Monthly Archives: March 2019

2019 Proxy Voting and Engagement Guidelines: North America

Rick Lacaille is Executive Vice President and Global Chief Investment Officer and Rakhi Kumar is Senior Managing Director and Head of ESG Investments and Asset Stewardship at State Street Global Advisors. This post is based on a publication prepared by State Street Global Advisors.

State Street Global Advisors recently released their 2019 proxy voting and engagement guidelines. The guidelines consist of the 2019 Global Proxy Voting and Engagement Principles and six market specific proxy voting and engagement guidelines, including the North American guideline reproduced below. The guidelines are supplemented by the 2019 Global Proxy Voting and Engagement Guidelines for Environmental and Social Issues, which provides additional transparency into our approach to these important issues. The complete set of guidelines, including our Conflicts of Interest Policy and Issuer Engagement Protocol are available under the Voting Guidelines section of the Asset Stewardship website.

State Street Global Advisors’ North America Proxy Voting and Engagement Guidelines [1] address areas, including board structure, director tenure, audit related issues, capital structure, executive compensation, as well as environmental, social, and other governance-related issues of companies listed on stock exchanges in the US and Canada (“North America”). Principally, we believe the primary responsibility of the board of directors is to preserve and enhance shareholder value and protect shareholder interests. In order to carry out their primary responsibilities, directors have to undertake activities that range from setting strategy and overseeing executive management to monitoring the risks that arise from a company’s business, including risks related to sustainability issues. Further, good corporate governance necessitates the existence of effective internal controls and risk management systems, which should be governed by the board.

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Does Protectionist Anti-Takeover Legislation Lead to Managerial Entrenchment?

Marc Frattaroli is a PhD candidate at the Swiss Finance Institute at Ecole Polytechnique Fédérale de Lausanne (EPFL). This post is based on his recent article, forthcoming in the Journal of Financial Economics. Related research from the Program on Corporate Governance includes The Myth that Insulating Boards Serves Long-Term Value by Lucian Bebchuk (discussed on the Forum here).

My article, titled Does protectionist anti-takeover legislation lead to managerial entrenchment?, forthcoming in the Journal of Financial Economics, investigates the implications of protectionist interventions into mergers and acquisitions for corporate governance.

Over the last few years, governments worldwide have intervened in a significant number of cross-border mergers and acquisitions, often citing national security concerns. Several countries including the United States, Germany, France, and the United Kingdom have also recently introduced or are contemplating the introduction of legislation that increases the scrutiny of foreign investments. The threat of a takeover is one of several possible ways to overcome the agency problem created by the separation of ownership and control in firms: If a firm’s management is implementing policies that are suboptimal for shareholders, a shareholder or third party can make a profit by acquiring the firm and replacing its management team. In theory, therefore, a reduction in this threat, such as through protectionist legislation, has the potential to entrench a firm’s management, i.e. might allow management to extract private benefits at the expense of shareholders.

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Practical Implications of Proposed Testing the Waters for All Issuers under U.S. Securities Law

Jon Daly, Michael Hyatte, and David Ni are partners at Sidley Austin LLP. This post is based on a Sidley memorandum by Mr. Daly, Mr. Hyatte, Mr. Ni, David B. Lichtstein, Craig Chapman, and Eric Haueter.

On February 19, 2019, the Securities and Exchange Commission (SEC) approved a proposed rule that, if enacted, would permit all issuers to use “test-the-waters” communications (TTW communications). Currently, only “emerging growth companies”—a defined term generally describing most initial public offering (IPO) issuers and other new entrants to the SEC reporting system—are permitted to engage in TTW communications under the Securities Act of 1933 (Securities Act). This alert provides some background on TTW communications, discusses the new proposal and concludes with our views of the practical implications of the proposal.

Background: Testing the Waters and the JOBS Act

In April 2012, President Barack Obama signed the Jumpstart Our Business Startups Act (JOBS Act) into law. The JOBS Act’s stated objective was to facilitate capital formation, particularly for emerging growth companies (EGCs). The JOBS Act added Section 5(d) to the Securities Act to permit TTW communications for EGCs. Section 5(d) allows EGC issuers, and persons acting on their behalf, to test the waters by oral or written communication with potential investors both before and after the filing of an IPO registration statement. Under Section 5(d), TTW communications are solely permitted with potential investors who are “qualified institutional buyers” (QIBs) or institutional “accredited investors” (IAIs), as defined by applicable SEC rules. Apart from TTW communications, after the filing of a registration statement, written communication offering a security is forbidden by Section 5(b) unless such communication is a prospectus that meets SEC requirements or is exempt from those requirements.

