“…contacted him, and members of the class he seeks to represent, on their cellular telephones without their express consent in violation of the Telephone Consumer Protection Act (‘TCPA’).”

However effective they might be, we’ve never met anyone who actually liked getting telemarketing calls. And sales calls to your cell phone are particularly annoying, especially because most of us wind up paying for incoming calls one way or another.

In this case, the plaintiff who filed the suit is seeking statutory damages for alleged negligent and willful violations of the TCPA, attorneys’ fees, costs and injunctive relief, which could cost $500 for each violation and $1,500 if it’s a “willful violation.” Discover said it can’t currently predict how the case might turn out, but it “…will seek to vigorously defend against all claims asserted by the plaintiff.”

Never ones to pass up the opportunity to do a little cyber-snorkeling in the Code of Federal Regulations, we found the relevant rules here, in the Telephone Consumer Protection Act. There are indeed restrictions that limit the circumstances in which a party can make a sales or marketing call to a cell phone user, but there are also some exceptions that would possibly get the company off the hook (if the consumer had previously given his consent to be called or if the call had an emergency purpose).

It turns out that this isn’t the first time that Discover has litigated this type of class action lawsuit. Earlier in 2011, the company settled a similar case that had been filed in federal court in the Southern District of California, according to a 10-Q filed last July.

Neither filing goes into the details of the respective lawsuits, so there are a lot of possibilities here. It could be that the underlying facts of the case are similar, or they might be very different. The fact that the first case was settled might have inspired a second plaintiff/attorney duo to file their own lawsuit. And – as far as Discover is concerned, as a company with a $14.79 billion market cap – this could be the metaphorical equivalent of swatting mosquitoes at a picnic. As soon as it swats one down, another one comes circling.

We wondered, though: What other companies are dealing with class action lawsuits filed under the Telephone Consumer Protection Act? We found some other examples from the past few months’ filings, including:

Encore Capital Group, Inc. (ECPG), which got zapped with a couple of class actions filed in late 2010 in federal court in California’s Southern District. Encore Capital lost its bid to get the cases dismissed or stayed. Several months later, two more class action cases were filed in the Northern District of Illinois; but, according to the most recent 10-Q, Encore Capital won its motion to transfer the Illinois cases and consolidate them with the two already pending in California.

Career Education Corp. (CECO), a for-profit education company, has a couple of cases pending in federal court in the Northern District of Illinois, according to the company’s most recent 10-Q. Both of those cases alleged that the plaintiffs received unauthorized text message advertisements from the company, in violation of the TCPA. As of last fall, the parties were trying to negotiate settlements, but some issues remained “unresolved.”

Nelnet, Inc. (NNI), a student-loan servicing company, is defending a case filed against a subsidiary in federal court in New Jersey; that lawsuit, filed on behalf of a putative class, alleged that the company sent unauthorized advertising faxes, some of which were supposedly sent “willfully.” According to the most recent 10-Q, the complaint claims that the company “…sent putative class members more than 10,000 faxes that violated the TCPA, amounting to more than $5 million in statutory penalty damages and more than $15 million if trebled for willful violations.”

There are also several cases pending against smaller companies, but there aren’t so many that we would classify this as the cause of action du jour. Nevertheless, we’ll keep an eye on this topic and let you know if that changes.

Until then, if you get a call on your cell from a telemarketer, it may be comforting to know that you have options.

Image source: Set of touchscreen smartphones, via Shutterstock

Correction: The headline on an early version of this post incorrectly said O’Donnell would get “free” clothing instead of discounted clothing. My apologies for the error.

American Eagle Outfitters (AEO) describes itself as offering “high-quality, on-trend clothing, accessories and personal care products at affordable prices.” But while it pours effort into making the case that its clothes are a good deal, it put far less into making clear just how good a deal its retiring chief executive got on his way out the door.

