Yearly Archives: 2012

Nonprofit Corporate Governance: The Board’s Role

Posted by Lesley Rosenthal, Lincoln Center for the Performing Arts, on
Sunday, April 15, 2012
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Lesley Rosenthal is the general counsel of Lincoln Center for the Performing Arts and the author of Good Counsel: Meeting the Legal Needs of Nonprofits. Bart Friedman, senior partner at Cahill Gordon & Reindel LLP, contributed to this post.

Governing boards in the for-profit and nonprofit contexts share many legal precepts: the oversight role, the decision-making power, their place in the organizational structure, and their members’ fiduciary duties. But in the nonprofit setting, misconceptions about corporate governance abound. Are board members primarily fundraisers? Cheerleaders? A rubber stamp to legitimize the actions and decisions of the executives? Do they run the organization to the extent staff is unable? Are they window-dressing to spruce up the organization’s letterhead? If they are rich or famous, must they attend board meetings? How do they know whether they are doing a good job, or when it is time to go? Despite the common ancestry and legal underpinnings, nonprofit corporate governance places heightened demands on trustees: a larger mix of stakeholders, a more complex economic model, and a lack of external accountability. This post explores how substituting a charitable purpose for shareholders’ interests affects the board’s role.

In organizations of all kinds, good governance starts with the board of directors. The board’s role and legal obligation is to oversee the administration (management) of the organization and ensure that the organization fulfills its mission. Good board members monitor, guide, and enable good management; they do not do it themselves. The board generally has decision-making powers regarding matters of policy, direction, strategy, and governance of the organization.

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Analyzing Global Proxy Voting Practices

Posted by Michael McCauley, Florida State Board of Administration, on
Saturday, April 14, 2012
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Michael McCauley is Senior Officer, Investment Programs & Governance, of the Florida State Board of Administration (the “SBA”). This post is based on an excerpt from the SBA’s 2012 Corporate Governance Report by Mr. McCauley, Jacob Williams and Lucy Reams. Mr. Williams and Ms. Reams are Corporate Governance Manager and Senior Corporate Governance Analyst, respectively, at the SBA.

Fiscal year 2011 witnessed the SBA’s shift from domestic and foreign asset classes, to a combined global equity portfolio, with a heavier international equity weighting and a more balanced U.S. exposure. With the recent structural changes, the proportion of SBA assets invested in foreign equity markets will continue to rise, and a significant proportion may be managed internally. In 1998, for foreign equities was 7.6 percent, rising to 12.7 percent by 2003, and 18.8 percent by the end of fiscal year 2010. Upon completion of the transition to a combined global equity asset class, foreign equities composed 33 percent of FRS assets as of October 2011. As a percent of the equity asset class, foreign shares account for 56 percent and U.S. shares for 44 percent.

Coinciding with this shift, the SBA realigned its international proxy voting practices, bringing foreign voting decisions ”in-house” to match domestic SBA voting practices.

Previously, external asset managers were responsible for voting international proxies associated with SBA shares held in their funds. Since the SBA assumed this responsibility, votes are now cast by SBA staff—based on our own Corporate Governance Principles & Proxy Voting Guidelines and meeting specific research from our proxy research providers.

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CFTC Proposes Block Size Rules for Swaps

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Friday, April 13, 2012
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The following post comes to us from David J. Gilberg, partner at Sullivan & Cromwell LLP, and is based on a Sullivan & Cromwell publication from Mr. Gilberg and Kenneth M. Raisler; the full publication, including footnotes, is available here.

Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) added Section 2(a)(13)(A) to the Commodity Exchange Act (the “CEA”), which requires the Commodity Futures Trading Commission (the “CFTC” or the “Commission”) to prescribe rules concerning the real-time reporting of swap transaction and pricing data. These rules are intended to provide transparency and enhance price discovery for swap contracts while protecting liquidity in the market as well as counterparty anonymity. On December 20, 2011, the Commission adopted rules concerning the “Real-Time Public Reporting of Swap Transaction Data” (the “Real-Time Reporting Rules”). At that time, the Commission chose not to adopt the provisions proposed in connection with these rules that concerned the procedures for determining minimum block sizes. Less than fifty days after adopting the Real-Time Reporting Rules, the Commission has re-proposed rules concerning procedures to establish appropriate minimum block sizes for large notional off-facility swaps and block trades (the “Proposed Rules”). If a trade size of a swap is greater than the appropriate minimum block size, whether executed on- or off-facility, the swap transaction and pricing data is subject to a reporting time delay. The Proposed Rules would provide a means for separating swaps into categories within five asset classes (the interest rates, credit, foreign exchange, equity and other commodity asset classes). Further, the Proposed Rules would establish prescribed initial appropriate minimum block sizes as well as methods for determining post-initial minimum block sizes. If the trade size of a swap is greater than the appropriate minimum block size, the swap transaction and pricing data is subject to a reporting time delay. The minimum block sizes in the Proposed Rules will be important not only for reporting purposes, but also may determine the size of trades that can be traded off-facility. The Proposed Rules would replace the interim cap sizes adopted in the Real-Time Reporting Rules with initial cap sizes and methods for determining post-initial cap sizes. In the release accompanying the Proposed Rules (the “Proposing Release”), the Commission offers a number of alternatives for categorizing swaps in each asset class as well as alternatives to the method for determining the appropriate minimum block size and cap size; the Commission would consider adopting any of these alternatives as a final rule.