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Longer-Term Restricted Share Plans in Executive Pay

Joseph Bachelder is special counsel at McCarter & English LLP. This post is based on a memorandum by Mr. Bachelder. Andy Tsang, a senior financial analyst with the firm, assisted in the preparation of this post. 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) and Share Repurchases, Equity Issuances, and the Optimal Design of Executive Pay by Jesse Fried (discussed on the Forum here).

This post examines “longer-term” restricted share plans that, in some cases, have replaced performance share plans in executive pay programs. It focuses on such a replacement made by a U.K. company in 2018.

Restricted shares have been a form of long-term incentive award since the 1950s. They generally provide vesting over a period of several years. (Three years is typical but some restricted shares vest over longer periods, such as four or five years. Some awards provide for “cliff vesting”—meaning vesting, if it occurs, occurs at the end of the vesting period and not at intervals (such as pro rata) during that period.) Restricted share awards, as referred to in this post, represent the full value of the share (not just the growth in value). Acceleration of vesting may take place in certain circumstances such as a Change in Control or a “qualifying termination” (e.g., a termination by the employer without Cause or by the employee for Good Reason).

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Board 3.0: An Introduction

Ronald J. Gilson is Stern Professor of Law and Business at Columbia Law School and Meyers Professor of Law and Business Emeritus at Stanford Law School, and Jeffrey N. Gordon is Richard Paul Richman Professor of Law at Columbia Law School. This post is based on their recent article, forthcoming in The Business Lawyer.

In Board 3.0: An Introduction, we sketch the case for a new board structure as an option for public company boards. The current board model—Board 2.0 in our terms—had its genesis in Mel Eisenberg’s iconic 1976 book. Eisenberg framed the ideal board as one dominated by part-time independent directors charged with monitoring management’s performance. This would replace the Board 1.0 model of directors who served as management’s advisors and whose response to disagreements with management was to resign rather than act. Board 2.0, however, goes only so far. The board remains dependent on management for company-sourced information and thus is heavily reliant on stock market prices as a measure of management performance. The result has been a board model of thinly informed, under-resourced, and boundedly motivated directors, attractive to management because of the judicially provided cover that such a board can deliver in fending off the four horsemen of the corporate apocalypse: plaintiffs’ lawyers, regulators, raiders and activists.

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Whistleblower Award to Company Outsider

Jennifer Kennedy Park is a partner, Alex Janghorbani is a senior attorney, and Jim Wintering is an associate at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary memorandum by Ms. Kennedy Park, Mr. Janghorbani, and Mr. Wintering.

On March 4, 2019, the Commodity Futures Trading Commission (“CFTC”) announced a whistleblower award of over $2 million to an individual—unaffiliated with the company the CFTC charged—for providing expert analysis in conjunction with a related action instituted by another federal regulator. While the Securities and Exchange Commission, which possesses a similar whistleblower award regime, [1] has previously issued awards to multiple claimants for both related actions [2] and to company outsiders, [3] this is the first such award to be granted by the CFTC in either respect.

The award demonstrates the CFTC’s continued commitment to the Whistleblower Program, and to using all available means in conducting enforcement actions. This award also reflects both the CFTC’s willingness to collaborate with other federal regulators and to rely on external sources of expert data analysis and likely reflects the CFTC’s continued expansion of its Whistleblower Program, both in terms of sources of information and awards granted. 

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2018 Year in Review—Securities Litigation Against Technology Companies

Grant Fondo and Michael Jones are partners and Nicholas Reider is an associate at Goodwin Procter LLP. This post is based on a Goodwin memorandum by Mr. Fondo, Mr. Jones, Mr. Reider, Hayes Hyde, Daniel Mello, and Janie Miller.

In 2018, Plaintiffs filed 403 new federal securities class actions, which was a 2% decrease from 2017 but still nearly double the average of annual filings from 1997-2017. [1] The 2018 filings included more than 180 cases challenging disclosures made in connection with mergers and acquisitions (M&A filings) and the fifth-highest number of “core” filings (excluding M&A filings) on record. [2] As depicted in Figure 1 below, the number of filings against publicly traded companies in the Technology and Communications sectors (collectively referred to herein as “technology companies”) increased by 56% from 32 in 2017 to 50 in 2018. [3] In 2018, the likelihood of an S&P 500 technology company being targeted with a new securities class action rose to the highest level since 2002 with approximately 13% of such technology companies subject to new cases—up from 8.5% in 2017 and the second highest percentage across all sectors. [4]

