Director Compensation Litigation and Governance Updates: Three Things Every Public Company Director Should Know

Key Takeaways

• Director compensation suits may survive a motion to dismiss in Delaware even if director compensation is within a shareholder-approved limit.
• ISS and Glass Lewis have formulated policies for assessing director compensation proposals and ISS may recommend against board members who routinely approve excessive director compensation without a compelling justification.
• In light of the foregoing, it's becoming more important for companies to annually assess their director compensation against peers and provide enhanced director compensation disclosure in their proxy statements.

1. Having a shareholder-approved director compensation limit may not be enough to avoid a director compensation suit

As we discussed in a prior alert, in Re Investors Bancorp, Inc. Stockholder Litigation, a case involving allegations of excessive director compensation, the Delaware Supreme Court held that discretionary awards granted to non-employee directors are not entitled to the protection of the business judgment rule at the pleading stage even if such awards are within a shareholder approved limit. The court also held that the business judgment rule is only available where shareholders approved such awards or such awards were automatically granted or paid pursuant to a shareholder-approved formula.

While Bancorp involved egregious facts, the upshot is that a shareholder-approved limit, even if narrowly tailored, may not be enough to dissuade a plaintiff from filing suit against a public company, particularly in cases where director compensation is high. Accordingly, compensation committees should work with their compensation consultants to annually assess director compensation. If director compensation is substantially higher than peers, or the company believes it is otherwise a target for litigation, the board should consider seeking shareholder approval of its director compensation program or a formula plan.

2. Proxy advisors have begun to focus on director compensation

Institutional Shareholder Services ("ISS") and Glass Lewis have adopted guidelines for approving director compensation proposals

In response to more public companies seeking shareholder approval of their non-employee director compensation programs, ISS and Glass Lewis have adopted guidelines for evaluating director compensation proposals. Their assessment will, among other things, consider the following:

• Meaningful stock ownership requirements (for ISS, this is at least 4x the annual cash retainer);
• Whether the program includes problematic compensation practices (for example, performance-based equity awards, retirement benefits or other perquisites);
• The magnitude of director compensation;
• The presence of a meaningful limit on annual director compensation; and
• The quality and transparency of director compensation disclosure.

ISS and Glass Lewis have also formulated guidelines for evaluating proposals seeking shareholder approval of stand-alone director equity plans. In general, these institutional advisors focus on the costs of such plans and whether such plans include egregious features such as option repricing. ISS will also evaluate the burn rate in rare cases, and will consider the qualitative factors described above when the cost of the plan and burn rate are excessive.

ISS will recommend voting against directors who approve excess director compensation

In 2018, ISS implemented a policy under which ISS may issue adverse vote recommendations for the reelection of those directors responsible for approving excessive director compensation for two or more consecutive years without a compelling rationale. In its assessment, ISS will compare individual non-employee director compensation totals to the median of all non-employee directors at companies in the same index and industry to identify companies with directors whose compensation is among the top 5 percent of all comparable directors.

3. Providing enhanced director compensation disclosure is becoming more important

In light of the foregoing litigation and governance concerns, public companies should consider providing enhanced director compensation disclosure in their proxy statements to show that their director compensation practices are reasonable. Such disclosure should describe:

• The company's director compensation philosophy;
• The process used to determine director compensation, including the role and analysis of the compensation consultant;
• How director compensation compares to peers if director compensation is not excessive;
• Each element of director compensation;
• The rationale behind director compensation decisions and each element of director compensation;
• Whether directors are subject to any stock ownership guidelines; and
• Whether there is any director compensation limit in place.