Stargatt and Taylor LLP.

Bouchard provided his views on the role of the Court of Chancery and with regard to certain important issues for directors and for those who advise directors.

The evening featured a reception hosted by Bullock and ended with dinner and a conversation with Martin Lipton, senior partner at Wachtell, Lipton, Rosen and Katz, which was facilitated by Darla Stuckey, president and CEO of the Society of Corporate Secretaries and Governance Professionals. 

Lipton provided his views on many issues impacting board of directors and shareholders.

Ethical issues and a changing landscape

The second day of the Delaware Law Issues Update included two panel discussions that examined the latest developments on a variety of legal topics.

“Legal Ethics Issues in Corporate Governance,” which was moderated by Amy Goodman, retired former partner, Gibson, Dunn and Crutcher, and included Jack B. Jacobs, former justice in the Delaware Supreme Court, focused on issues that commonly arise in the corporate governance area and when advising boards of directors. 

The panel discussed issues like attorney-client privilege and work product doctrine, including board and committee minutes, sharing of information and attorneys performing business functions.

Panelists also assessed ethical and practical issues in representation of independent directors and independent board committees, and ethical and practical issues in drafting advancement and indemnification bylaws and agreements.

The final panel of the conference, “The Changing Delaware Landscape for Bylaws and Dispute Resolution,” which was moderated by Jennifer Voss, partner, Skadden, Arps, Slate, Meagher and Flom LLP and included Delaware Supreme Court Justice Karen L. Valihura, discussed the latest developments in exclusive forum bylaws, fee-shifting bylaws and other new uses of corporate bylaws. There was also a discussion about companies re-incorporating in Delaware to benefit from Delaware law.

The panel also focused on the newly enacted Delaware Rapid Arbitration Act and its potential uses.

Photos by Evan Krape and Duane Perry

First Premier Bank selects Jack Henry’s Silverlake core banking system

South Dakota-based First Premier Bank has selected Jack Henry’s Silverlake core banking system.

Implementation of the core processing system will be through JHA OutLink Processing Services (JHA OPS), Jack Henry’s outsourced offering.

Darrell Schmith, executive vice-president and CFO of First Premier Bank, says the Silverlake system will provide ‘a more holistic view of each customer from a single screen, enabling our team to better understand the entire relationship’.

According to Schmith, the bank’s preference to outsource its new core system through JHA OPS is ‘primarily because outsourcing allows the bank to focus important resources on customer needs rather than managing internal systems’.

Badlands, South Dakota / © Wikipedia

First Premier Bank is based in Sioux Falls, South Dakota, and has $1.5 billion in total assets.

Bank in the Badlands?

First Premier Bank has had an interesting past.

In 2010, US news site The Daily Beast reported on its practices and how President Obama announced sweeping reforms in the US credit-card industry that would ‘hold the credit-card companies accountable’ and end ‘deceptive, unfair tactics that hit responsible consumers with unreasonable costs’.

First Premier Bank had a Mastercard offer that carried a 59.9% annual interest rate, charged $120 in first-year fees and limited a customer’s credit line to $300.

The bank’s piece of plastic was named ‘the nation’s worst credit card’ by Consumers Union, a non-profit group in the US.

In addition to this lovely accolade, Travis Plunkett of the Consumer Federation of America, said: ‘Some customers who are not terribly sophisticated are still being taken to the cleaners by the fine print.’

The bank is not alone in this activity, and First Premier executives defended themselves by arguing to The Daily Beast that ‘they are doing a service to financially troubled customers who otherwise could not obtain any sort of credit card’.

Golden year for Silverlake

High percentage rates from the bank aside, let’s end on a positive.

Jack Henry’s Silverlake has had a number of takers this year in the US.

Nashville-based FirstBank announced it was implementing Silverlake. The vendor describes this undertaking as an enterprise-wide technology overhaul.

Pacific National Bank (PNB) implemented Silverlake to prop up its digital and in-branch banking systems and Fox Chase Bank chose Silverlake as it seeks to strengthen its $1.1 billion commercial banking operations.

Tigers host Indians in crucial NWOAL battle

LIBERTY CENTER – For the second week in a row, the Liberty Center gridders will be at home Friday night, entertaining the defending Northwest Ohio Athletic League champion Wauseon Indians.

