Yearly Archives: 2019

Stakeholder Impartiality: A New Classic Approach for the Objectives of the Corporation

Amir Licht is Professor of Law at the Interdisciplinary Center Herzliya. This post is based on his recent article, forthcoming in Fiduciary Obligations in Business (Cambridge University Press).

The stockholder/stakeholder dilemma has occupied corporate leaders and corporate lawyers for over a century. Most recently, the Business Roundtable, in a complete turnaround of its prior position, stated that “the paramount duty of management and of boards of directors is to the corporation’s stockholders.” The signatories of this statement failed, however, to specify how they would carry out these newly stated ideals. Directors of large U.K. companies don’t enjoy this luxury anymore. Under section 172 of the Companies Act 2006, directors are required to have regard to the interests of the company’s employees, business partners, the community, and the environment, when they endeavor to promote the success of the company for the benefit of its members (shareholders). Government regulations promulgated in 2018 require large companies to include in their strategic reports a new statement on how the directors have considered stakeholders’ interest in discharging this duty.

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Weekly Roundup: October 11–17, 2019


More from:

This roundup contains a collection of the posts published on the Forum during the week of October 11–17, 2019.

Naming and Shaming: Evidence from Event Studies


Recent Trends in Shareholder Activism


CEO Pay Growth and Total Shareholder Return


Delaware Choice-of-Law Provisions in Restrictive Covenant Agreements


Observations on Clovis Oncology, Inc. Derivative Litigation



Institutional Investors’ Views and Preferences on Climate Risk Disclosure


ESG and Executive Remuneration—Disconnect or Growing Convergence?


One Size Does Not Fit All



The Passing of Retired Chancellor William T. Allen


Disclosure on Cybersecurity Risk and Oversight



Dual-Class Shares: A Recipe for Disaster

Dual-Class Shares: A Recipe for Disaster

Rick A. Fleming is an Investor Advocate with the U.S. Securities and Exchange Commission. This post is based on Mr. Fleming’s recent remarks at the ICGN Miami Conference. The views expressed in this post are those of Mr. Fleming and do not necessarily reflect those of the Securities and Exchange Commission or its staff. Related research from the Program on Corporate Governance includes The Untenable Case for Perpetual Dual-Class Stock (discussed on the Forum here); The Perils of Small-Minority Controllers (discussed on the Forum here); The Perils of Dell’s Low-Voting Stock (discussed on the Forum here); the keynote presentation on The Lifecycle Theory of Dual-Class Structures; and the posts The Perils of Lyft’s Dual-Class Structure and The Perils of Pinterest’s Dual-Class Structure, all by Lucian Bebchuk and Kobi Kastiel.

Thank you, Kerrie Waring, for your kind introduction. I appreciate the opportunity to speak at a conference where you will spend the next two days discussing the stewardship responsibilities of shareholders. [1] I know you take those responsibilities seriously, and I do my best to encourage a regulatory environment that makes companies accountable to their shareholders.

Of course, before I begin, I must give the standard disclaimer given by all SEC speakers, that the views I express are my own and do not necessarily represent the views of the Securities and Exchange Commission, the Commissioners, or my colleagues on the Commission staff.

Let me start by thanking this group for your engagement with the SEC over the years. Feedback from groups like ICGN is especially valuable because you provide real-world insight into the types of information that investors utilize to make investment and voting decisions. The Commission and its staff need to know the value you place on things like quarterly reporting, auditor attestation of internal controls over financial reporting, ESG disclosure, the proxy voting process, and numerous other matters.

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Public Enforcement after Kokesh: Evidence from SEC Actions

Urska Velikonja is a Professor of Law at Georgetown University Law Center. This post is based on her recent article, forthcoming in the Georgetown Law Journal.

On September 20, 2019, the U.S. House Financial Services Committee approved by 49-5 votes a now-bipartisan Investor Protection and Capital Markets Fairness Act (H.R. 4344), also known as the Kokesh-fix. The Bill authorizes the SEC to bring claims for disgorgement in actions filed in court (the SEC has had express statutory authority to bring disgorgement claims in administrative proceedings since 1990) and extends the statute of limitations for disgorgement, injunctions, and officer & director bars to 14 years (from 5 years today).

The fix is necessary because of a 2017 Supreme Court decision in Kokesh v. SEC, which held that disgorgement was a penalty, like a civil fine or forfeiture, and as such subject to the 5-year statute of limitations set out in section 28 U.S.C. 2462. According to an earlier Supreme Court decision in Gabelli v. SEC, the 5-year clock begins to run the moment the violation is completed, not when the agency discovers it. That means that the SEC must detect the violation, investigate, and file a lawsuit within the 5-year window. Any violations outside that window cannot be prosecuted, even if part of a long-running fraudulent scheme such Allan Stanford’s or Bernard Madoff’s Ponzi schemes.

