Yearly Archives: 2016

Responding to a Negative Say-on-Pay Outcome

David Whissel is Vice President and Director of Corporate Governance at MacKenzie Partners, Inc. This post is based on a MacKenzie Partners publication.

In the fifth full season of the advisory vote on executive compensation (“say-on-pay”), average shareholder support for these proposals remains high—in excess of 91% so far in 2016, according to our research. However, although there have been slightly fewer “failed” votes this year, more than 10% of issuers receive a negative recommendation from at least one of the proxy advisors, and many more spend the early part of the proxy season scrambling to deal with executive compensation issues preemptively to ensure that they do not develop into a negative outcome.

For those companies that believe historical high levels of say-on-pay proposal support makes them less susceptible to shareholder opposition, consider this: More than 25% of the companies with “failed” say-on-pay votes in 2016 received support in excess of 90% the previous year, suggesting that performance issues, substantial one-time awards, and other unique circumstances can strain the patience of investors even if the underlying compensation plan is sound. As institutional investors and proxy advisory firms continue to enhance their scrutiny on executive compensation, it is important for issuers to be prepared for a potential negative outcome and to have a plan in place to respond accordingly.

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Gender Differences in Executives’ Access to Information

H. Nejat Seyhun is Professor of Finance at University of Michigan Ross School of Business. This post is based on a forthcoming article authored by Professor Seyhun; A. Can Inci, Professor of Finance at Bryant University; and M.P. Narayanan, Robert Morrison Hoffer Professor of Business Administration at University of Michigan Ross School of Business.

As more women enter the upper echelons of large corporations (according to Catalyst, the proportion of CEOs in Fortune 500 firms has increased from 0.4% in 1998 to 4.6% in 2015 and the proportion of board members has increased from 9.6% to 19.9%), the natural question that arises is whether women executives have equal access to material and relevant information as their male counterparts. Clearly, establishing and comparing men’s and women’s access to relevant corporate information is difficult. We use a novel approach to explore this question. Our proxy for executives’ corporation-specific knowledge is the profitability of insider trading. To the extent executives have access to material, non-public information about their own corporation, they will be able to trade profitably.

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The Impact of SEC Enforcement on Public Finance

Andrew Ceresney is Director of the Division of Enforcement, U.S. Securities and Exchange Commission. The following post is based on Mr. Ceresney’s recent keynote address at the Securities Enforcement Forum 2016; the complete text, including footnotes, is available here. The views expressed in this post are those of Mr. Ceresney and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Good afternoon and thank you for that very kind introduction. It’s a pleasure to speak with you all today [Oct. 13, 2016]. Before I start, I must give our standard disclaimer that the views I express today are my own and do not necessarily reflect the views of the Commission or its staff.

Today I am going to talk about the Commission’s enforcement efforts in the area of public finance. Public finance, and the municipal securities market in particular, is a critically important area, and one on which the Enforcement Division needs to be, and has been, focused over the last few years. Our numerous recent enforcement actions have resulted in significant changes in the public finance market, where the Commission has brought many first-of-their-kind actions and used a range of legal theories and remedies.

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Global Board Culture Survey 2016

Rusty O’Kelley is a member of the CEO and Board Services Practice; and Anthony Goodman is a member of the Board Effectiveness Practice at Russell Reynolds Associates. This post is based on a Russell Reynolds publication.

During the summer of 2016, 369 corporate (supervisory) large public company directors from a dozen countries participated in Russell Reynolds Associates’ Global Board Culture Survey. The goal of the survey was to better understand the director behaviors that create a high-performing board culture and drive board effectiveness.

Directors around the world were surprisingly consistent in the top five behaviors they named as key to a strong culture and an effective board. The survey showed that the attributes that define an effective director transcend cultural and national differences.

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Shareholder Wealth Consequence of Insider Pledging of Company Stock as Collateral for Personal Loans

Jason Zein is Associate Professor at the University of New South Wales (UNSW) Business School. This post is based on a recent paper by Professor Zein; Ronald Masulis, Scientia Professor of Finance at UNSW Business School, University of New South Wales; and Ying Dou. Related research from the Program on Corporate Governance includes Paying for Long-Term Performance by Lucian Bebchuk and Jesse Fried (discussed on the Forum here).

Many publicly listed firms around the world allow their executives and other major shareholders to pledge their company shareholding as collateral for a personal loan. Pledging is valuable to corporate insiders because it allows them to nominally retain their ownership in the firm, while at the same time accessing the liquidity that is tied up in their firm’s stock. These liquidity benefits of pledging allow corporate insiders to enjoy valuable private benefits such as greater consumption or diversification of their personal wealth by funding other private investment opportunities.

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CEO Pay Ratio and Income Inequality: Perspectives for Compensation Committees

Ira Kay is a Managing Partner and Blaine Martin is a Consultant at Pay Governance LLC. This post is based on a Pay Governance memorandum. Related research from the Program on Corporate Governance includes The CEO Pay Slice by Lucian Bebchuk, Martijn Cremers, and Urs Peyer (discussed on the Forum here).