As retirement (or severance) packages go, James O’Donnell is no Samuel Palmisano. But he is getting a handsome sum as he steps down from the top job at American Eagle Outfitters on January 28, a move that was telegraphed at least as far back as March. (Sonya footnoted his replacement’s compensation package the day before Thanksgiving.)

The 8-K that AEO filed to disclose O’Donnell’s package is pretty spare: The only dollar figures in it are $552,500 and $2.21 million — the least and most, respectively, that O’Donnell can make from a one-year post-employment consulting gig he’s getting from American Eagle. (Unusually, any amount over the base $552,500 will be “based on attainment of performance goals for the Company’s 2012 fiscal year,” which sounds more like a bonus to us than like consulting fees, but OK.)

Other elements of the package are described blandly as “his deferred compensation,” “a lump sum retirement benefit determined in accordance with the O’Donnell Employment Agreement,” “severance equal to one year of his base salary less the accrued but unpaid cost of his personal use of the Company aircraft…” and so on.

It turns out that all of this vagueness probably adds up to something like $15.6 million.

The breakdown is fairly straightforward: a year’s base salary, or $1.7 million based on last year’s pay; that lump-sum retirement benefit, or $3.6 million (essentially salary plus bonus “for the highest compensated fiscal year of the prior seven fiscal years,” according to last year’s proxy); a 2011 cash bonus ($612,817 last year); his long-term incentive plan account balance ($1.2 million as of the proxy); his deferred-comp account ($2.4 million, the proxy says); and continued vesting for his stock options, restricted stock units and performance shares ($6.1 million as of last year’s proxy).

His options are underwater, so they’re valued at $0 in the above calculation, which could change if AEO’s stock price rises appreciably in the near future. And as intriguing as it sounds, that “accrued but unpaid cost of his personal use of the Company aircraft” turns out to reduce his severance by just $65,000, according to the text of his Succession Agreement.

Oh, and O’Donnell also gets a lifetime “discount on Company merchandise generally applicable to active employees” for himself and his spouse. The company’s benefits website simply describes its discount for employees as “great.” But judging from various rate-your-employer websites (including comments on this one, as well as comments on Yahoo Answers), it does sound pretty good, if you like the clothes, ranging from 25% for clearance items to 40% or even 50% for regular and new merchandise.

It would take a heck of a lot of $10 tank-tops to make much of a difference for O’Donnell financially, much less for AEO investors, who haven’t exactly had a blockbuster year. Then again, they’ve done pretty well overall since O’Donnell took the helm, so maybe they won’t begrudge him a few $19.99 Mohawk Trapper Hats. And hey, we’d sure love to see him in one.

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Bonus: iPad Watch – We’ve been noticing for a while that departing executives are frequently getting to keep their treasured company-issued iPads. We like Apple’s software and hardware here at footnoted, but for the life of us, we haven’t been able to figure out a legitimate business case for an iPad at most companies (including ours — or believe me, I’d be lobbying to expense mine, stat). Now we’ve found support for our skepticism in an 8-K filed by Smart Balance (SMBL) after 5 p.m. on Friday. According to the accompanying Separation Agreement and Release, departing CFO Alan Gever is being allowed to keep his laptop, iPad, cell phone and cell-phone number. However,

“Prior to his Separation Date, Gever shall provide the Company access to his laptop and Blackberry to purge all Company data and information.”

No mention is made of purging Gever’s iPad — presumably because, like his cell phone, it doesn’t hold any company data or information worth purging.

Image source: AEO clearance website (no, really, it’s for sale — or check out the model with reindeer horns for just $14.99)

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On January 18, we published our 2012 footnotedPro M&A report, listing 10 companies we see as likely deal targets, based on our close reading of SEC filings. To inquire about purchasing a copy, or to find out more about subscribing to footnotedPro, where we highlight hidden opportunities and easy-t0-miss red flags well in advance of the market, please email Todd Serpico.

