Compensation paid to management has been a source of contention between companies and shareholders for some time. This year is no exception as described in recent articles in “The Street” and “Forbes”.
The new front in the compensation battle, however, involves payment to non-executive directors or what directors pay themselves. A recent lawsuit challenging Facebook’s Board compensation policies is a notable example (click for “Reuters” article).
This battle has been building as described by Michael Melbinger, an attorney with Winston & Strawn on “Lexology” (Click here). Recent successes by shareholders in shareholder derivative litigation will likely prompt more challenges.
Michael Melbinger notes:
DGCL § 141(h) expressly provides that “Unless otherwise restricted by the certificate of incorporation or bylaws, the board of directors shall have the authority to fix the compensation of directors.” However, that does not prevent shareholders from challenging the amount or form of compensation paid.
Companies are likely to find that when activists challenge management’s compensation, challenging board compensation is likely a next step.