Yearly Archives: 2019

Audit Committee Reports to Shareholders

Steve W. Klemash is Americas Leader, Jamie Smith is Investor Outreach and Corporate Governance Specialist, and Jennifer Lee is Audit and Risk Specialist, all at the EY Americas Center for Board Matters. This post is based on their EY memorandum.

As US public companies and their audit committees maintain an almost decade-long trend of increased voluntary disclosures to shareholders about audits, it’s clear that rigorous oversight of public company audits by independent audit committees helps protect investors, and disclosing information about that oversight process contributes to investor confidence.

Many investors, regulators and other stakeholders share the view that increased transparency regarding the audit committee’s oversight process builds investor confidence. [1]

EY’s Center for Board Matters (CBM) measured this trend in its eighth annual assessment of voluntary disclosures by Fortune 100 companies relating to the important audit oversight role carried out by audit committees.

To help raise awareness of the audit, and audit committees’ important role in the audit process, the CBM seeks to shed light on the types of information about the audit available to investors—beyond disclosures required by laws or regulations—and how the availability of information is increasing.

To carry out this assessment, CBM has reviewed the proxy statements of Fortune 100 companies to compare audit-related disclosures from 2012–19, providing a clear view of trends.

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Financial Contracting with the Crowd

Usha Rodrigues is the M.E. Kilpatrick Chair of Corporate Finance and Securities Law at the University of Georgia School of Law. This post is based on her recent article, forthcoming in Emory Law Journal.

Today’s equity crowdfunding is a sucker’s game. It’s no wonder. The prospect of allowing the general public—widows, orphans, grandmothers, and all—the chance to invest in private companies for the first time in eighty years understandably spooked the powers that be. First Congress and then the SEC in turn layered requirement after requirement on crowdfunding companies seeking to raise money from the public capital markets. The result, unfortunately, is a burdensome compilation of regulations that is widely regarded as not being worth the effort, especially when companies can raise at most only $1.07 million for their troubles.

Regulation CF almost certainly does not reflect the investor protections that market forces on their own would require from companies seeking funding. But, of course, that’s sort of the point—at least since 1933, the government has always dictated what investor protections (largely disclosure based) firms seeking public money should provide. What would the market for investor protections look like without the interpolation of government regulation? In the past, the answer to that question could come only from speculation. Yet if we could look to actual market demands, we might discover more effective investor protections than what legislators and bureaucrats dream up. Coupling such market-tested protections with raising the cramped amounts ceiling might well rescue equity crowdfunding from its current irrelevancy.

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Weekly Roundup: September 6-12, 2019


More from:

This roundup contains a collection of the posts published on the Forum during the week of September 6-12, 2019.

Implicit Communications and Enforcement of Corporate Disclosure Regulation


Putting to Rest the Debate Between CSR and Current Corporate Law


Proxy Scorecard and Fund Competition


SEC Proposal Concerning Regulation S-K


Presidential Authority to Ban Companies from Operating in China


Firearms—Investor Responses amid Political Inaction


Incorporating Market Reactions Into SEC Rulemaking


Rule 14a-8 No-Action Requests


Executive Compensation and ESG


The SEC and Regulation of Exchange-Traded Funds: A Commendable Start and a Welcome Invitation


Proxy Plumbing Recommendation


Making a Comeback: SEC Fines for Regulation FD Violations


A Tale of Two Markets: Regulation and Innovation in Post-Crisis Mortgage and Structured Finance Markets



Remarks to the Economic Club of New York


Finalized Changes to Volcker Rule


Board Compliance


Stakeholder Governance and the Freedom of Directors to Embrace Long-Term Value Creation

Richard S. Horvath is Of Counsel at Paul Hastings LLP. This post is based on his Paul Hastings memorandum. 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); Can We Do Better by Ordinary Investors? A Pragmatic Reaction to the Dueling Ideological Mythologists of Corporate Law by Leo E. Strine (discussed on the Forum here); and Socially Responsible Firms by Alan Ferrell, Hao Liang, and Luc Renneboog (discussed on the Forum here).