We were reminded of that when we read this 8-K that Yahoo (YHOO) filed yesterday presumably to inform the two investors who hadn’t already heard that co-founder Jerry Yang had resigned. Attached to the filing was Yang’s resignation letter, which many of our friends in the media picked up on (see here and here among others).

Being the SEC filings geeks that we are, we were more interested in the Item 5.02 disclosure, which reads:

Effective January 17, 2012, Jerry Yang resigned from the Board of Directors of Yahoo! Inc. (the “Company”) and all other positions with the Company. Mr. Yang is resigning to pursue other interests, and not due to any disagreement with the Company on any matter related to the Company’s operations, policies or practices.

We don’t know Jerry Yang and we’re certainly not experts on Yahoo, but we have read an article (or 15)  about the many disagreements Yang has had over the years — with board members, investors, potential suitors, etc. Indeed, Forbes’ Eric Savitz, who has spent years covering the company, described the resignation as Yang “losing his battle”. So the idea that Yahoo could legitimately claim in a filing that this was not due to “any disagreement” kind of reminded us of Bill Clinton’s tortured use of the word “is” back in 1998.

Given that Yang’s problems have been well documented over the years and that the company still decided to use the boilerplate “no disagreements” language, we were curious to see how many other companies use this language when their decidedly less high-profile executives resign. So we did a search for every time that language was used in an Item 5.02 disclosure in an 8-K. The answer? 1,754 times in the past year!

We won’t admit to reading all of those disclosures so perhaps there were some companies that did admit to having some sort of disagreement as they informed investors about some executive or director being ushered out the door. But we’re quite confident that the overwhelming majority of those disclosures — probably well over 95% — undoubtedly claimed that there was no disagreement.

We know that Jerry Yang had many disagreements while at Yahoo. And yet Yahoo was still able to claim that his resignation wasn’t due to “any disagreement”. So what does that say for those 1,754 other folks who also resigned from various public companies in the past year?

Indeed, it kind of reminds us of that famous Garrison Keillor quote about all the children being “above average” in Lake Wobegon. In SEC filings, apparently, departing executives and directors rarely seem to leave because of a disagreement. Which makes the very nature of this disclosure something of a joke.

Image source: boxing gloves via Shutterstock

On Wednesday, we published the 2012 footnotedPro M&A report, listing 10 companies we believe are likely acquisition targets. Three companies on last year’s Top 10 list announced deals within a little over three months. For more information about our 2012 M&A report, or to inquire about subscribing to footnotedPro, please contact Todd Serpico.

But yesterday, after the market closed, the company announced that Diane Greene, who founded VMWare (VMW) and took it public in 2007, had joined Google’s board. Greene, who also sits on the board of Intuit (INTU) , will serve on Google’s Audit Committee.

Because this is Google, Greene’s appointment was widely reported. Just Google her name and see for yourself. While we were able to get all sorts of interesting history on Greene from the various stories we skimmed, we were kind of surprised that nobody really delved into the 8-K that Google filed announcing the appointment.

If they did, and then compared it with the proxy that Google filed last spring, they would have seen that Google decided to double the value of the “Google Stock Units” that Greene, as a new director, is receiving. Here’s the relevant part of yesterday’s filing:

In connection with her appointment to the Board, Ms. Greene will be granted an initial equity award of $1,000,000 in the form of Google Stock Units (GSUs) on the first Wednesday of the month following her appointment to the Board. The exact number of GSUs comprising the grant will be calculated by dividing $1,000,000 by the closing price of Google’s Class A common stock on the day prior to grant.

Now compare that to this disclosure in the proxy:

Consistent with our revised compensation arrangement as disclosed in 2009, Ann Mather and Shirley M. Tilghman each received a one-time $500,000 GSU grant in 2010 as their previously awarded equity grants became fully vested in the last quarter of 2010.