Wauseon is presently 5-1 overall and 2-1 in the conference standings. Their lone setback was to Delta (20-14) three Fridays ago, while they own victories over Fairview, Fostoria, Tinora, Archbold and Bryan.

Coach Travis Cooper’s squad is averaging 27 points a game, while surrendering only 12 points per outing.

Leading scorer has been JJ Kauffman (6-1, 170) with nine touchdowns and the senior has completed 46 aerials in 71 attempts for 470 yards and three scores. Leading receivers have been seniors Ty Leininger (6-1, 155) with 11 receptions for 136 yards and Mason Creager (6-0, 165) with 16 catches for 129 yards.

Leading rushers are junior Brendan Wilson (6-1, 173) with 53 yards on 69 totes, along with Kauffman (374 yards on 74 carries). Creager averages about 17 yards per punt return, while Wilson has been leading the team in tackles.

Liberty Center opened the autumn with setbacks to Tinora and Napoleon, but the Tigers have been improving each Friday night and now own verdicts over Nelsonville-York, Patrick Henry, Evergreen and Delta.

“We’re coming off the ball really well and our line is doing an excellent job,” commented Tiger coach Rex Lingruen. “The biggest thing right now is that we have to stay healthy. We have a couple guys banged up, but we have been fortunate in having guys fill in and performing well.”

Leading the Tigers in rushing is Zach Carpenter with 728 yards and nine scores on 122 carries. Next in line is Dylan Sexton with 452 yards, but Sexton is questionable after an injury in the Delta game.

Brooks Hinton had an efficient night throwing against Delta and now has 17 completions for 264 yards and a pair of TDs. Leading receiver is Christian Chambers with six catches for 83 yards.

On defense, it is still Logan Smith leading the way with 73 tackles, 6.5 tackles-for-loss, four sacks, an interception and a fumble recovery. Hinton has three interceptions to his credit in the secondary.

Carpenter has been able to get extra yardage after getting through the holes created by the Tiger line and Lingruen added, “If you are a fullback in our system, you had better be ready to run hard. Zach has picked it up and I think he is a lot better than the first couple of weeks.

“Chambers is really playing good football right now. I think that people don’t realize that he is an excellent blocker, he runs the ball well and he has made a couple of great catches,” Lingruen went on. “He is just a great plus for us.”

Turning his attention to Wauseon, Lingruen noted, “Wauseon has the best line that we have seen so far. They come off the ball and they are very dangerous. Their offense is spread and they make you defend the entire field.

“They have some big fast kids, but the only thing that has been hurting them is that they have been turning the ball over quite a bit,” concluded the Tiger coach. “Hopefully, we can cause some turnovers, but if they put it all together they are a very good football team.”

Kickoff is set for 7 p.m. at Tiger Stadium.

MY UBER DRIVER TOUCHED ME, SAYS TEXAS WOMAN

An 18-year-old Texas woman told authorities that her Uber driver took her to his apartment against her will and touched her inappropriately. The Uber driver has been arrested. The driver, 55-year-old Michael Olu-Wehuje was picked up by Travis County deputies and the alleged victim is speaking out to local media.

The alleged victim, Regina Lara, told the local KXAN:

She said they got back in the car, but he didn’t take her home. Instead, he pointed out his apartment. He said, “You see those apartments right there? I live there,” said Lara, who said Olu-Wehuje asked if she wanted to see them and she told him no.

Court documents state, “Instead of taking her back home, he drove to his apartment and told Regina to get out and come inside his apartment.  Regina states she was afraid for her safety since he did not drive her home.”

Lara said the driver stood behind her and told her to walk, opened the apartment door, and immediately locked the door.  She said he told her to sit on the couch, put on cartoons, offered her beer and wine and sat next to her.

Another local news outlet found another angle to report and addressed Uber and background checks for their drivers. KEYE News wrote, “Uber Driver Arrested, Debate Over Background Checks Continues.” They assert that the driver had a previous conviction for theft under $500. They wrote:

According to Williamson County records, Olu-Wehuje had a previous arrest for theft under $500. That may not show up under a typical Uber background check.