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Disclosure on Cybersecurity Risk and Oversight

Bridget Neill is EY Americas Vice Chair, Public Policy; Chuck Seets is EY Americas Assurance Cybersecurity Leader; and Steve W. Klemash is Americas Leader, EY Center for Board Matters. This post is based on their EY memorandum.

Cybersecurity attacks are among the gravest risks that businesses face today. The EY 2019 CEO Imperative Survey found that CEOs ranked national and corporate cybersecurity as the top global challenge to business growth and the global economy.

In this environment, stakeholders want to better understand how companies are preparing for and responding to cybersecurity incidents. They also want to understand how boards are overseeing these critical risk management efforts. Some of the answers can be found in public disclosures.

The U.S. Securities and Exchange Commission (SEC) issued guidance in 2018 promoting clearer and more robust disclosure about cybersecurity risks and incidents and how boards discharge their cybersecurity risk oversight responsibility. Our 2018 Cybersecurity disclosure benchmarking report explored how companies were responding to this guidance.

We undertook the same research this year to help inform stakeholders of emerging trends and developments. We analyzed three areas of cybersecurity-related disclosures in the proxy statements and Form 10-K filings of Fortune 100 companies from 2018-2019: board oversight (including risk oversight approach, board-level committee oversight, and director skills and expertise), statements on cybersecurity risk, and risk management (including cybersecurity risk management efforts, education and training, engagement with outside security experts and use of an external advisor). We found that many companies are enhancing their cybersecurity disclosures, with the most significant changes related to board oversight practices.

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The Passing of Retired Chancellor William T. Allen

Leo E. Strine, Jr. is Chief Justice of the Delaware Supreme Court, the Austin Wakeman Scott Lecturer on Law and a Senior Fellow of the Harvard Law School Program on Corporate Governance.

The Delaware Judiciary was saddened to learn of the passing on Sunday of retired Chancellor William T. Allen, a giant of the corporate bar, academia, and the Delaware Bench. The Judiciary expresses its deepest condolences to the friends and family of Chancellor Allen.

Allen, 75, was appointed as Chancellor of the Delaware Court of Chancery by Governor Mike Castle in 1985. He served until 1997 when he returned to his alma mater, New York University, to teach law and re-entered private practice at Wachtell, Lipton, Rosen & Katz.

“Our nation lost one of the finest jurists of the last fifty years yesterday,” said Delaware Supreme Court Chief Justice Leo E. Strine, Jr. “Chancellor Allen set a standard of excellence that made Delaware stand out in the eyes of all sophisticated observers. Bill Allen, the person, set a standard as a husband, father, friend, and caring professor to which we should all aspire. For me personally, he was a mentor, source of wisdom, and an inspiration. Everyone in Delaware owes him a debt of gratitude for what he did for our state, and our Judiciary’s hearts are with his wife and children, as they endure the loss of this special man.”

“I was saddened on Sunday to learn of the passing of former Chancellor Allen—one of Delaware’s finest legal minds,” said Delaware Governor John Carney. “Bill helped set and maintain a reputation of excellence on Delaware’s Court of Chancery. He was known and respected across our country, and by many citizens in our state, for his judgment and his fairness. My thoughts and prayers remain with Bill’s family and his many friends during this difficult time,” he said.

William T. Allen became Chancellor in 1985, at a time when the takeover boom of the 1980s was in full swing and the Delaware Court of Chancery was the subject of intense national scrutiny. During that time, Chancellor Allen’s decisions, often produced under extreme time pressure, were known for their lucid and lively writing style and incisive analysis. His rulings also showed a deep concern for the integrity of the law, the need for those with power to use it with fidelity to those they represented, and for their understanding of scholarship relevant to the matters before the Court. For that reason, Chancellor Allen was considered to be one of the finest corporate law judges of the era and, even more broadly, as one of the finest judges of his generation on any court. When Delaware most needed a Chancellor that could provide trusted corporate law rulings that all would respect, it was fortunate to have Bill Allen in that critical position.

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Loosey-Goosey Governance: Four Misunderstood Terms in Corporate Governance

David F. Larcker is James Irvin Miller Professor of Accounting at Stanford Graduate School of Business and Brian Tayan is a Researcher with the Corporate Governance Research Initiative at Stanford Graduate School of Business. This post is based on their recent paper. Related research from the Program on Corporate Governance includes What Matters in Corporate Governance? by Lucian Bebchuk, Alma Cohen, and Allen Ferrell and The Elusive Quest for Global Governance Standards by Lucian Bebchuk and Assaf Hamdani.