We’re pretty sure that Greene didn’t do this for the money. Judging by the last VMWare proxy that mentioned her back in 2009, Greene, like the other Google directors, aren’t sitting on Google’s board to cover the mortgage. In addition to the initial grant, Google also pays its directors for serving on the board: a $75,000 cash retainer and another $350,000 worth of GSUs.

Still, we found it pretty interesting that Google decided to double down on its initial grant when it announced Greene’s appointment.

Image source: Paul Sakuma/Associated Press

Judging by a quick Google search, Feil was a prominent public face for the drugstore chain. There are a whole bunch of videos where Feil talks about social media, Walgreens mobile strategy and other hot topics. Given how public of a role she played, we were surprised that we couldn’t find any announcement in Walgreens filings that she had left the company on Sept. 30. We imagine it has something to do with this announcement that Walgreen’s made last March about Feil’s new boss. But that’s really only a guess.

The separation agreement itself isn’t all that lavish. Unlike some other recent agreements we’ve footnoted, Feil doesn’t even get to keep her iPad (assuming she even had one). Indeed, the agreement notes that “no later than his/her Termination Date, Employee will have returned all Company property, and no Company property has been retained by the Employee, regardless of the form in which it was acquired or held by Employee.” In other similar agreements, it’s fairly common to keep the cell phone and laptop computer.

What Feil did receive was a pretty small severance: just nine months worth of salary, which worked out to $330K and another $530K worth of stock options and RSUs. A much larger chunk of options, RSUs, and PRSUs remain unvested, which also struck us as a bit unusual when compared with other companies of similar size. Indeed, immediate vesting of options on the way out the door seems like practically a given, although its much more so for the very top executives as opposed to the second tier, like Feil.

Given that the agreement wasn’t so over the top, it really made us wonder why it was such a big secret. Why was there no announcement — at least none that we’ve been able to find — about Feil’s departure last fall? And why wait to bury this sort of thing in a Q?

Image source: BusinessReview USA

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In 2011, we sent  footnotedPro subscribers a lot of actionable information, including  a heads-up on four M&A targets and AMR’s likely bankruptcy, along with dozens of other early warnings and hidden opportunities. We dig through filings to find the bad news — and good — that other investors overlook. To find out more, or to inquire about a trial subscription, email Todd Serpico.

Indeed, we’re talking about a different kind of handout: the one where top executives of major corporations ask shareholders, who, in theory at least, are their bosses, to shell out vast sums of money for all sorts of things — from corporate jets to super-sized severance packages to iPads.

Here at footnoted, we’ve been running this annual contest since 2005. For the first few years, I would pick the winner. But several years ago, possibly before the term “social media” became so ubiquitous, we began turning it over to you, our readers. We’ve had some real winners over the years, including the jet-setting high school student at Qwest (Q) and the CEO map collection at Chesapeake Energy (CHK).

This year, there’s an equally impressive crop, including two that we didn’t write about here on footnoted because they were so widely reported in other media outlets. Here’s a quick run-down of our nominees for the worst footnote of the year (in no particular order):

• MF Global (old ticker: MF) agreeing to pay then-CEO Jon Corzine a $1.5 million retention bonus months before the company imploded
• Clear Channel Media Holdings (CCMO) paying $3 million a year to a company controlled by Bob Pittman so that Pittman can fly in a Mystere Falcon 900 that Pittman owns for both business and personal use
• Leo Apotheker collecting around $25 million in severance and other benefits, including relocation back to France or Belgium after less than a year on the job (we didn’t write about this one on footnoted only because it was so widely reported. Still, we felt it deserved to be a nominee)
• IBM’s outgoing CEO Samuel Palmisano becoming eligible for as much as $170 million in retirement benefits, just by waiting until he was past 60 to announce his retirement
• Nabors Industries agreeing to pay outgoing CEO Eugene Isenberg $100 million in severance on his way out the door (another one that we didn’t write about because it was widely reported)

Voting is now open here. We’ll announce the winner (or loser, depending on your view of the world) next Friday, Dec. 30. We’ll also be giving away a free month of footnotedPro to one winner selected at random. Just remember, in order to win, you need to fill in enough information so that we can contact you.