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Mandatory IFRS Reporting and Changes in Enforcement

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Friday, April 13, 2012
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The following paper comes to us from Hans Christensen of the Department of Accounting at the University of Chicago; Luzi Hail of the Department of Accounting at the University of Pennsylvania; and Christian Leuz, Sondheimer Professor of International Economics, Finance and Accounting at the University of Chicago.

In our paper, Mandatory IFRS Reporting and Changes in Enforcement, which was recently made publicly available on SSRN, we examine the underlying sources of the capital-market benefits around the introduction of mandatory IFRS reporting. Prior work finds significant capital market benefits and also shows that the effects around IFRS adoption are significantly stronger in countries with stricter and better functioning legal systems, and that they are stronger in the EU than in other regions of the world. We argue that this evidence is consistent with several interpretations and that it is still an open question to what extent these positive effects around mandatory IFRS adoption are indeed attributable to the switch to arguably better, more capital-market oriented, and globally harmonized accounting standards.

We focus on market liquidity and rely on within- and across-country variation in the timing of IFRS adoption and of other institutional changes to disentangle several possible explanations. Specifically, we explore whether (i) the switch from local GAAP to IFRS reporting played a primary role for the observed capital-market benefits; (ii) the introduction of IFRS had capital-market benefits, but only in countries with strong institutions and legal enforcement; or (iii) the switch to IFRS reporting itself had little or no effect and, instead, concurrent changes to countries’ institutions drive the observed capital-market benefits.

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Section 13(d) Reporting Requirements Need Updating

Posted by David A. Katz, Wachtell, Lipton, Rosen & Katz, on
Thursday, April 12, 2012
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David A. Katz is a partner at Wachtell, Lipton, Rosen & Katz specializing in the areas of mergers and acquisitions and complex securities transactions. This post is based on an article by Mr. Katz and Laura A. McIntosh that first appeared in the New York Law Journal. The views expressed are the authors’ and do not necessarily represent the views of the partners of Wachtell, Lipton, Rosen & Katz or the firm as a whole. This post discusses a letter submitted to the SEC by Professor Lucian Bebchuk and Professor Robert J. Jackson Jr. concerning possible changes to Section 13(d) rules, available here.

A year has passed since Wachtell, Lipton, Rosen & Katz submitted a petition to the U.S. Securities and Exchange Commission requesting that it update its Schedule 13D reporting requirements to “clos[e] the Schedule 13D ten-day window between crossing the 5 percent disclosure threshold and the initial filing deadline, and adopt[] a broadened definition of ‘beneficial ownership’ to fully encompass alternative ownership mechanisms.” As the petition noted: “Recent maneuvers by activist investors both in the U.S. and abroad have demonstrated the extent to which current reporting gaps may be exploited, to the detriment of issuers, other investors, and the market as a whole.” [1] The SEC is scheduled to issue a concept release later this spring addressing the concerns raised by the petition. Activist hedge funds have responded strongly—opposing changes to the current Schedule 13D rules—complaining that the suggested changes will significantly hurt their business. Regardless of whether the present reporting scheme allows activist investors to profit by keeping their accumulations secret, it is clear that the present reporting regime is outdated and needs to be reconsidered. At a time when the SEC is requiring greater transparency from public companies and their executives, the same policy concerns demand greater transparency with respect to the acquisition of equity securities of public companies by third parties.

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Say on Pay: Who Is Watching the Watchmen?

Posted by Joseph E. Bachelder III, Law Offices of Joseph E. Bachelder, on
Wednesday, April 11, 2012
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Joseph Bachelder is founder and senior partner of the Bachelder Law Firm. This post is based on an article by Mr. Bachelder, with assistance from David T. Ling and Andy Tsang, which first appeared in the New York Law Journal.

