Looking Ahead at 2010 By Looking Back at 2009

by Francis H. Byrd, for The Harvard Law School Forum at Harvard Law School, January 17, 2010.

As 2009 comes to a close and we prepare for the 2010 proxy season, it is time to contemplate the changes that have occurred, and what they might portend for 2010. The two quotes above seem to best encapsulate both the mood and the reality of those involved in corporate governance.

As 2009 started, advisors and observers hunkered down to weather all of the dramatic changes that appeared to be certainties: Proxy Access, ‘Say on Pay’ (SOP), and separation of the role of Chairman from that of Chief Executive would altered by legislative fiat or regulatory order. Yet despite all of the motion and noise, only one major governance change took place in 2009, that of the Securities and Exchange Commission amending the broker discretionary vote, NYSE Rule 452, relating to director elections. 2009 might have been an even more dramatic year for corporate governance had it not been for the Obama administration focus on health care. This shift in attention on the part of the White House has been cited by numerous commentators as a key reason for the decrease in momentum of financial and governance-related regulation and legislation.

Looking ahead to 2010, the table is mostly set, but surprises are still possible. The Securities and Exchange Commission surprised many observers earlier this week by reopening the comment period on the Proxy Access issue (please see our note below regarding our survey on proxy access, a follow-up to our analysis of the 500 plus comment letters to the SEC on this question) after a review of research provided by the Business Roundtable and the Council of Institutional Investors…(continue reading)


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