Let the voting begin.

And we really do mean those words, and a handful of others — we’re not even talking about more detailed information that might fit under those headings, but the mere words themselves. They served as headers in an amendment to Yahoo’s searching-and-advertising agreement with Microsoft (MSFT) — specifically, the Fourth Amendment to Search and Advertising Services and Sales Agreement initially filed with the Securities and Exchange Commission as Exhibit 10.18(H) to the 10-Q that Yahoo filed on August 8.

At the time, vast swaths of the amendment were redacted — replaced, in the electronic version, with little bracketed asterisks that, a footnote informs us,

“Indicates that certain information in this exhibit has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to omitted portions”

All well and good. We get why Yahoo and Microsoft might not want all the details of their pact available to competitors. But in retrospect, it’s surprising just how much is really hidden from investors (putatively the company’s owners, after all). Here’s section 7 of the Fourth Amendment, for example, in its illuminating entirety:

7. [*].

(a) [*]. Section 10.2.6 of the Agreement is amended such that [*], is deleted and replaced with the following:

“[*].”

(b) [*]. Section 10.2.6 of the Agreement is amended such that [*], is deleted and replaced with the following:

“[*].”

But then, on December 2, Yahoo filed a 10-Q/A amending its August filing, primarily to swap in a revised version of that Fourth Amendment, along with a revised version of a Fifth Amendment originally included with the same August filing. (Try to follow along: We’re talking about revised versions of amendments to an agreement that originally went into effect December 4, 2009.)

Lo and behold, this is what was hidden in section 7 before the first sub-part — again, in its entirety:

“Timing of Reports.”

Nothing more is shown of what sub-parts (a) and (b) say, so we’re not exactly sure how much additional knowledge is really gained by this particular disclosure. Nor is it an isolated example. Section 6 was previously all but blank (noting that “The third sentence of Section 10.2.5 of the Agreement is deleted and replaced” with redacted text); the revised version helpfully shows that the heading for section 6 is “Key Controls” — but nothing more. Section 5, it turns out is headed, “Quarterly Financial Review,” but for all we know its substance is a skillfully drafted haiku about the Yahoo toolbar.

The Fifth Amendment, originally filed as Exhibit 10.18(I) on August 8, and then in revised form on December 2, is slightly more revealing. In addition to telling us that the section 3 heading is “Financial Incentive” (but little about what those incentives are), and that section 7 of this amendment is titled “CPP Ads,” it also discloses that multiple deadlines occurred on October 11 this year. Sadly, it’s not terribly clear for the most part what those deadlines really entailed, or what was to happen if the deadline was or wasn’t met.

In short, after going to some lengths to hide a lot of information about its pact with Microsoft, Yahoo has gone to still more effort to disclose a smidgen of almost utterly meaningless additional information about it. This doesn’t seem to be at the SEC’s behest, because no staff comment letters are on file since July. (Though thanks to the SEC’s sometimes lengthy delays in disclosing comment letters, it’s possible that something more recent is awaiting disclosure.)

Companies get permission from the SEC to hide all kinds of things from investors, generally on the grounds that the information constitutes trade secrets, or that disclosure would hurt their competitiveness. We run into redacted material fairly often, and, much more rarely, see the SEC pushing back against corporate bids to keep stuff confidential. But as The Wall Street Journal’s Scott Thurm and Jean Eaglesham showed in a different context last week, it’s easy to forget just how much is kept under wraps.

So in the abstract, it’s nice to see a company revisit confidential material and disclose a little more. But when it comes to Yahoo’s baby steps, we have to say thanks for next to nothing.

