Yearly Archives: 2018

The Regulation of Proxy Advisors

Steve Seelig and Puneet Arora are regulatory advisors at Willis Towers Watson. This post is based on a Willis Towers Watson memorandum by Mr. Seelig and Mr. Arora.

Recently, the Senate Committee on Banking, Housing and Urban Affairs held a hearing on various legislative proposals aimed at improving corporate governance, including the Corporate Governance Reform and Transparency Act, H.R. 4015, that would regulate the activities of proxy advisory firms like Institutional Shareholder Services (ISS) and Glass Lewis.

This hearing is the latest step in the legislative process, following the House of Representative voting 238-182 on December 20, 2017 to send H.R. 4015 to the Senate for consideration. It is not yet clear that the Senate will move the legislation from the Committee to the full Senate, or whether the Committee will make significant amendments requiring a second vote from the House to endorse those changes, or some compromise to harmonize those differences. Moreover, any movement on H.R. 4015 in the near term seems unlikely, given the Senate’s focus on confirming President Trump’s nominee for the Supreme Court and on the mid-term elections.

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SEC Liability for Social Media Violations

Michael W. McGrath is partner and Pablo J. Man and Britney E. Ryan are associates at K&L Gates LLP. This post is based on a K&L Gates memorandum by Mr. McGrath, Mr. Man, Ms. Ryan, Sonia R. Gioseffi and Pamela A. Grossetti.

On July 10, 2018, the Securities and Exchange Commission (the “SEC”) reaffirmed the application of the securities laws to social media use. Specifically, the SEC published five settlement orders (the “Settlements”) [1] arising from alleged violations of the Investment Advisers Act of 1940, as amended (“Advisers Act”), and Rule 206(4)-1(a)(1) thereunder (the “Testimonial Rule”). Notably, the Settlements involved the publication of client testimonials on social media and other websites by SEC-registered investment advisers (“RIAs”), the investment adviser representatives of RIAs (“IARs”), and/or a marketing consultant hired by the RIA or the IARs. Taken together, the Settlements demonstrate that the SEC and its staff (“Staff”) are actively applying the Staff’s 2014 Guidance on the Testimonial Rule (described below) in the enforcement context. The Settlements, which arise from examination referrals conducted by the SEC’s Chicago Regional Office, are further evidence of an increased focus by the Staff on social media use by RIAs generally. [2]

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Weekly Roundup: July 27-August 2


More from:

This roundup contains a collection of the posts published on the Forum during the week of July 27–August 2, 2018.

IPO Governance Survey 2018


Gender Diversity and Board Quotas


Proposed Amendments to Whistleblower Rules


Effects of Executive Pay Levels on Say on Pay


The Limits of “The Corwin Effect”


Lorenzo v. SEC: Will the Supreme Court Further Curtail Rule 10b-5?



Information Rights of Conflicted Directors


The Evolution of Corporate Cash




Dissecting C-Suite Gender Pay Disparity



Shareholder Proposal Developments During the 2018 Proxy Season

Shareholder Proposal Developments During the 2018 Proxy Season

Ronald O. Mueller and Elizabeth Ising are partners and Aaron Briggs is of counsel at Gibson, Dunn & Crutcher LLP. This post is based on a Gibson Dunn memorandum by Mr. Mueller, Ms. Ising, Mr. Briggs, Lori ZyskowskiEmily Shroder, and Victor Twu.

Related research from the Program on Corporate Governance includes Social Responsibility Resolutions by Scott Hirst (discussed on the Forum here).

As discussed in further detail below, based on the results of the 2018 proxy season, there are several key takeaways to consider for the coming year:

  • Shareholder proposals continue to be used by certain shareholders and to demand significant time and attention. Although the overall number of shareholder proposals submitted decreased 5% to 788, the average support for proposals voted on increased by almost 4 percentage points to 32.7%, suggesting increased traction among institutional investors. In addition, the percentage of proposals that were withdrawn increased by 6 percentage points to 15%, and the number of proponents submitting proposals increased by 20%. However, there are also some interesting ongoing developments with respect to the potential reform of the shareholder proposal rules (including the possibility of increased resubmission thresholds).

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Partial Disclosures and the Corwin Doctrine

David Hennes and John E. Sorkin are partners and Martin J. Crisp is counsel at Ropes & Gray LLP. This post is based on a Ropes & Gray publication by Mr. Hennes, Mr. Sorkin, Mr. Crisp, Paul S. Scrivano, Jane D. Goldstein, and Peter L. Welsh. This post is part of the Delaware law series; links to other posts in the series are available here.

On July 9, 2018, the Delaware Supreme Court held in Morrison v. Berry that Corwin business judgment review will not apply to stockholder-approved transactions when “partial and elliptical” disclosures leave stockholders less than fully informed. This decision, which reversed a dismissal by the Court of Chancery, serves as a court-described “cautionary reminder” that disclosures to stockholders must faithfully reflect material facts in order for transaction parties to benefit from the director-friendly standard established by the Delaware Supreme Court in Corwin.