The debate regarding the adoption of sustainable governance principles has reached a crescendo. This debate started with whether corporate boards should factor Environmental, Social, and Governance (“ESG”) and similar sustainability concerns into their decision-making process. That debate is fairly settled. Boards should. The debate has since shifted to whether the dominant shareholder primacy model embraced by Delaware should be replaced by a stakeholder governance model as a proxy for ESG initiatives.

Under existing Delaware law, a board of directors can—and many times should—consider ESG factors in their efforts to prioritize shareholder value. That a board of directors is protected in approving ESG initiatives with the potential to promote shareholder value, however, is not enough. The board also needs investor support. If desiring to adopt ESG initiatives, a board could develop meaningful relationships with the company’s long-term shareholders—including permanent investors such as mutual funds and ETFs. Indeed, many of these long-term shareholders are increasingly issuing ESG policy statements and committing to long-term stewardship principles. There is thus a growing overlap between long-term shareholders on one hand and stakeholders more broadly on the other to create sustainable value. And that value creation squarely fits within the current shareholder primacy model. No change to a stakeholder governance model is needed.

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Board Compliance

Brandon L. Garrett is the L. Neil Williams, Jr. Professor of Law at Duke Law School. This post is based on a recent article, forthcoming in the Minnesota Law Review, by Professor Garrett; John Armour, the Hogan Lovells Professor of Law and Finance at the University of Oxford; Jeffrey N. Gordon, Richard Paul Richman Professor of Law at Columbia Law School; and Geeyoung Min, Assistant Professor at Michigan State University College of Law.

Do corporate boards care about compliance? Surely, they should, because of the potentially catastrophic consequences of ignoring it. Take the example of the recent compliance failures at Wells Fargo, the large bank, which pioneered a strategy of “cross-selling” financial products to its customers. This turned out to be profitable, and the bank sought to maximize its roll-out by setting branch staff powerful financial incentives to maximize sales of financial products to its customers. Unfortunately, these incentives triggered widespread fraud on the part of the bank’s employees, with customers discovering products had been charged to their names without their consent. After the Wells Fargo scandal broke, regulators identified numerous weaknesses in the firm’s compliance programs that had permitted the misconduct to go unchecked. The bank paid about $2 billion in fines and fired over 5,000 employees; the CEO resigned after Congressional hearings. In response, the Board commissioned an outside investigation into how this compliance failure happened on its watch. Yet, federal regulators were deeply unsatisfied with the Board’s response. In early 2018, the Federal Reserve took the unusual step of restricting the growth of the bank as four Board members departed; the Fed also sent a letter to the former lead independent director, describing his “many pervasive and serious compliance and conduct failures.”

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Finalized Changes to Volcker Rule

Lee Meyerson is head of Simpson Thacher’s Financial Institutions Practice, and Keith Noreika is a partner at Simpson Thacher & Bartlett LLP. This post is based on a Simpson Thacher memorandum by Mr. Meyerson, Mr. Noreika, Adam Cohen, and Spencer Sloan.

Federal financial regulators responsible for implementing the Volcker Rule have issued a final rule to revise a number of provisions of the Volcker Rule’s 2013 implementing regulations (the “2013 Rule”). The final rule, which is largely similar to the agencies’ proposed rulemaking issued in June 2018, generally seeks to clarify certain definitions, exemptions and compliance requirements under the 2013 Rule, and to tailor compliance requirements to be commensurate with a banking entity’s level of trading activity.

The final rule’s changes relate primarily to the Volcker Rule’s proprietary trading and compliance program requirements. While the agencies adopted certain limited changes to the Volcker Rule’s covered fund-related provisions, the agencies noted that they continue to consider other aspects of the covered fund provisions on which they sought comment in the 2018 proposal, and intend to issue a separate proposed rulemaking that specifically addresses those areas.

The final rule will be effective on January 1, 2020. Banking entities will have a one-year grace period, until January 1, 2021, to fully comply with the final rule’s amendments, but may also voluntarily comply, in whole or in part, with the amendments prior to such compliance date.

Following is a high-level summary of certain key features of the final rule.

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Remarks to the Economic Club of New York

Jay Clayton is Chairman of the U.S. Securities and Exchange Commission. This post is based on Chairman Clayton’s remarks to the Economic Club of New York, 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.

Thank you for having me and thanks to those who have contributed to today’s event—in particular, the Economic Club, Chair, Marie-Josée [Kravis], President, Barbara [Van Allen], as well as panelists Bob [Pisani] and Harold [Ford].