Image source: pile of newspapers with chains image via Shutterstock.com

The NBA’s season is in shambles after a lockout by owners this summer dragged on and talks faltered;  NBA officials canceled games through November 30. Yesterday, the NBA players’ union said it would disband, paving the way for an antitrust lawsuit against the owners — and raising the specter of a longer, messier fight.

Given the circumstances, some companies’ disclosures are no-brainers: Madison Square Garden (MSG) owns the NBA’s New York Knicks, and notes at one point in the 10-Q it filed earlier this month that its NBA and National Hockey League teams together mean the company earns “a disproportionate share of its revenues” while those sports are in season. In a section on events after the end of the quarter, the company warns that failing to reschedule the games canceled so far would hurt the company’s fiscal second-quarter results, and that further cancelations “could have a material negative effect on our 2012 fiscal year results.”  Moreover, the impact of any new revenue-sharing agreement adopted by the NBA after an agreement is reached (assuming one is, of course), is bound to affect the company as well, for better or worse.

Time Warner (TWX) says the lockout didn’t have a material impact on the most recent quarter’s results, and optimistically predicts that it “does not expect it to have a material impact on the segment’s operating results for the remainder of the year.” Not that all’s necessarily well, as its 10-Q goes on to warn:

“However, the longer-term impact of the NBA Lockout will be influenced by many factors including viewer ratings on TNT and advertising demand after the NBA Lockout ends. Because of the inherent uncertainties surrounding the NBA Lockout, the Company is unable to quantify the adverse impact that a prolonged NBA Lockout would have on the Networks segment s operating results.”

Others more peripheral to the off-court action (and all too soon, perhaps, the in-court legal action) tend to be less detailed in their warnings. Buffalo Wild Wings (BWLD), the chicken-wing restaurant chain, simply warned in the 10-Q that it filed on November 3 that “Our sales may be negatively affected by a disruption in the viewing of sporting events in our restaurants such as NFL, MLB, NBA, and NHL due to strikes, lockouts, or labor disputes.”

Take Two Interactive (TTWO), which sells sports-themed video games (and others), warned investors in a new risk-factor disclosure in its 10-Q last week that “The lockout by NBA owners could have a material adverse impact on our business and operating results.” It continued:

“The NBA players union and the owners of the NBA teams are currently renegotiating their collective bargaining agreement, which expired following the 2010-2011 basketball season. Sales of 2K’s annually released basketball game could be adversely affected due to the players being locked out and the reduction in the number of games in, or cancellation of, the 2011-2012 basketball season.”

Some companies are less explicit about the potential for harm than others. Video-game maker Electronic Arts (ERTS) also has contracts with the NBA (presumably for its NBA Jam games). Yet when it filed its 10-Q the same day as Take Two, it didn’t say anything about the lockout. Of course, size may make a difference here: Electronic Arts is more than six times as big as Take Two, by market-cap.

As with so many things tied to the basketball dispute, how big a deal it all turns out to be depends on how long things drag out. So grab a seat, grab a drink, and enjoy the action as best you can.

Image source: NBA Facebook page

Indeed, the disclosure about McClendon’s map collection began to take on a life of its own, prompting several shareholder lawsuits (more on that in a minute), showing up in a New Yorker magazine profile of footnoted friend Nell Minow and prompting Chesapeake to issue an amended proxy in an effort to set the record straight about some of the, um, more unusual disclosures in the initial proxy, including the map collection. The amended filing was really just a letter from General Counsel Henry Hood to Daily Oklahoman reporter Randy Ellis. Both the initial disclosure and the amended filing are well worth reading, for sheer entertainment value.

Among the justifications given for the purchase was that the company “believed it was not appropriate to continue to rely on cost-free loans of artwork from Aubrey.” As we footnoted after reading the second filing, it really was hard to read these disclosures with a straight face. The letter also noted that the map collection was really worth more than $8 million more than Chesapeake had paid, at least according to the appraiser who had helped assemble the collection in the first place!

