New Rules for Mandatory Clearing in Europe

Arthur S. Long is a partner in the Financial Institutions and Securities Regulation practice groups at Gibson, Dunn & Crutcher LLP. This post is based on a Gibson Dunn publication. The complete publication, including footnotes, is available here.

On August 6, 2015, the European Commission issued a Delegated Regulation (the “Delegated Regulation”) that requires all financial counterparties (“FCs”) and non-financial counterparties (“NFCs”) that exceed specified thresholds to clear certain interest rate swaps denominated in euro (“EUR”), pounds sterling (“GBP”), Japanese yen (“JPY”) or US dollars (“USD”) through central clearing counterparties (“CCPs”). Further, the Delegated Regulation addresses the so-called “frontloading” requirement that would require over-the-counter (“OTC”) derivatives contracts subject to the mandatory clearing obligation and executed between the first authorization of a CCP under European rules (which was March 18, 2014) and the date on which the clearing obligation takes place, to be cleared, unless the contracts have a remaining maturity shorter than certain minimums. These mandatory clearing obligations for certain interest rate derivatives contracts will become effective after review by the European Parliament and Council of the European Union (“EU”) and publication in the Official Journal of the European Union and will then be phased in over a three-year period, as specified in the Delegated Regulation, to allow smaller market participants additional time to comply.

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Proxy Access Bylaw Developments and Trends

Janet T. Geldzahler is of counsel at Sullivan & Cromwell LLP. This post is based on a Sullivan & Cromwell publication by Ms. Geldzahler, H. Rodgin Cohen, Robert W. Reeder III, and Marc Trevino. The complete publication, including Annexes, is available here. Related research from the Program on Corporate Governance includes Lucian Bebchuk’s The Case for Shareholder Access to the Ballot and The Myth of the Shareholder Franchise (discussed on the Forum here), and Private Ordering and the Proxy Access Debate by Lucian Bebchuk and Scott Hirst (discussed on the Forum here).

The significant success of shareholder proxy access proposals this year is likely to result in even more shareholder proposals for proxy access in the 2016 proxy season. As of August 13, 2015, 82 shareholder proxy access proposals have come to a vote in 2015, and 48 have passed. In many cases, shareholder proposals were approved despite a pre-existing bylaw (most often adopted after the receipt of the shareholder proposal) or a conflicting proposal by the company with modestly more restrictive terms. The average vote in favor of all proposals was 54.4%, and ISS recommended for all shareholder proxy access proposals.

This post summarizes developments in the area of proxy access, including an analysis of the record of company responses to shareholder proxy access proposals received during 2015 (with further detail set forth in Annex A of the complete publication). Those companies that receive a proxy access shareholder proposal or that are evaluating preemptive adoption of a proxy access provision will want to consider the appropriate terms and requirements. In all cases, as a matter of preparedness, companies should be aware of options to respond to potential shareholder proxy access proposals. For more information regarding shareholder proposals generally, our 2015 Proxy Season Review (discussed on the Forum here), which we distributed on July 20, details the results of these proposals during the 2015 proxy seasons.

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D.C. Circuit Court Upholds Conflict Minerals Decision

Richard J. Sandler is a partner at Davis Polk & Wardwell LLP and co-head of the firm’s global corporate governance group. This post is based on a Davis Polk client memorandum.

In the ongoing challenge to the SEC’s conflict minerals rule, the D.C. Circuit Court of Appeals, in a 2-1 decision, issued an opinion on August 18 upholding its April 2014 finding that a key aspect of the rule violates constitutional free-speech guarantees, a decision we discussed in this client newsflash.

Last year, the SEC asked the D.C. Circuit to rehear the case in light of the outcome of an unrelated First Amendment lawsuit, American Meat Institute v. United States Department of Agriculture, which addressed the proper standard of review for compelled commercial speech. Stating that it saw no reason to change its analysis in light of the American Meat decision, the court affirmed that it would adhere to its original judgment that portions of the Dodd-Frank Act, under which the rule was promulgated, and the SEC’s final rule, “violate the First Amendment to the extent the statute and rule require regulated entities to report to the Commission and to state on their website that any of their products have ‘not been found to be ‘DRC conflict free.’’”

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Pro Forma Compensation

David Larcker is Professor of Accounting at Stanford University. This post is based on an article authored by Professor Larcker; Brian Tayan, Researcher with the Corporate Governance Research Initiative at Stanford University; and Youfei Xiao of the Stanford Graduate School of Business.