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Dissecting C-Suite Gender Pay Disparity

Lyla Qureshi is a Research Analyst at Equilar. This post is based on an Equilar memorandum by Ms. Qureshi.

April 10th marked Equal Pay Day 2018 in the United States. This particular date was chosen to highlight the occasion because it represents the amount of time—approximately 100 days into 2018—women must work to achieve the same pay that men earned in 2017. To further shed light on this topic, Equilar examined the gender pay equity ratio of specific executive levels. To understand the gender pay equity ratio as it stands today, Equilar calculated the ratio by analyzing the total compensation (base salary paid, incentive awards valued at target, grant date fair value of equity awards) received by male and female executives, particularly those who occupy the positions of chief executive officer, chief financial officer, human resources executive and general counsel at companies classified in the Russell 3000 market index over the last three years.

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Statement Announcing SEC Staff Roundtable on the Proxy Process

Jay Clayton is Chairman of the U.S. Securities and Exchange Commission. This post is based on Chairman Clayton’s recent public statement, available here. The views expressed in this post are those of Mr. Clayton and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Shareholder engagement is a hallmark of our public capital markets, and the proxy process is a fundamental component of that engagement. In 2010, the Commission issued a concept release seeking public comment on whether the U.S. proxy system as a whole operates with the accuracy, reliability, transparency, accountability, and integrity that shareholders and companies should expect. [1] In light of the many changes in our markets, technology, and how companies operate since then, SEC staff will host a roundtable this fall to hear from investors, issuers, and other market participants about whether the SEC’s proxy rules should be refined.

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What’s in a Name? Regulation Best Interest v. Fiduciary

Hester M. Peirce is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent remarks at the National Association of Plan Advisors D.C. Fly-In Forum, available here. The views expressed in this post are those of Ms. Peirce and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Thank you for that kind introduction. I am excited to be with a group of people who play such a vital role in helping to provide peace of mind to workers planning for and heading into retirement. The Commission also has a role to play in helping to enhance retirement security for Americans. I want to focus today’s [July 24, 2018] remarks on our work in overseeing the broker-dealers and investment advisers that work with investors to secure their retirements. You will not be surprised to hear that my particular focus will be on the recently proposed standards for broker-dealers and investment advisers providing investment assistance to investors. Before proceeding, I must, as always, provide the standard disclaimer that the views I express today are my own, and do not necessarily reflect the views of the Commission or my fellow Commissioners.

I. Words—What do They Mean?

I am going to start with a little Latin, but it may not be what you are thinking; I am not going to start with the Latin etymology of the word “fiduciary.” [1] Instead, the Latin lesson of the day is “Malo malo malo malo.” I struggled through a lot of years of Latin in school, but for all that study, I still was stumped by “malo malo malo malo” when someone challenged me with that sentence recently. It is the same word four times in a row, so how hard could it be? I assumed it was “bad, bad, bad, bad” or “evil, evil, evil, evil,” which might be a pretty good sentence to have handy in connection with a lot of financial regulatory policy debates.

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The Evolution of Corporate Cash

John Graham is the D. Richard Mead, Jr. Family Professor at Duke University’s Fuqua School of Business and Mark Leary is Associate Professor of Finance at Washington University in St. Louis’ Olin School of Business. This post is based on a recent article by Professor Graham and Professor Leary, forthcoming in The Review of Financial Studies.

The large increase in corporate cash balances in recent years has garnered much attention in both the academic literature and popular press. Several explanations for this apparent shift in corporate policies have been proposed, including increased riskiness of corporate cash flows, a change in the nature of firms’ assets or the nature of firms going public, a decline in the opportunity cost of holding cash (due to low interest rates), agency conflicts, and U.S. repatriation tax law, which led to trapped foreign cash. While each of these hypotheses is instructive, to fully understand what is different about modern cash policies and what drives time-series changes in corporate cash, one needs to put the recent trends in historical perspective. We gather data back to 1920 to provide this perspective.

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Information Rights of Conflicted Directors

Amy Simmerman and Brad Sorrels are partners and Nate Emeritz is of counsel at Wilson Sonsini Goodrich & Rosati. This post is based on a Wilson Sonsini memorandum by Ms. Simmerman, Mr. Sorrels, Mr. Emeritz, David Berger, Bradley Finkelstein, Douglas Schnell, and is part of the Delaware law series; links to other posts in the series are available here. Related research from the Program on Corporate Governance includes Independent Directors and Controlling Shareholders by Lucian Bebchuk and Assaf Hamdani (discussed on the Forum here).

The Delaware Court of Chancery recently addressed important issues concerning the information rights of directors designated by a significant stockholder, as well as a board committee’s ability to withhold information from certain directors. These types of issues frequently arise in practice when there are competing factions of directors or other types of governance disputes within a company. In a short letter decision during the discovery phase of the contentious In re CBS Corporation Litigation[1] Chancellor Andre Bouchard reinforced previous guidance from Delaware in holding that (1) directors could not access certain categories of information as to which adversity existed between the company and the stockholder that designated those directors, but (2) the designating stockholder also would not otherwise be prevented from seeing information to which its designated directors were entitled.
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