We mention all this back-story because yesterday we learned that Chesapeake had reached a settlement with the investors who first filed suit back in the spring of 2009. The settlement was first reported (subscription required) by Brianna Bailey of The Daily Record and we picked it up in our Twitter feed yesterday afternoon. As Bailey reported and Chesapeake later confirmed, McClendon will pay back the $12.1 million plus interest of 2.28%.

One key part of the settlement appears to be this: “The Company will not reimburse Mr. McClendon for the Recission Payment, whether as part of any future compensation or otherwise.” Insurance also won’t be used to cover the cost. Chesapeake also has to pay $3.75 million to cover the plaintiff’s legal fees (assuming the court approves the payment) and presumably spent millions of its own money over the last 2 1/2 years fighting the lawsuit. A spokesman for Chesapeake declined to provide an estimate of what it had spent. The spokesman for Chesapeake did provide this statement however, which it attributed to Holt:

“We are pleased to have reached this settlement and believe it is fair and conducive to bringing this matter to a positive conclusion.  Since the settlement remains subject to final court approval, we will limit further comment. ”

Even with a few more years of SEC scuba-diving under our belts, McClendon’s map collection remains something of a gold-standard when it comes to unusual disclosures. While we’ve come across some other CEO art collections in the filings, we’ve yet to come across something quite as flagrant.

That Chesapeake stock has far underperformed some of its closest competitors, including Anadarko Petroleum (APC), Cabot (COG) and  EOG Resources (EOG) since the disclosure is a cold-hard fact. But how much of a role the disclosure and ensuing legal mess and, quite frankly, the environment that led directors to approve such a stupid deal in the first place is one of those — to borrow some words from former Defense Secretary Donald Rumsfeld — great unknown unknowns.

Perhaps the real question is whether other top executives — and their boards — learn from this. Let’s say the whole thing wound up costing around $20 million in cash plus millions more in lost opportunity costs (summoning up that Brandeis economics degree). Is that really enough to prevent this sort of thing from happening again? We’d like to think so, but the pessimist in us says that’s probably not the case.

Image source: MorgueFile

While the filing itself had some seemingly routine raises — bumping CEO Michael Klayko’s salary up to $800,000 from the $775,000 he had been making, for example, because an outside compensation consultant thought it made sense after looking at what competing companies were paying — there was something else that caught our eye: a new incentive plan called the “Rev it Up” plan. We immediately thought of some theme music — Elvis Costello’s “Pump it Up” came to mind, since the words could very easily be changed. (There’s also the Vixen song that wouldn’t require any modification). And we wondered, did the comp consultant come up with the name and, if so, how much were they paid to do so?

Here’s a snip describing the plan from the filing:

Under the terms of the Rev It Up Plan, certain officers and each of Messrs. Fairfax and Wall would be eligible to earn a target cash payout equal to 25% of their respective annual base salary based upon the achievement of certain minimum revenue and non-GAAP operating performance targets. The actual payout is subject to upward or downward adjustment depending on the Company’s actual performance compared to the performance targets. The performance targets mirror the Company’s Senior Leadership Plan for fiscal year 2012 for these participants, which are as follows: revenue (weighted at 60%); non-GAAP operating income (weighted at 30%); and individual performance based on individual or departmental objectives (weighted at 10%).

Since the actual plan wasn’t filed, all we have is this brief description in the 8-K. More details will undoubtedly be available in Brocade’s proxy filing, but that’s not going to be filed until late February.

Of all the crazy names for ways we’ve come across to pay people in filings — and trust me, in 8+ years of reading SEC filings as closely as we have, there have been a lot — this one definitely ranks among the goofiest. As we poked around the web a bit, we were surprised to find that the top result when we entered the phrase “Rev It Up” was this site — something called “Rev it Up. Full Throttle for God”.

Which made us wonder if the compensation consultant who came up with the name did a quick Google search before suggesting it to Brocade’s board.

Image source: eBay