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Sinead M. Kelly

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Sinead Kelly is a partner in the Firm's Compensation practice. She advises on US executive compensation and global equity and has practiced in the compensation field for over 15 years. She regularly publishes articles and blogs on compensation-related topics and is a contributing author to Lexis Practice Advisor and a founder of the Firm's Compensation Connection blog. She is also a frequent speaker on executive compensation and global equity topics. She has been recognized by Chambers USA for Employee Benefits and Executive Compensation where Chambers states that she is "fantastic and always provides comprehensive and timely advice," and she is ranked by Legal 500 as a "Leading Lawyer" in this area.

Last fall California doubled-down on the state’s hostility to noncompete agreements. Assembly Bill 1076 codified the landmark 2008 Edward v. Arthur Andersen decision that invalidated all employment noncompetes, including narrowly tailored ones, unless they satisfy a statutory exception. AB 1076 also added new Business & Professions Code §16600.1, requiring California employers to notify current (and certain former) employees that any noncompete agreement or clause to which they may be subject is void (unless it falls within one of the limited statutory exceptions).

On 3 March 2023, the Criminal Division of the United States Department of Justice published details of a three-year Pilot Program Regarding Compensation Incentives and Clawbacks. The Compensation Pilot Program is effective 15 March 2023 and from that date it will be applicable to all corporate criminal matters handled by the DOJ Criminal Division. At the same time, DOJ also updated its Evaluation of Corporate Compliance Programs guidance document to reflect the criteria introduced by the Compensation Pilot Program, among other updates.

On 26 October 2022, the SEC adopted final incentive compensation clawback rules requiring US-listed issuers to: (i) develop and implement a policy for the recovery of incentive-based compensation that is erroneously “received” by current and former executive officers during the three completed fiscal years immediately preceding the date that the issuer is required to prepare an accounting restatement, and (ii) file that policy as an annual report exhibit and satisfy related disclosure obligations in accordance with SEC rules.

On 24 November 2020, the SEC proposed amendments to the Form S-8 registration statement relied on by Exchange Act1 reporting companies and the Rule 701 exemption from registration2 available to non-reporting companies for equity awards and other compensatory securities offered to employees, directors, consultants and advisors. The proposed changes are intended to modernize and simplify the securities offering requirements for such compensatory offerings, while maintaining investor protection.

In a companion release issued on the same date, the SEC issued proposed temporary rules that would expand the availability of Rule 701 and Form S-8 for securities offerings to so-called “gig” workers, in recognition of a changing modern workforce.

The SEC is seeking comments on both sets of proposed rules, on or before February 9, 2021.

In brief On September 24, 2020, the Franchise Tax Board of California (the FTB) released a proposed regulation — new section 17951-8 of Title 18 of the California Code of Regulations — which treats the compensation of a California nonresident, non-employee director of a corporation as California-source income subject to California personal income…

One of the most important issues that arises in any M&A transaction from a compensation perspective is the treatment of stock options, restricted stock, restricted stock units (RSUs) or other compensatory equity awards, whether vested or unvested, held by executives and other employees in the transaction. Below is a high-level…