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ISSUES FOR CORPORATE COUNSEL TO BROOD OVER March 31, 2011

ISSUES FOR CORPORATE COUNSEL TO BROOD OVER March 31, 2011. Presenters. Presented by Allen Goolsby and the Following Panel: Stephen Gannon, Executive Vice President and Deputy General Counsel Capital One Financial Corporation Louanna Heuhsen, Vice President and Associate General

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ISSUES FOR CORPORATE COUNSEL TO BROOD OVER March 31, 2011

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  1. ISSUES FOR CORPORATE COUNSEL TO BROOD OVERMarch 31, 2011

  2. Presenters Presented by Allen Goolsby and the Following Panel: Stephen Gannon, Executive Vice President and Deputy General Counsel Capital One Financial Corporation Louanna Heuhsen, Vice President and Associate General Counsel Altria Group, Inc. McAllister Marshall, Vice President, General Counsel and Corporate Secretary The Brink’s Company Leon Roday, Senior Vice President, General Counsel and Secretary Genworth Financial Inc.

  3. Director Selection & Proxy Access • Director Selection and Proxy Access • Attention to the substantive issue of what constitutes a good board is being subsumed by focus on process for selecting directors. • H-P and ISS • Is it a unique situation or the start of a trend? • Court hearing on proxy access imminent. • 14a-8 proxy access by-law proposal a greater concern than 14a-11. • A new focus on qualifications for directors. • Refinements to advance notice bylaws. • Proxy expense reimbursement.

  4. Contingent Losses • Contingent Losses • Proposed amendments to ACS Topic 450-20 to address lack of adequate information regarding likelihood, timing and magnitude of potential losses. • Key change would involve increased disclosure of estimates of potential loss or range of loss. • No indication of time or substance of another proposed revision. • At least for the financial industry, the SEC is getting close to same result using current accounting rules. • Bank of America as an example.

  5. AirProducts v. AirGas • AirProducts v. Airgas • Delaware chancery court refused to require Airgas to redeem shareholder rights plan in the face of an all cash offer for all shares that shareholders clearly supported. • Confirms that the Board can just say no. • Court applying Virginia law should reach the same conclusion. • Why did Chancellor Chandler have such a hard time?

  6. FCPA & Compliance Issues • D. FCPA and other regulatory compliance issues • FCPA – Both Justice and the SEC. • Dodd – Frank and the use of administrative proceedings by the SEC. • The plaintiffs’ bar and the regulators. • Dodd – Frank and whistleblowers. • The ABA response: • Protecting the internal investigation process. • No reward for wrongdoers. • Final rules in the next 30 days. • Does Renault tell us anything?

  7. Proxy Plumbing • Proxy Plumbing • From the perspective of boards and management of public corporations a rare opportunity to make things better. • Opportunities to: • Increase the retail vote. • Reduce the influence of proxy advisors. • Establish direct contact between the company and beneficial owners. • Limit the use of borrowed shares and derivatives to increase voting power without increasing economic ownership.

  8. Privacy • Protecting Confidential Information in the Electronic Age • Data breach a growing problem. • EMC as one example. • Privacy concerns and illegal acts appear to be of little interest to news media and the public at large. • Wikileaks and other anarchist groups operate free of any restraint. • In the international arena corporate espionage a growing concern. • Disgruntled employees a major problem. • Enhanced security essential, but not enough. • Use of third-party security experts. • Use of illegal counter-tactics should be avoided. • Retraining the work force not to assume confidential treatment.

  9. Sustainability & Social Activism • Sustainability and Social Activism • What is the concern? • Sustainability a slippery slope. • Examples of current proposals: • Climate change and other environmental concerns. • Political contributions and lobbying expenses. • Socially responsible technology use. • Other constituencies and the role of the board.

  10. Communication • Communication between the Board and Shareholders • Report of the Corporate Laws Committee. • The Carpenters proposal and Walden Asset’s proposal. • Issues to consider: • The relationship between the Board and Management. • What, Where, When and With Whom. • Reg. FD issues. • Other issues regarding the role of the Board and the shareholders. • Limitation on Board powers.

  11. Whistleblower Regulations • Whistleblower regulations • Final regulations are imminent. • Will provide for substantial rewards to whistleblowers in significant cases. • SEC must act by April 17. • Proposed regulations drew strong objections from the business community and the corporate bar. • Two major concerns: • A wrongdoer could still get a substantial reward. • Incentives to ignore the Company’s internal investigation process and go directly to the regulatory authorities will undermine the internal investigation process and will overwhelm the SEC Staff.

  12. Say-on-Pay &Executive Compensation • Say-on-pay and other executive compensation issues • Advisory vote on say-on-pay can be a safety-valve. Unhappy shareholders more inclined to vote no on say-on-pay than to cast votes against directors. • Notwithstanding, a negative vote has consequences and should be avoided. • The latest trend on one, two, or three years. • How is the vote treated under state law? • Are there situations where the preference of the shareholders should be ignored? • Use of independent consultants. • Will we see increased use of independent counsel? • Company CEO pay to average pay. • H.R. 1062.

  13. Thank you. Allen C. Goolsby Tel: 804-788-8289 Email: agoolsby@hunton.com

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