On December 13, 2017, the Delaware Supreme Court in In re Investors Bancorp, Inc. Stockholder Litigation issued a decision having significant ramifications on director compensation. The case increases the risk of plaintiff stockholder claims against directors based on a breach of fiduciary duties where directors grant themselves equity awards pursuant to a plan providing the directors with general discretion to determine the amount, terms, and conditions of the awards – even if the plan includes a stockholder-approved limit in the plan on the size of the awards that may be granted to directors.
Pursuant to Department of Labor guidance, a “statement of investment policy” provides fiduciaries responsible for plan investments with written guidelines or general instructions concerning various types of investment management decisions. Typically, an investment policy will establish criteria and procedures for the selection, monitoring, removal, and replacement of plan investments. Unlike the “funding policy” required for plans under Section 402(b) of ERISA, there is no requirement under ERISA that a plan have a written investment policy…
A recent Delaware Court of Chancery decision builds on prior case law and provides useful insight for companies seeking to establish an effective director compensation limit in order to avoid expensive stockholder litigation. In the case, In Re Investors Bancorp, Inc. Stockholder Litigation (2017 BL 111738, Del. Ch., No. 12327-VCS, 4/5/17), plaintiff stockholders claimed that directors breached their fiduciary duties by awarding themselves “grossly excessive compensation” under a plan that, though approved by stockholders, included…
The establishment of prudent processes is a fundamental element of appropriately discharging fiduciary duties under ERISA. Where a committee acts as the primary plan fiduciary, a written committee charter will typically form the basis for all committee operations. The committee charter effectively provides the “by-laws” and operating guidelines that will govern how the committee discharges its obligations. The Charter’s Role Charters will typically address how committee members will be appointed and replaced, term limits, quorum,…