Weekly Roundup: October 4

This roundup contains a collection of the posts published on the Forum during the week of October 4–10, 2019.

SEC Expansion of “Testing-the-Waters” Communications to All Issuers

Posted by Michael Zeidel, Andrew J. Brady, and Ryan J. Adams, Skadden, Arps, Slate, Meagher & Flom LLP, on Friday, October 4, 2019

Tags: Capital markets, Disclosure, IPOs, JOBS Act, Reporting regulation, SEC, Securities Act, Securities Act Rule 163, Securities regulation

Response to CII Proposal to Amend DGCL

Posted by David Berger and Amy Simmerman, Wilson Sonsini Goodrich & Rosati, on Friday, October 4, 2019

Tags: Controlling shareholders, Council of Institutional Investors, Delaware law, DGCL, ESG, Institutional Investors, Securities regulation, Shareholder primacy, State law

Delaware Court of Chancery Again Sustains Oversight Claims

Posted by William Savitt, Ryan A. McLeod, and Anitha Reddy, Wachtell, Lipton, Rosen & Katz, on Saturday, October 5, 2019

Tags: Board oversight, Boards of Directors, Caremark, Compliance and disclosure interpretation, Delaware cases, Delaware law, Derivative actions, Director liability, Disclosure, Fiduciary duties, Risk oversight, Securities litigation, Shareholder suits, Shareholder value

Women Board Seats in Russell 3000 Pass the 20% Mark

Posted by Betty Moy Huber and Paula H. Simpkins, Davis Polk & Wardwell LLP, on Saturday, October 5, 2019

Tags: Board composition, Boards of Directors, Diversity, Index funds, Institutional Investors, Shareholder voting, Stewardship

Taking a Play out of the Financial Acquirer’s Playbook

Posted by Jamie Leigh, Eric Schwartzman, and Ian Nussbaum, Cooley LLP, on Sunday, October 6, 2019

Tags: Acquisition agreements, Contracts, Covenants, Delaware cases, Delaware law, Merger litigation, Mergers & acquisitions, Strategic buyers, Termination, Termination fees

Implied Private Right of Action Under the Investment Company Act

Posted by Rich Lincer, Robin Bergen, and Adam Brenneman, Cleary Gottlieb Steen & Hamilton LLP, on Monday, October 7, 2019

Tags: Contracts, Investment Company Act, Private funds, Securities litigation, U.S. federal courts

The Reverse Agency Problem in the Age of Compliance

Posted by Asaf Eckstein (Ono Academic College) and Gideon Parchomovsky (University of Pennsylvania), on Monday, October 7, 2019

Tags: Agency costs, Boards of Directors, Derivative suits, Director liability, DOJ, Fiduciary duties, Misconduct, Reputation, Securities enforcement, Settlements

Climate in the Boardroom

Posted by Eli Kasargod-Staub, Majority Action, on Monday, October 7, 2019

Tags: BlackRock, Boards of Directors, Climate change, Disclosure, Environmental disclosure, ESG, Institutional Investors, Lobbying, Political spending, Shareholder proposals, Shareholder voting, Sustainability, Vanguard

Shareholder Activism and Governance in France

Posted by Adam O. Emmerich, Sabastian V. Niles, and John L. Robinson, Wachtell, Lipton, Rosen & Katz, on Tuesday, October 8, 2019

Tags: Disclosure, EU, France, International governance, Securities regulation, Shareholder activism

Self-Driving Corporations?

Posted by John Armour and Horst Eidenmueller (University of Oxford), on Tuesday, October 8, 2019

Tags: Algorithmic trading, Board oversight, Boards of Directors, Charter & bylaws, Financial technology

A Stakeholder Approach and Executive Compensation

Posted by Seymour Burchman and Mark Emanuel, Semler Brossy Consulting Group, LLC, on Tuesday, October 8, 2019

Tags: Boards of Directors, Executive Compensation, Incentives, Management, Pay for performance, Say on pay, Shareholder voting, Stakeholders

The Role of the Creditor in Corporate Governance and Investor Stewardship

Posted by George S. Dallas, International Corporate Governance Network (ICGN), on Wednesday, October 9, 2019

Tags: Accounting, Banks, Corporate debt, Credit risk, Debtor-creditor law, ESG, Financial institutions, Institutional Investors, Long-Term value, Risk management, Sovereign debt, Stewardship

Secondary Liability Risks for Private Funds—Recent Developments

Posted by Ari Berman, Tom Hill, and Cassie Lentchner, Pillsbury Winthrop Shaw Pittman LLP, on Wednesday, October 9, 2019

Tags: Boards of Directors, Compliance & ethics, D&O insurance, DOJ, Due diligence, Institutional Investors, Liability standards, Pension funds, Private funds, Secondary liability, Securities enforcement

Clear and Unambiguous Terms of Merger Agreement

Posted by Jason Halper, Jared Stanisci, and Sara Bussiere, Cadwalader, Wickersham & Taft LLP, on Wednesday, October 9, 2019

Tags: Acquisition agreements, Contracts, Delaware cases, Delaware law, Merger litigation, Mergers & acquisitions, Termination, Termination fees

Virtual Shareholder Meetings in the U.S

Posted by Marie Clara Buellingen, ISS Custom Research, on Thursday, October 10, 2019

Tags: Boards of Directors, Engagement, Institutional Investors, Shareholder meetings, Shareholder voting, Virtual meetings

Corporate Control Across the World

Posted by Gur Aminadav and Elias Papaioannou (London Business School), on Thursday, October 10, 2019

Tags: Control rights, Controlling shareholders, Family firms, International governance, Investor protection, Legal history, Legal systems, Ownership

Predicting Long Term Success for Corporations and Investors Worldwide

Posted by Bhakti Mirchandani, Allen He, and Victoria Tellez, FCLTGlobal, on Thursday, October 10, 2019

Tags: Board composition, Board performance, Boards of Directors, Diversity, Engagement, Firm performance, Institutional Investors, Long-Term value, R&D, Repurchases

Weekly Roundup: October 4–10, 2019