“You can’t have any convictions of any serious crimes over the last seven years,” Uber driver Anthony Nguyen said.

Nguyen says that includes no DWI’s, felonies and you can’t be on the sex offender registry. He also says Uber can cancel any driver’s account immediately.

“They don’t tolerate any bad behavior from any drivers,” Nguyen said.

However, Nguyen says Uber does not do fingerprint background checks. That’s something taxi cabs and limousine companies do have to do in Austin.

Traditional transportation services, such a taxi cab companies, have organized stiff resistance to companies like Uber across the nation. Even various Texas cities have stepped in with regulations that restrict or pose difficulties for the newer models of transportation. As Sarah Rumpf wrote previously for Breitbart Texas, San Antonio imposed strict rules that risked choking out Uber:

Uber, the ride-sharing service that lets customers summon transportation using a smartphone application, has announced it will make good on its threat to cease doing business in San Antonio, Breitbart Texas has learned. The San Antonio City Council passed a new ordinance last December in a 7-2 vote, to be effective on March 1, and Uber says that if the ordinance is allowed to go into effect, they will leave the city.

A source at Uber confirmed to Breitbart Texas that San Antonio is the only city in Texas that has passed regulations that the company deemed too burdensome for them to continue operations, and the only one that has received letters threatening to leave the city. The same source told Breitbart Texas that San Antonio Council Member Ron Nirenberg, one of the two who voted against the ordinance, has reached out to Uber, but otherwise Breitbart Texas was not able to confirm any response from the city. The San Antonio Express-News likewise reported that they had reached out to Mayor Ivy Taylor and Council Member Rebecca Viagran for comment, but did not receive a response.

Uber notified their San Antonio area drivers of the situation in an email )embedded at the end of this article) from Uber San Antonio General Manager Henry Carr on Wednesday. The email explains that because San Antonio has passed “an ordinance that applies unworkable regulations,” if it goes into effect, “we will have no choice but to to leave town.”

Carr’s email also points to the “hefty fees on drivers” as one problem with the ordinance: “Austin requires drivers to pay $0.00, Houston only requires $11.01, and San Antonio requires $175.00.” Carr’s email ends by urging Uber’s San Antonio drivers to contact the City Council and ask them to repeal the ordinance.

CFL Picks: Edmonton Eskimos have major chore trying to end Calgary Stampeders’ home win streak

Mike Reilly and the Edmonton Eskimos will try to do something no other CFL team has this season: Beat the Calgary Stampeders at McMahon Stadium.

The Eskimos (10-4) visit the Stampeders (11-3) in a battle between the league’s top two teams. The winner claims the season series and tie-breaker in the event the two squads end the regular campaign with identical point totals.

The defending Grey Cup-champion Stampeders have the league’s best home record at 7-0 and are 6-1 within the West Division.

Edmonton is the CFL’s hottest team with four straight wins and boasts a defence that’s allowing just 18.6 points and 67.1 yards rushing per game, both league lows.

Edmonton is 4-0 with Reilly back as its starter. Reilly suffered a knee injury in the season-opening loss to Toronto and saw action in the Eskimos’ 16-7 Labour Day loss to the Stampeders before returning as the starting quarterback and leading his team to a 27-16 home victory over Calgary on Sept. 12.

Reilly has completed 82-of-135 passes (74.1 per cent) for 908 yards and six TDs over his last four starts with four interceptions. He finished 22-of-40 passing for 352 yards and three TDs in the win over Calgary.

Reilly has also rushed for 146 yards and a TD in 29 carries (5.03-yard average) since returning as the starter.

Grey Cup MVP Bo Levi Mitchell leads a Calgary offence that’s averaging over 26 points per game and features two potent weapons in receiver Eric Rogers and running back Jon Cornish.

Rogers is the league’s receiving leader with 72 catches for 1,184 yards and seven touchdowns. Cornish, from New Westminster, B.C., was the CFL’s top player in 2013 and three times has been named its top Canadian. However, he didn’t play in the two previous contests versus Edmonton.

But it’s Mitchell who makes the unit go. Mitchell is second overall in passing (3,808 yards) with 20 TDs but has also thrown 11 interceptions, two behind league leader Trevor Harris of the Toronto Argonauts.

