Yearly Archives: 2017

Balancing Board Experience and Expertise

John Roe is Head of ISS Analytics and Managing Director at Institutional Shareholder Services, Inc. This post is based on an ISS publication by Mr. Roe.

One criticism frequently leveled against boards of directors is that, when it comes to filling vacant board seats, they don’t cast the net widely enough. The numbers clearly show that boards often fill seats with candidates that have previous board experience—it’s even written right into the job description given to search firms in some cases. And, for many boards, that’s an understandable request—bringing on a “proven” director can side-step some of the concerns that shareholders and other board members may have.

But the flip side of the coin is that the seeming preference for directors with previous board experience may hamper efforts to bring new and diverse views into the boardroom. Some cynics wonder, if companies are simply cycling through the same individuals again and again to fill vacant seats, how many new views are companies actually bringing into the boardroom?

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Weekly Roundup: July 21–27, 2017


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This roundup contains a collection of the posts published on the Forum during the week of July 21–27, 2017.

DOL Fiduciary Rule: Impact and Action Steps










By the Numbers: Venture-Backed IPOs in 2016



ESG Reports and Ratings: What They Are, Why They Matter

Betty Moy Huber is Counsel and Michael Comstock is an associate at Davis Polk & Wardwell LLP. This post is based on a Davis Polk publication by Ms. Huber and Mr. Comstock.

Most international and domestic public (and many private) companies are being evaluated and rated on their environmental, social and governance (ESG) performance by various third party providers of reports and ratings. Institutional investors, asset managers, financial institutions and other stakeholders are increasingly relying on these reports and ratings to assess and measure company ESG performance over time and as compared to peers. This assessment and measurement often forms the basis of informal and shareholder proposal-related investor engagement with companies on ESG matters. Report and ratings methodology, scope and coverage, however, vary greatly among providers. Many providers encourage input and engagement with their subject companies to improve or sometimes correct data. There are currently numerous ESG data providers, a summary of each of which is beyond the scope of this post, but some well-known third party ESG report and ratings providers include: (i) Bloomberg ESG Data Service; (ii) Corporate Knights Global 100; (iii) DowJones Sustainability Index (DJSI); (iv) Institutional Shareholder Services (ISS); (v) MSCI ESG Research; (vi) RepRisk; (vii) Sustainalytics Company ESG Reports; and (viii) Thomson Reuters ESG Research Data. This post provides an overview and analysis of these providers. [1]

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When a Piece of Your Company No Longer Fits: What Boards Need to Know About Divestitures

Paula Loop is Leader of the Governance Insights Center at PricewaterhouseCoopers LLP. This post is based on a PwC publication by Ms. Loop.

Focusing on growth is a given when it comes to increasing value for a company’s investors. That can mean exploring an acquisition or a strategic alliance—actions that expand the organization’s reach. But a divestiture could also help boost returns for shareholders. In fact, many shareholder activism campaigns have urged selling parts of companies as a way to unlock value.

Why is that? Some companies have businesses that don’t contribute to core capabilities or fit with their current strategy, or whose financial performance lags other businesses and are a drag on earnings. By removing the nonconforming businesses, a company can create a more focused portfolio for shareholders. A divestiture also can enable a business that doesn’t fit to potentially thrive elsewhere—either on its own or as part of another company.

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By the Numbers: Venture-Backed IPOs in 2016

Richard C. Blake and Heidi E. Mayon are partners at Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP. This post is based on a Gunderson Dettmer publication.

Only 42 venture-backed companies went public in the United States in 2016, including eight incorporated outside the United States, making it the most challenging year by number of IPOs and by aggregate offering amount raised since the recessionary times of 2009. The average offering amount per IPO in 2016 was only $77.3 million—the lowest average since 2003. Life sciences companies represented over a majority of the IPOs completed in 2016, many of which relied in some part on insider participation, consistent with 2015.

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The ESG Integration Paradox

Michael T. Cappucci is Senior Vice President at Harvard Management Company. This post is based on a recent paper by Mr. Cappucci. Related research from the Program on Corporate Governance includes Social Responsibility Resolutions by Scott Hirst (discussed on the Forum here).

If investment managers followed the old saying “whatever is worth doing is worth doing well,” then more would have best‐in‐class environmental, social and governance (ESG) programs. It used to be that asset owners could identify which investment managers “got” ESG investing principles simply by asking whether they had a written ESG policy. Today, most investment managers have something to say about ESG issues, and written ESG policies are becoming ubiquitous. Yet, as anyone who has ever looked at investment managers’ ESG policies can attest, the existence of a written document is not a reliable indicator of a firm’s commitment to or performance on sustainable long‐term goals.