This column looks at four circumstances having special impact on the governance of executive pay today and then focuses on one of them, proxy advisers (with particular attention to the largest one, Institutional Shareholder Services (ISS)). It concludes with suggestions as to steps that might be taken to better regulate proxy advisers.

Four Influential Factors

Increasing Complexity of the Executive Pay Discussion. Discussions of executive pay in proxy statements are often extremely complex and lengthy (frequently 30 to 40 pages of narrative and tables). Many companies are putting into the Compensation Discussion and Analysis (CD&A) their own tables (most especially their own competing version of the Summary Compensation Table) in order to express their own views on the correct way to explain and justify executive pay at the issuer. It has become a challenge to understand any one company’s executive pay arrangements and an even greater challenge to understand how that company’s executive pay arrangements relate to those at competitor companies.

Institutional Shareholders. Institutional shareholders represent an overwhelming proportion of the vote at publicly traded companies. (They own approximately 75 percent of the market value of exchange- traded companies.) These institutional shareholders owe a fiduciary duty to the persons who own their shares or are beneficiaries of the trust funds managed by them. This duty includes understanding how the companies in which they have invested are managed, including management of executive pay. The explosion of data noted in the preceding paragraph has meant a challenge to these institutional shareholders in trying to understand the executive pay practices at thousands of companies that they (collectively) are investing in.

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Risk-taking by Banks

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Wednesday, April 11, 2012
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The following post comes to us from Sugato Bhattacharyya and Amiyatosh Purnanandam, both of the Department of Finance at the University of Michigan.

Excessive risk-taking by banks is widely blamed as a primary factor behind the financial meltdown of 2007-2008. Yet, not much work has been done on whether banks fundamentally changed their risk-taking behavior prior to the crisis, nor has much formal work been done on whether banks’ risk-taking was “excessive” in any way. In our paper, Risk-taking by Banks: What Did Banks Know and When Did We Know It?, which was recently made publicly available on SSRN, we tackle these questions head on and also examine possible motives for bank managers to have changed their risk-taking behavior in the years leading up to the crisis.

In the years 2000 to 2006, a preliminary examination of stock price volatility does not seem to support the idea that the financial markets deemed the level of risks assumed by banks to be excessive. But we document a remarkable compositional shift in the measures of risk-taking: bank’s systematic risk, measured by their equity betas, almost doubled while their idiosyncratic volatility came down significantly. This reduction in idiosyncratic risk is consistent with the increasing reliance on securitization to shed firm-specific risks. But the remarkable increase in betas clearly shows that bank assets were becoming increasingly similar in terms of their risk characteristics and that future bank performance was viewed as much more dependent on the performance of the macro-economy. Our results indeed indicate major changes in the nature of risk-taking by banks in the years preceding the crisis.

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Thirty-Six Precatory Declassification Proposals Going to a Vote at Annual Meetings

Posted by the Harvard Law School Forum on Corporate Governance & Financial Regulation, on
Tuesday, April 10, 2012
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Editor’s Note: Professor Lucian Bebchuk is the Director of the Harvard Law School Shareholder Rights Project (SRP), and Scott Hirst is the SRP’s Associate Director. Any views expressed and positions taken by the SRP and its representatives should be attributed solely to the SRP and not to Harvard Law School or Harvard University. An initial post about the SRP’s activities during this proxy season is available here, a critique of the SRP’s activities by Martin Lipton and Theodore Mirvis is available here, a response to this critique by Jeffrey Gordon is available here, and a recent post about companies disclosing management declassification proposals made pursuant to agreements is available here.

This post provides information about thirty-six precatory board declassification proposals, submitted by institutional investors represented and advised by the Harvard Law School Shareholder Rights Project (SRP), that are expected to go to a vote at annual meetings during this proxy season.

During the 2011-12 proxy season, the SRP has been representing and advising several institutional investors – Illinois State Board of Investment (ISBI) , the Los Angeles County Employees Retirement Association (LACERA), the Nathan Cummings Foundation (NCF), the North Carolina Department of State Treasurer (NCDST), and the Ohio Public Employees Retirement System (OPERS) – in connection with the submission of precatory shareholder proposals to more than eighty S&P 500 companies that have classified boards. The proposals urge repealing the classified board and moving to annual elections, which are widely viewed as corporate governance best practice.

Through active engagement with companies receiving declassification proposals, the SRP and the institutional investors working with the SRP have been able to reach negotiated outcomes with (as of today) forty-four of the companies receiving such proposals. These companies have entered into agreements committing them to bring management proposals to declassify their boards. (A partial list of companies entering into such agreements, including only companies that have already made public filings that disclose the planned management proposals, is available here.)