I am grateful to be back. The Economic Club is where I gave my first public speech as SEC Chairman in July 2017. In that speech, I discussed the principles that would guide my SEC Chairmanship. [1] I believe we—and “we” is important to me—have followed those principles. We—our exceptional Division and Office heads and the approximately 4,400 dedicated women and men, who are the SEC—have accomplished a substantial amount. [2] Yet, let there be no doubt. There is more to do.
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Proxy Season Rising Demand for Board Oversight of ESG

Peter Reali is Senior Director of Responsible Investing and Anthony Garcia is Director of Responsible Investing at Nuveen, LLC. This post is based on their Nuveen memorandum. 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) and Social Responsibility Resolutions by Scott Hirst (discussed on the Forum here).

The 2019 proxy season was marked by an increased willingness among shareholders to hold boards accountable on director elections, say- on-pay, and environmental, social and governance (ESG) shareholder proposals. For example, almost 5 percent of directors received less than 80 percent support for her/ his election, which is the highest proportion since the aftermath of the financial crisis. [1] This suggests that investors are beginning to hold boards accountable for failing to improve governance practices and integrate ESG considerations into their overall strategy and oversight responsibilities.

Election of Directors

The most notable example of investors holding boards accountable took place at companies lacking gender diversity at the director level. Looking at boards prior to proxy season, the number of S&P 500 companies with no female board representation was only 1 percent; [2] whereas nearly 25 percent of Russell 2000 companies still had no gender diversity at the board level prior to this year’s proxy season. [3] This disparity between large-cap companies and mid- and small-cap companies was part of the impetus for the Nuveen Responsible Investing team’s “Women on Boards” engagement initiative, which began in 2018.

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A Tale of Two Markets: Regulation and Innovation in Post-Crisis Mortgage and Structured Finance Markets

Adam J. Levitin is the Agnes N. Williams Research Professor at Georgetown University Law Center and William W. Bratton is Nicholas F. Gallicchio Professor of Law and Co-Director, Institute for Law & Economics at the University of Pennsylvania Law School. This post is based on their recent paper.

Our paper, A Tale of Two Markets: Regulation and Innovation in Post-Crisis Mortgage and Structured Finance Markets, takes the occasion of the tenth anniversary of the financial crisis to review recent developments in the structured products market, connecting the emergent pattern to post-crisis regulation.

The financial crisis stemmed from excessive risk-taking and shabby practices in the “subprime” segment of the home mortgage market, a market that got its financing from an array of “toxic” products and investment vehicles created in the structured credit market—private-label mortgage-backed securities (PLS), collateralized debt obligations (CDOs), collateralized debt obligations squared (CDO2s), synthetic securitizations, and structured investment vehicles (SIVs). These products provided the funding for the mortgage lending that enabled housing prices to be bid up in an unsustainable bubble.

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Making a Comeback: SEC Fines for Regulation FD Violations

Susan S. Muck and Michael S. Dicke are partners and Vincent Barredo is an associate at Fenwick & West LLP. This post is based on their Fenwick memorandum.

For the first time in six years, the U.S. Securities and Exchange Commission issued an enforcement action against a company solely for Regulation FD violations. On Aug. 20, the SEC announced that it charged life sciences company TherapeuticsMD (TMD) with violations of Regulation FD for selectively communicating to sell-side analysts information about interactions between TMD and the U.S. Food and Drug Administration (FDA) regarding the potential approval of one of TMD’s drugs. To settle the matter, TMD agreed to pay a $200,000 fine.

Especially for younger public companies, it is a good reminder of the necessity of having robust disclosure controls over the public dissemination of material information. The fact pattern also serves as a warning for officers of public companies to resist the natural temptation to provide analysts additional details and commentary about unfavorable public news where that same commentary is not also disseminated publicly through an FD-compliant method.

Regulation FD

Regulation FD prevents the selective disclosure of material non-public information to analysts, other securities market professionals or individual stockholders. Regulation FD requires issuers to make simultaneous disclosure of material information to market professionals and to the public generally. If an issuer unintentionally discloses material information selectively to market professionals, it must remedy that action by making prompt public disclosure of the information.

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