Yearly Archives: 2019

Peer Group Choice and Chief Executive Officer Compensation

David F. Larcker is James Irvin Miller Professor of Accounting at Stanford Graduate School of Business; Charles McClure is Assistant Professor at the University of Chicago Booth School of Business; and Christina Zhu is Assistant Professor at the Wharton School at the University of Pennsylvania. Related research from the Program on Corporate Governance includes The CEO Pay Slice by Lucian Bebchuk, Martijn Cremers and Urs Peyer (discussed on the Forum here).

Our new study examines the board of director choice of peer firms used in setting CEO compensation. One controversial question is whether selecting relatively large, highly paid peer firms is appropriate. The common rationale is that many firms want to attract and hire highly talented executives from larger firms with higher levels of CEO pay. However, governance activists and proxy advisors believe some firms select peers that are larger and/or have higher compensation levels simply to justify a high level of CEO pay.

We provide a different interpretation of peer group choice than prior research on this topic. Previous studies tend to conclude that peer group choice is a result of aspirational labor market incentives and that corporate governance considerations are of minor importance. However, prior research tends to focus on large firms that confront considerable scrutiny regarding their corporate governance. In such a sample, it will be difficult to observe whether governance considerations affect observable board of director decisions such as CEO compensation. Using a comprehensive sample with many small and medium-sized firms that are less subject to public scrutiny, we find that both aspirational and rent extraction motivations influence the selection of peer groups for setting CEO compensation.

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Proposed “Test-the-Waters” Communications Rules

Steve Quinlivan is partner and Bryan Pitko is of counsel at Stinson Leonard Street LLP. This post is based on their Stinson Leonard Street memorandum.

The SEC has proposed new rules that would permit all issuers to solicit investor views about potential offerings to be taken into account at an earlier stage in the process than is the case today. The new rule and related amendments would expand the “test-the-waters” accommodation—currently available to emerging growth companies or “EGCs”—to all issuers, including investment company issuers. The ability for EGCs to engage in test-the-waters-communications was provided for under the JOBS Act.

The proposed rule eases regulatory burdens because Section 5(c) of the Securities Act prohibits any written or oral offers prior to the filing of a formal registration statement with the SEC. Once an issuer has filed a registration statement, Section 5(b)(1) limits written offers to a formal prospectus that conforms to the requirements of the Securities Act. As such, without the proposed rule change, most communications by issuers seeking to gauge investor interest would violate the Securities Act and constitute what is popularly referred to as “gun jumping.” According to the SEC, the ability of EGCs to engage in test-the-waters communications under the JOBS Act has not impaired investor protection.

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Change the Conversation—Redefining How Companies Engage Investors on Sustainability

Kristen Lang is a senior director at Ceres. This post is based on her Ceres 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).

When Ceres released The Ceres Roadmap for Sustainability—our vision for corporate sustainability leadership in the 21st century—in 2010, sustainable business leaders were easily identified and few in number. Now it is commonplace to find a “sustainability” or “corporate responsibility” section included on company websites. Increased public awareness, regulation and investor interest has made acknowledging environmental and social impacts, and claiming a commitment to be “sustainable,” a mainstream practice for doing business today.

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Reconsidering Stockholder Primacy in an Era of Corporate Purpose

David Berger is a partner at Wilson Sonsini Goodrich & Rosati. This post is based on a recent article by Mr. Berger, forthcoming in the Business Lawyer.

There is now a growing consensus that corporations must focus on corporate purposes beyond stockholder value. As Blackrock’s Larry Fink recognized in his 2018 letter to CEOs (and largely reiterated in his 2019 letter), “society is demanding that companies, both public and private, serve a social purpose. To prosper over time, every company must not only deliver financial performance, but also show how it makes a positive contribution to society. Companies must benefit all of their stakeholders, including shareholders, employees, customers and the communities in which they operate. Without a sense of purpose, no company, either public or private, can achieve its full potential.” [1] Similar views have been expressed by, among others, State Street, Vanguard and other institutional owners. [2]

Yet the continuing dominance of stockholder primacy ideology constrains the debate on corporate purpose by limiting the participants to stockholders, corporate leaders, corporate lawyers and scholars. Left out of this debate are the many who are significantly impacted by corporate behavior, including the communities where corporations are based, employees who rely on the corporation for the bulk of their income and wealth, consumers who use the corporation’s products, and broader governmental interests who expect the corporation to follow the rules of law established by society and which lack the resources to continually monitor the corporation to ensure that the established rules are being followed. In short, the constituents identified by Larry Fink and others as being at the core of the corporate purpose debate are the same groups excluded from participating in the debate over corporate purpose.

