Recent case law suggests that corporations should consider implementing limits on director equity awards similar to those implemented for executives. The current practice is to include director equity awards in stockholder approved “omnibus” stock plans that also cover executive officers and key employees. However, unlike for certain executives, there are no regulatory requirements regarding limits on directory equity compensation.
Two recent cases brought by shareholders arguing that corporations essentially overpaid their directors are leading companies to revisit the practice of not having any limits on director equity compensation. Both cases survived motions to dismiss; one case is settled while the other remains active. In an article published by Bloomberg BNA, Andrew C. Liazos, partner at McDermott Will & Emery, noted that additional cases are being filed regarding director compensation using a variety of state corporate law claims.
Given the case law and threat of additional litigation, corporations should begin designing limits for director equity compensation. For more discussion on this topic, read the attached presentation co-authored by Mr. Liazos.