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Review of Shareholder Activism—1H 2017

Jim Rossman is Managing Director and Head of Corporate Preparedness at Lazard. This post is based on a Lazard publication by Mr. Rossman. Related research from the Program on Corporate Governance includes The Long-Term Effects of Hedge Fund Activism by Lucian Bebchuk, Alon Brav, and Wei Jiang (discussed on the Forum here); The Myth that Insulating Boards Serves Long-Term Value by Lucian Bebchuk (discussed on the Forum here); and Who Bleeds When the Wolves Bite? A Flesh-and-Blood Perspective on Hedge Fund Activism and Our Strange Corporate Governance System by Leo E. Strine, Jr. (discussed on the Forum here).

Review of Shareholder Activism in 1H 2017

1. The most prominent activists have ramped up their activity, raising capital and launching campaigns against blue chip targets

  • Unique approaches such as Mantle Ridge’s single-investment targeting of CSX, Greenlight’s dual-class proposal at GM and Elliott’s partnership with BlueScape at NRG indicate a willingness to pursue ambitious and creative strategies

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Internal Capital Markets in Times of Crisis: The Benefit of Group Affiliation in Italy

This post is based on a recent paper authored by Raffaele Santioni, Fabio Schiantarelli, and Philip E. Strahan. Raffaele Santioni is an economist at the Bank of Italy, DG Economics, Statistics and Research. Fabio Schiantarelli is Professor of Economics, Boston College and Research Fellow at the IZA Institute of Labor Economics. Philip E. Strahan holds the John L. Collins, S.J. Chair in Finance at Boston College Carroll School of Management and a Faculty Research Fellow at the National Bureau of Economic Research.

The Italian banking system began experiencing large credit losses starting at the beginning of the 2008 Global Financial Crisis and increasing further with the onset and deepening of the Euro Crisis in 2011. By December of 2015, aggregate bad loans had reached about €200 billion, or approximately 8% of total loans outstanding. Losses are substantially higher when other troubled loans not yet written off are included. Unlike other recent banking problems, where losses were concentrated in real estate or sovereign debt exposure, most of these losses—close to 80%—come from bad debts in lending to non-financial businesses.

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Securities Class Actions: 2016 Full-Year Review and Mid-2017 Flash Update

Stefan Boettrich and Svetlana Starykh are Senior Consultants at NERA Economic Consulting. This post is based on a NERA publication by Mr. Boettrich, Ms. Starykh, and Dr. David Tabak.

The pace of securities class action filings [in 2016] was the highest since the aftermath of the 2000 dot-com crash. Growth in filings was dominated by federal merger objections, which reached a record high, and followed various state court decisions restricting “disclosure-only” settlements, the most prominent being the 2016 Trulia decision in the Delaware Court of Chancery. Filings alleging violations of Rule 10b-5, Section 11, or Section 12 grew for a record fourth straight year and reached levels not seen since 2008.

NERA-defined Investor Losses, a proxy for filed case size, reached a record $468 billion in 2016, 44% of which arose from securities cases claiming damages due to regulatory violations. Of those, several large securities cases stemmed from a US Department of Justice (DOJ) probe into alleged price collusion in generic pharmaceuticals. Those cases contributed to a high concentration of filings in the Health Technology and Services sector.

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Tainted Executives as Outside Directors

Yonca Ertimur is Professor of Accounting at the Leeds School of Business at the University of Colorado. This post is based on a recent paper by Professor Ertimur; Jingjing Zhang, Assistant Professor of Accounting at McGill University; and Leah Baer, a Ph.D. candidate at the Leeds School of Business at the University of Colorado.

In our paper, Tainted Executives as Outside Directors, which was recently made publicly available on SSRN, we examine whether there is ex-post settling up in the director labor market for tainted executives, i.e., executives who are allegedly involved in governance failures. A rich literature dating back to Fama (1980) and Fama and Jensen (1983) argues that ex-post settling up in the labor market incentivizes managers to develop reputations as experts in monitoring and advising. Prior studies focus exclusively on the managerial labor market and document reputational penalties for tainted executives. Our motivation for focusing on the director labor market is twofold. First, given the monetary and non-monetary benefits of directorships, the director labor market can play an important role in shaping executives’ incentives. Second, because firms have different monitoring and advising needs, and face different supply of potential directors, it is not clear how the director labor market will evaluate tainted executives.

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