In recent years, companies have begun to voluntarily disclose supplemental calculations of executive compensation beyond those required by the Securities and Exchange Commission in the annual proxy. Our paper, Pro Forma Compensation: Useful Insight or Window-Dressing?, which was recently made publicly available on SSRN, examines the motivation to disclose adjusted compensation and the prevalence of this practice.

Corporate disclosure of executive compensation is regulated by the SEC and is reported in the annual proxy Compensation Discussion & Analysis section and various summary compensation tables. These figures are widely cited by corporate observers, and in many cases used to rank (and criticize) corporations for their pay practices.

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Forty-Four U.S. Senators Support the Rulemaking Petition for Transparency in Corporate Political Spending

Lucian Bebchuk is Professor of Law, Economics, and Finance at Harvard Law School. Robert J. Jackson, Jr. is Professor of Law at Columbia Law School. Bebchuk and Jackson served as co-chairs of the Committee on Disclosure of Corporate Political Spending, which filed a rulemaking petition requesting that the SEC require all public companies to disclose their political spending. Bebchuk and Jackson are also co-authors of Shining Light on Corporate Political Spending, published in the Georgetown Law Journal. A series of posts in which Bebchuk and Jackson respond to objections to an SEC rule requiring disclosure of corporate political spending is available here. All posts related to the SEC rulemaking petition on disclosure of political spending are available here.

We are pleased to report that this week a group of forty-four U.S. Senators sent a letter to SEC Chair Mary Jo White expressing support for the rulemaking petition on corporate political spending submitted by the committee of corporate and securities law experts that we co-chaired. We are delighted that forty-four Senators have added their voices to the unprecedented support that the petition has already received.

In July 2011, we co-chaired a committee on the disclosure of corporate political spending and served as the principal draftsmen of the rulemaking petition that the committee submitted. The petition urged the SEC to develop rules requiring public companies to disclose their spending on politics. To date, the SEC has received more than 1.2 million comments on the proposal—more than any rulemaking petition in the Commission’s history.

The forty-four Senators’ letter begins by stating that they “write to express [their] support” for the rulemaking petition. They go on to state their belief that the disclosure rules advocated by the petition are “consistent with the SEC’s requirement for public companies to disclose meaningful financial information to the public.” They express appreciation to the SEC Chair’s “willingness to strongly consider the importance of this rulemaking.” They conclude by asking that the SEC Chair make the petition “a top priority for the SEC in the near term, and inform [the Senators] of the basis for [the SEC Chair’s] decision should [the SEC Chair] not plan to include it on the Commission’s agenda for the upcoming year.”

The Senators’ letters refers to a prior letter in support of the rulemaking petition that was sent to the SEC by a bipartisan group of former SEC officials. In this letter, former SEC Chairmen Arthur Levitt and William Donaldson and former Commissioner Bevis Longstreth stated that the rulemaking proposed in the petition is a “slam dunk” and that the SEC’s failure to act “flies in the face of the primary mission of the Commission, which since 1934 has been the protection of investors.”

As we have discussed in previous posts on the Forum, the case for rules requiring disclosure of corporate political spending is compelling. Unfortunately, the Commission has so far chosen to delay consideration of rules in this area. The delay is unfortunate and unwarranted in light of the strong arguments for disclosure put forward in the rulemaking petition and the remarkable and broad support that the petition has received. Moreover, as we showed in our article Shining Light on Corporate Political Spending, a close examination of the objections that opponents of such rules have raised indicates that these objections, both individually and in combination, fail to provide an adequate basis for opposing rules that would make disclose corporate political spending to investors.

The letter of the forty-four Senators highlights the remarkable level of support that the rulemaking petition has received. The SEC should proceed with rulemaking in this area without further delay.

The forty-four U.S. Senators who signed the letter supporting the rulemaking petition are:

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Enhancing the Commission’s Waiver Process

Luis A. Aguilar is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on Commissioner Aguilar’s recent public statement; the full text, including footnotes, is available here. The views expressed in the post are those of Commissioner Aguilar and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

Requests for waivers from regulatory disqualifications remain a topic of considerable import—and lively debate—for the Commission. Such requests are typically made when certain individuals or entities become involved in Commission enforcement actions. One consequence of these enforcement actions can be that an entity or individual is automatically disqualified, as mandated by Congress, from conducting certain activities, or from relying on certain exemptions from registration. Commission rules allow entities and individuals subject to such disqualifications to approach the SEC staff and seek a waiver from these prohibitions. This post discusses how the Commission could strengthen its protocols for handling such waiver requests and provide enhanced transparency and clarity on the Commission’s waiver process. In addition, this post discusses the benefit of a more flexible and calibrated approach to waivers.