In many other companies receiving proposals, however, the SRP and the institutional investors working with the SRP have not been able to obtain such negotiated outcomes. In such cases, the shareholder proposals urging board declassification are expected to go, or have already gone, to a vote at 2012 the annual meeting.

Thus far, only one proposal has gone to a vote. The proposal, submitted by the Illinois State Board of Investments to the F5 Networks, Inc. (FFIV), won 77% of the votes cast.

Below is a list of thirty-six companies where shareholders are expected to vote at the 2012 annual meeting on shareholder proposals submitted by institutional investor represented and advised by the SRP. Where the proxy statement has already been issued, the date of the meeting and a link to the proxy statement are also provided. The list does not include companies where a dialogue is still ongoing. The list will be updated periodically and the most updated version is available here.

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Shareholder Votes and Proxy Advisors

Posted by Fabrizio Ferri, Columbia University, on
Monday, April 9, 2012
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Fabrizio Ferri is an Assistant Professor of Accounting at Columbia University. Work from the Program on Corporate Governance about executive compensation includes the book Pay without Performance and the article Paying for Long-Term Performance, both by Bebchuk and Fried.

In the paper, Shareholder Votes and Proxy Advisors: Evidence from Say on Pay, which was recently made publicly available on SSRN, my co-authors (Yonca Ertimur of Duke University and David Oesch of the University of St. Gallen) and I examine the analyses underlying the voting recommendations issued by Institutional Shareholder Services (ISS) and Glass Lewis & Co. (GL), the two most influential proxy advisors, for the non-binding vote on executive pay mandated by the Dodd-Frank Act, also known as “say on pay” (SOP). We then investigate the effect of these recommendations on shareholder votes, stock prices and firm’s behavior. Due to the complex and highly firm-specific nature of executive compensation, mandatory SOP votes provide an especially powerful setting to examine the analyses performed by proxy advisors and their impact.

Our analysis of the SOP-related part of the ISS and GL proxy reports for S&P 1500 firms in 2011 shows that both advisors provide a quantitative and qualitative examination of the executive pay plan (structured around certain categories, e.g. pay for performance, disclosures), assign a rating for each category and issue a final voting recommendation (For or Against). ISS issues Against recommendations for 11.3% of the firms and GL for 21.7%, suggesting a more aggressive stance by GL. The difference also reflects the different approaches ISS and GL follow in assessing the “pay for performance” category, a key driver of the final recommendation, with ISS focusing its analysis of pay practices mostly on poorly performing firms. Firms receiving an Against from ISS are not a subset of those receiving an Against from GL. Rather, among firms with potentially questionable executive compensation practices (i.e. firms with an Against from at least one proxy advisor), ISS and GL agree on which firms warrant an Against only in 17.9% of the cases. We interpret this as evidence that the complex nature of SOP has allowed proxy advisors to differentiate themselves from each other. Additional analysis suggests that neither proxy advisor applies a “one-size-fits-all” approach in evaluating the compensation plans for the 2011 proxy season. Specifically, there are numerous cases where the proxy advisors identify similar controversial provisions yet issue different recommendations, based on firm-specific circumstances and other elements of the pay plan.

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The Influence of Proxy Advisory Firm Voting Recommendations

Posted by Matteo Tonello, The Conference Board, on
Sunday, April 8, 2012
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Matteo Tonello is Director of Corporate Governance for the Conference Board, Inc. This post is based on a Conference Board Director Note by David F. Larcker, Allan L. McCall, and Brian Tayan; the full publication, including charts, survey results, and footnotes, is available here.

This report examines current evidence regarding the influence of third-party proxy advisory firms’ voting recommendations on shareholder proposal voting outcomes, particularly say-on-pay votes. It also presents the findings of a study, conducted by The Conference Board, NASDAQ, and the Rock Center for Corporate Governance at Stanford University, which shows that proxy advisory firms have a substantial impact on the design of executive compensation programs. However, the impact of those firms on governance quality and shareholder value is still unknown.

A growing body of evidence demonstrates the influential role that third-party proxy advisory firms play in affecting the voting outcome of proposals made to shareholders in the annual proxy, particularly say-on-pay votes, which became mandatory for most public companies in 2011. There is less evidence, however, to establish the extent to which companies respond to this influence by changing the size and structure of executive compensation plans to conform to proxy advisor voting polices. A recent study conducted by The Conference Board, NASDAQ, and the Rock Center for Corporate Governance at Stanford University found that proxy advisory firms have a substantial impact on the design of executive compensation programs.

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