At a recent Compensation Committee meeting, a director remarked, “As we discuss our CEO’s target compensation for next year, we need to remember that there is an ongoing debate about income inequality.” Income inequality and executive compensation are two of the most controversial issues in modern American economic and political discourse. The forthcoming mandated disclosure of the CEO pay ratio will link these two issues directly in the boardroom.

Many critics blame the rise in inequality over the past 20 years partially or heavily on the rise in public company CEO compensation. These critics use the “300 to 1” large company CEO pay multiple compared to average US employee pay as both the primary symptom and the definition of inequality. Inequality is more precisely and typically defined in economics as the percentage of total national income earned by the top percentages of households or taxpayers (e.g., top 1% or top .1%). Using this definition, it is well‐documented that US income inequality, historically among the highest relative to other developed countries, has continued to increase significantly. CEO pay also rose over that period.

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Broadening Noteholders’ Ability to Receive Redemption Premiums Following Indenture Defaults

Gregory Fernicola is a partner at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on a Skadden publication by Mr. Fernicola, Michael Hong, Stacy Kanter, and Michael Zeidel.

In a decision issued on September 19, 2016, the U.S. District Court for the Southern District of New York ruled that bondholders were entitled to a “make-whole” redemption premium, as opposed to a repayment at par, following a default by the issuer under the related bond indenture. The decision raises important considerations for issuers of debt securities that contain similar provisions.

On September 19, 2016, the U.S. District Court for the Southern District of New York granted summary judgment to Wilmington Savings Fund Society, FSB, with respect to claims brought against Cash America International, Inc. in Wilmington Savings’ capacity as trustee under the indenture governing $300 million of Cash America’s outstanding notes. Wilmington Savings claimed that Cash America violated a covenant in the indenture when it disposed of 80 percent of a wholly owned subsidiary to its shareholders in the form of a dividend of the subsidiary’s stock. Wilmington Savings also claimed that the proper remedy for Cash America’s breach would be an award requiring Cash America to redeem the notes, including payment of the specified “make-whole” redemption premium under the indenture, as opposed to accelerating the maturity date and a repayment at the par value of the notes.

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Problems Using Aggregate Data to Infer Individual Behavior

Clifford G. Holderness is Professor of Finance at the Carroll School of Management at Boston College. This post is based on a forthcoming article by Professor Holderness.

Many studies in finance and beyond compare firms and markets across countries. These studies have been influential, especially in the area of corporate governance. There is a rarely discussed—indeed hardly noticed—split in how researchers seek to explain differences in firms or individuals across countries. Some papers form country averages of a particular characteristic, such as the use of internal rather than external financing. These country averages are then used as the dependent variable in any empirical analysis. Other papers use the underlying firm observations as the unit of analysis. None of these papers discuss their decision to go one route or the other.

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Universal Proxies

Scott Hirst is a Lecturer on Law at Harvard Law School and Associate Director of the Harvard Law School Program on Corporate Governance. This post is based on a recent paper by Dr. Hirst, which was also described in a recent Wall Street Journal article.

The Securities and Exchange Commission is expected to soon propose a rule regarding universal proxies. At the urging of investors groups, SEC Chair Mary Jo White has made a universal proxy rule an objective of her tenure. But a rider to a spending bill passed by the House and pending in the Senate intends to prevent a universal proxy rule, on the basis that it might increase the frequency of proxy fights and empower special interests. The debate between these positions has so far proceeded despite a dearth of evidence.

In my paper, Universal Proxies, which was described in a recent Wall Street Journal article, I provide the first economic and empirical analysis of universal proxies. I show that the current system, whereby shareholders vote by unilateral proxies, can create distortions which disenfranchise shareholders. 22% of proxy contests at large U.S. corporations between 2008 and 2015 may have had distorted outcomes that could be prevented by a universal proxy rule. Contrary to concerns raised by its opponents, a universal proxy rule is unlikely to lead to more proxy contests, or to greater success for special interest groups. The significant benefits of universal proxies in eliminating distorted proxy contests outweigh these perceived costs, and would enfranchise shareholders.
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The Legal and Regulatory Requirements of Executive Compensation

Paula Loop is Leader of the Governance Insights Center at PricewaterhouseCoopers LLP and Arthur H. Kohn is a partner at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a co-publication from PwC and Cleary Gottlieb Steen & Hamilton LLP. Related research from the Program on Corporate Governance includes the book Pay without Performance: The Unfulfilled Promise of Executive Compensation, by Lucian Bebchuk and Jesse Fried.

More and more, we are seeing boards engage with shareholders and other stakeholders about executive compensation. But what has motivated this new attitude? We take a closer look at the drivers behind it, including provisions of the Dodd-Frank Act, the role of proxy advisors and shareholder pressure, and offer advice on how boards can do a better job of talking to shareholders and other stakeholders about the issue.

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