We recently published a paper on SSRN (“Loosey-Goosey Governance: Four Misunderstood Terms in Corporate Governance”) that examines four central concepts that are widely discussed—even foundational to the problem—but loosely defined and poorly understood.

A reliable corporate governance system is considered to be an important requirement for the long-term success of a company. Unfortunately, after decades of research, we still do not have a clear understanding of the factors that make a governance system effective. Our understanding of governance suffers from two problems. The first problem is the tendency to overgeneralize across companies—to advocate common solutions without regard to size, industry, or geography and without understanding how situational differences influence correct choices. The second problem is the tendency to refer to central concepts or terminology without first defining them. That is, concepts are loosely referred to without a clear understanding of the premises, evidence or implications of what is being discussed. We call this “loosey goosey governance.”

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One Size Does Not Fit All

Martin Lipton is a founding partner of Wachtell, Lipton, Rosen & Katz, specializing in mergers and acquisitions and matters affecting corporate policy and strategy. This post is based on a Wachtell Lipton memorandum by Mr. Lipton.

In a well-researched and documented paper, David Larcker and Brian Tayan of the Rock Center for Corporate Governance at Stanford University have demonstrated the ringing truth of the oft heard “one size doesn’t fit all” criticism of the stylized corporate governance principles promulgated by organizations like Institutional Shareholder Services, Glass Lewis, Council of Institutional Investors and many major institutional investors.

The authors’ points are best summarized below:

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ESG and Executive Remuneration—Disconnect or Growing Convergence?

Peter Reilly is Senior Director, Corporate Governance at FTI Consulting; and, Aniel Mahabier is CEO of CGLytics. This post is based on a joint FTI Consulting and CGLytics paper authored by Mr. Reilly based on data from CGLytics. 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 Socially Responsible Firms by Alan Ferrell, Hao Liang, and Luc Renneboog (discussed on the Forum here).

In recent years, the level of capital flowing into funds that incorporate ESG criteria has grown considerably and what was once an issue on the fringes of investment is increasingly part of the material financial analysis of a company’s value.

Consequently, ESG rating agencies (who help investors identify ESG risk) have grown in prominence; regulators have commenced a clampdown on so-called “greenwashing”; and, investors continue to pressurise companies to provide greater details on ESG factors likely to affect their business—either through engagement or, less frequently, shareholder proposals. Indeed, a recent report found that, at least based on publicly disclosed documents, climate change was the number one issue for institutional investors in their stewardship of investee companies.

In this post, we have analysed whether the ratcheting up of pressure on companies to enhance their ESG frameworks has permeated another important area—executive remuneration at UK and Irish companies. For three decades, pay has been identified as a key driver of C-suite behaviour. Despite what appears to be a relentless focus on ESG, the incorporation of ESG measures into executive pay packages has lagged somewhat.

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Institutional Investors’ Views and Preferences on Climate Risk Disclosure

Zacharias Sautner is Professor of Finance at Frankfurt School of Finance & Management. This post is based on a recent paper authored by Professor Sautner; Emirhan Ilhan, PhD candidate in Finance at Frankfurt School of Finance & Management; Philipp Krueger, Associate Professor of Finance at the University of Geneva; and Laura T. Starks, the Charles E. and Sarah M. Seay Regents Chair in Finance at the University of Texas at Austin McCombs School of Business. Related research from the Program on Corporate Governance includes Socially Responsible Firms by Alan Ferrell, Hao Liang, and Luc Renneboog (discussed on the Forum here).

Financial market efficiency relies on timely and accurate information regarding firms’ risk exposures. An increasingly important risk exposure relates to climate change. Climate risks can originate from more severe and more frequent natural disasters, government regulation to combat a rise in temperature, or climate-related innovations that disrupt existing business models. Consequently, high-quality information on firms’ climate risk exposures is necessary for making informed investment decisions and efficient pricing of the risks and opportunities related to climate change.

While many regulators and investors acknowledge the fact that firms’ climate risk exposures are important, they also believe current climate risk disclosure practices are insufficient. For example, Mark Carney, Governor of the Bank of England, called in a speech in 2015 for more to be done “to develop consistent, comparable, reliable, and clear disclosure around the carbon intensity of different assets.”.

On a more positive note, there have been attempts by regulators, governments, and NGOs to address the shortcomings in current climate risk disclosures. For instance, in 2015, the Financial Stability Board initiated the Task Force on Climate-related Financial Disclosures (TCFD), with the objective of developing voluntary climate-related financial risk disclosures. On behalf of investors representing over $87 trillion in assets under management, CDP collects climate-related information through a questionnaire. In addition to these initiatives, some countries started to mandate climate-related disclosures.

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