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Why University Endowments are Large and Risky

Thomas Gilbert is an Assistant Professor of Finance & Business Economics at the University of Washington. This post is based on an article authored by Professor Gilbert and Christopher Hrdlicka, Assistant Professor of Finance & Business Economics at the University of Washington.

Universities as perpetual ivory towers, though often meant as a pejorative, describes well universities’ special place in society as centers of learning with a mission distinct from that of businesses. Universities create new knowledge via research while preserving and spreading that knowledge through teaching. The social good aspect of universities makes donations critical to funding their mission. But rather than investing these donations internally to build the metaphorical towers higher and shine the light of learning more widely, universities have built large endowments invested heavily in risky financial assets.

In our paper, Why Are University Endowments Large and Risky?, forthcoming at The Review of Financial Studies, we model how universities’ objectives, investment opportunities (internal and external) and public policy, specifically the Uniform Prudent Management of Institutional Funds Act (UPMIFA), interact to create this behavior. Our findings suggest a reevaluation of UPMIFA’s ability to achieve its goal of maintaining donor intent in light of the costs it imposes on universities.

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Board Retirement and Tenure Policies

Ann Yerger is an executive director at the EY Center for Board Matters at Ernst & Young LLP. The following post is based on a report from the EY Center for Board Matters, available here.

Investors’ increasing focus on board composition includes attention to whether boards are continuing to refresh and recruit new directors in line with the company’s changing strategic goals and risk profile. But the challenges of effective board succession planning can go beyond finding new directors whose skill sets, diversity, character, and availability match the board’s needs—they may also include asking long-standing directors to leave the board when appropriate, while protecting directors’ collegiality and relationships.

Based on what the EY Center for Board Matters is hearing from investors and directors, optimal practices for aiding board renewal include robust performance evaluations (including following through on key takeaways), assessments that map director qualifications against a board skills matrix, and creating a board culture where directors do not expect to serve until retirement. [1] Director retirement and tenure policies are also among the tools available to boards to ease transitions. Such policies can help depersonalize the process of asking directors to leave the board.

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Corporate Risk-Taking and Public Duty

Steven L. Schwarcz is the Stanley A. Star Professor of Law & Business at Duke University School of Law. This post is based on a draft article by Professor Schwarcz, available here.

Although corporate risk-taking is economically necessary and even desirable, it can also be harmful. There is widespread agreement that excessive corporate risk-taking was one of the primary causes of the systemic collapse that caused the 2008-09 financial crisis. To avoid another devastating collapse, most financial regulation since the crisis is directed at reducing excessive corporate risk-taking by systemically important firms. Often that regulation focuses on aligning managerial and investor interests, on the assumption that investors generally would oppose excessively risky business ventures.

My article, Misalignment: Corporate Risk-Taking and Public Duty, argues that assumption is flawed. What constitutes “excessive” risk-taking depends on the observer; risk-taking is excessive from a given observer’s standpoint if, on balance, it is expected to harm that observer. As a result, the law inadvertently allows systemically important firms to engage in risk-taking ventures that are expected to benefit the firm and its investors but, because much of the systemic harm from the firm’s failure would be externalized onto other market participants as well as onto ordinary citizens impacted by an economic collapse, harm the public.

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ISS 2016 Proxy Voting Policy

Holly J. Gregory is a partner and co-global coordinator of the Corporate Governance and Executive Compensation group at Sidley Austin LLP. The following post is based on a Sidley update by Ms. Gregory, John P. Kelsh, Thomas J. Kim, Rebecca Grapsas, and Claire H. Holland.

Institutional Shareholder Services (ISS) is seeking feedback on policy questions as part of its process for updating its policies for the 2016 proxy season. Corporate issuers should consider communicating company views on proxy voting issues by participating in the survey, which can be accessed here. [1] Feedback is due by September 4, 2015 at 5:00 p.m. ET. Survey results are scheduled to be released in September and draft policy revisions are scheduled to be released for comment in late September or early October.

Survey topics provide an early indicator of potential areas for policy revision. This year’s questions signal that ISS may refine its position on:

  • Proxy access bylaw features
  • Director overboarding
  • Defensive governance provisions adopted pre-IPO or by a board without shareholder approval
  • Sunset provisions for net operating loss poison pills
  • Equity compensation of non-employee directors
  • Use of adjusted metrics in incentive programs
  • Say-on-pay in relation to disclosure by externally-managed issuers
  • Use of financial metrics and financial ratios to assess capital allocation decisions, share buybacks and board stewardship

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