Calgary is also coming off a close win, nipping Hamilton 23-20 on Rene Paredes’ game-ending 37-yard field goal. Edmonton needed Sean Whyte’s 53-yard boot on the final play to beat Winnipeg after Bombers kicker Lirim Hajrullahu missed four of the five field goals he tried.

Calgary and Edmonton have both clinched playoff berths but first in the West remains the big prize. The first-place finisher not only receives a first-round playoff but also hosts the division final.

Pick — Calgary.

Saskatchewan Roughriders at Hamilton Tiger-Cats (Friday night)

Hamilton (8-5) suddenly is in dire need of a home win. After winning 10 straight at Tim Hortons Field, the Ticats have dropped three of four games there, including last weekend’s 23-20 decision to Calgary. Saskatchewan (2-12) has lost three-of-four contests since beating Winnipeg 37-19 for its first victory of the year. Riders running back Jerome Messam has 818 rushing yards — one behind B.C.’s Andrew Harris, the league leader — and is averaging 6.3 yards per carry.

Pick — Hamilton.

Winnipeg Blue Bombers at B.C. Lions (Saturday night)

Winnipeg (4-10) deserved better last week against Edmonton as starter Matt Nichols was 22-of-39 passing for 320 yards and a TD against his former club. But Hajrullahu simply must be better. B.C. (5-8) holds the West Division’s third and final playoff position for now. Incumbent Travis Lulay recently came off the six-game injured list, but rookie Jon Jennings had four TD strikes in last weekend’s 46-20 win over Saskatchewan. It’s hard to overlook the Bombers’ 3-6 division record.

Pick — B.C.

Toronto Argonauts at Montreal Alouettes (Monday afternoon)

A must-win for Montreal (5-8), which is six points out of the third and final East Division playoff spot and tied with B.C. for the West crossover. The Als haven’t played since their 39-17 road loss to Ottawa on Oct. 1 as Henry Burris had a league-record 45 completions. Toronto (8-5) comes off consecutive wins over the Redblacks, including a 38-35 decision Tuesday night thanks to Chad Owens’ late one-handed TD grab. It was one of five scoring strikes for Harris, who also threw for 397 yards.

Pick — Toronto.

Last week: 4-1

Overall: 37-24.

World's Angriest Fan: Detroit Lions edition

Welcome to the inaugural edition of World’s Angriest Fan, where each week we speak to a fan who has completely had it with his or her team. Just hands-in-the-air, wall-smashing, I’m-finally-selling-my-toaster-that-burns-a-logo-into-my-bread done with the whole thing. 

Maybe your team just blew it. Maybe your quarterback is garbage and your O-line is awful. Maybe your coach is an idiot, or your owner has come unhinged. Perhaps there are mysterious forces conspiring to drive your team into the ground. Or perhaps those forces are hiding in plain sight, and no one seems to want to do anything about it. 

Have you ever hated the team you love? Like really, really, really hated them, with a fervor and venom typically reserved for dictators or diseases? Nick O. has.

He is the World’s Angriest Fan.

*****

The Detroit Lions are not good. The promise of last year’s season — when the team went 11–5 and made it to the NFC wild-card game — has quickly dissipated. After Monday night’s loss to the Seattle Seahawks, the Lions are 0–4 and are the only winless team in the NFL. A lot went wrong Monday, including a blown call by a back judge with less than two minutes to go that cost Detroit the game. But this is only the latest debacle in a years-long stretch of misery for the Lions, which in 2008 became the first — and to date only — team under the modern 16-game schedule to go an entire season without a single victory.

Last night, Nick O. burned his Lions jersey.

Coach Travis Diener on Marquette Madness

The biggest college basketball party in Milwaukee is coming Friday night.  The Marquette men's and women's basketball teams are each going to be unveiled to their fans at the annual Marquette Madness event.

It's free for all the fans coming to the Al McGuire Center, but fans must arrive early.

Assistant coach Travis Diener knows the experience of tipping off a basketball season both as a player and a coach.  He shares a preview of the event and the 2015-16 season with Greg Matzek on Sports Central.