These cases are typically filed by shareholders seeking to recover investment losses after a company’s stock price drops following corporate disclosures. Plaintiffs typically assert claims under Sections 10(b), 20(a) and Rule 10b-5 of the Securities Exchange Act of 1934 (the “1934 Act”) based upon allegedly false and misleading statements or omissions made by the company and its officers, and, if the alleged misstatements or omissions are made in connection with a securities offering, under Sections 11, 12(a)(2) and 15 of the Securities Act of 1933 (the “1933 Act”). In the merger context, plaintiffs typically assert claims under Sections 14(e) and 20(a) of the 1934 Act based upon allegedly false and misleading statements or omissions made by the selling and acquiring companies, and the selling companies’ officers and/or directors.

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Will Aruba Finish Off Appraisal Arbitrage and End Windfalls for Deal Dissenters? We Hope So

William J. Carney is Charles Howard Candler Professor of Law Emeritus at Emory University School of Law and Keith Sharfman is Professor at St. John’s University School of Law. This post is based on their article, recently published in the Delaware Journal of Corporate Law.Related research from the Program on Corporate Governance includes Using the Deal Price for Determining “Fair Value” in Appraisal Proceedings (discussed on the Forum here) and Appraisal After Dell, both by Guhan Subramanian.

The corporate law world has been abuzz of late about the commendable effort by Delaware’s courts to scale back “appraisal arbitrage”: a trading strategy predicated on deal dissenters receiving via appraisal litigation more for their shares than the deal prices from which they dissent. For years, parties engaging in appraisal arbitrage enjoyed the opportunity to initiate essentially risk free appraisal litigation with substantial upside potential, because it was assumed by courts and litigants that “fair value” entitled dissenters to at least the price of the deal they were rejecting and potentially more. But happily, this misunderstanding and misapplication of the law of appraisal now appears finally to have reached its end.

The Delaware Supreme Court struck two blows against appraisal arbitrage in 2017 in its DFC Global and Dell decisions, which both held that the Court of Chancery should not award fair value in excess of the deal price absent compelling evidence that the deal price is not a reliable indicator of fair value. Such evidence is inherently lacking when a sale is conducted at arms’ length, without conflicts, in a robust competitive process.

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PE Professionals on the Boards of their Portfolio Companies

Glenn West is a partner and Miae Woo is an associate at Weil, Gotshal & Manges LLP. This post is based on their Weil memorandum and is part of the Delaware law series; links to other posts in the series are available here.

Private equity deal professionals frequently serve on the boards of the portfolio companies in which their fund invests. And many of those portfolio companies are incorporated under Delaware law. The role of the private equity professional as a board member of a Delaware corporation is fundamentally different than the role of the private equity professional acting on behalf of the fund as a shareholder. One of the most well-known of those differences is that the private equity professional, while acting as a director, typically has individual fiduciary duties (at least in the corporate context) to the portfolio company and its shareholders as a whole. A less well-known difference is the fact that, unlike communications among the private equity firm’s professionals concerning the status and performance of its investment in a portfolio company, communications among two or more board members serving on behalf of a private equity firm regarding their actions as board members may constitute “books and records of the company” for which any other director may, with a proper purpose, demand the right to inspect under Section 220 of the Delaware General Corporation Law (the “DGCL”). In this modern age, of course, those communications can include any of the various forms of electronic communications and social media now available, including text messages (by mobile carriers or via social media) and emails. And it matters not that those communications may have been sent through your or your firm’s phone, or on your firm’s email server or your private email account. Understanding this fact may cause some pause before pressing send on a text message to your colleague and fellow board member concerning another board member’s approach or competence in considering an appropriate course of action for the company.

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CFTC Enforcement Announcement: Commodity Exchange Act Violations Involving FCPA

Geoffrey F. Aronow is partner, Michael S. Sackheim is senior counsel, and Sharon A. Rose is counsel at Sidley Austin LLP. This post is based on their Sidley memorandum.

On March 6, 2019, at the American Bar Association’s (ABA) National Institute on White Collar Crime, Commodity Futures Trading Commission (CFTC) Division of Enforcement Director James McDonald announced a new Enforcement Advisory regarding guidance on self-reporting violations of the Commodity Exchange Act (CEA) carried out through foreign corrupt practices. [1] At the same time, he indicated that the CFTC is working with other enforcement agencies to consider when actions that might violate the Foreign Corrupt Practices Act (FCPA) may also violate the CEA. This suggests that the CFTC continues to explore new areas in which to apply its expanded authority over fraud and manipulation provided by the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act.

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