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Oral History Documentary Videos on Landmark Developments in Delaware Corporate Law

Michael Wachter is the William B. and Mary Barb Johnson Professor of Law and Economics and Co-Director of the Institute for Law and Economics, at the University of Pennsylvania Law School; Lawrence A. Hamermesh is Executive Director, Institute for Law and Economics at the University of Pennsylvania Law School; and Nadia Jannetta is Managing Director at the Institute for Law and Economics at the University of Pennsylvania Law School. This post is part of the Delaware law series; links to other posts in the series are available here.

The Institute for Law and Economics (ILE) at the University of Pennsylvania Law School has released two new oral history documentary videos that offer unprecedented insight into some of the most pivotal developments in corporate law. One of the new videos tells the story of the famous Walt Disney shareholder derivative litigation challenging Michael Ovitz’s massive severance compensation. The other video details the gestation and birth of Section 102(b)(7) of the Delaware General Corporation Law, permitting corporations to eliminate monetary liability of directors for certain breaches of fiduciary duties.

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Commodity Exchange Act Liability for Smart Contract Coders

Jonathan Marcus is of counsel and Trevor Levine and Daniel O’Connell are associates at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on a Skadden memorandum by Mr. Marcus, Mr. Levine, Mr. O’Connell, and Stuart Levi.

The Commodity Futures Trading Commission (CFTC) is considering how smart contract applications on the blockchain implicate its jurisdiction and enforcement authority. Smart contracts are pieces of code on a blockchain that execute certain steps (such as moving a cryptocurrency from one wallet to another) when a condition or set of conditions is met. They are not “contracts” in the traditional legal sense, nor are they “smart” in the sense of using artificial intelligence or similar technologies.

In October 2018, CFTC Commissioner Brian Quintenz discussed at the GITEX Technology Week Conference how the existing Commodity Exchange Act (CEA) regulatory framework may apply to this new technology. If the CFTC determines that smart contracts that execute on a blockchain facilitate trading in off-exchange futures, swaps with retail customers or event contracts the agency deems contrary to the public interest, how will it approach enforcement? While Quintenz addressed this question in hypothetical terms, it is clear that applying the CEA to potential trading applications on a blockchain will require the CFTC to expand its focus to smart contracts. In doing so, the CFTC will need to consider how to adapt a preexisting regulatory scheme to new technology—in this case, a technology whose decentralized structure is fundamentally different from the structure of intermediation—exchanges, brokers and advisors—on which the CEA is based.

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The Director-Shareholder Engagement Guidebook

Amy Freedman is Chief Executive Officer, Wes Hall is Executive Chairman and Founder, and Ian Robertson is Executive Vice President of Communication Strategy at Kingsdale Advisors. This post is based on a their Kingsdale memorandum. Related research from the Program on Corporate Governance includes Dancing with Activists by Lucian Bebchuk, Alon Brav, Wei Jiang, and Thomas Keusch (discussed on the Forum here).

When you hear the phrase “shareholder engagement” we want you to think “shareholder trust.” Gaining the trust of your shareholders doesn’t happen overnight. It grows slowly through an ongoing commitment to transparency and openness.

As the elected representatives of shareholders, it is critical that independent directors not only participate in shareholder engagement but assume a leadership role.

Tone from the top is important and in today’s complex governance environment the message needs to be sent that your company has a culture where shareholder voices matter. And not just when there is a problem. Year-round, shareholders need to know there is a conduit to the board, should they need it.

Historically, the paradigm for shareholder communication has been set up backwards. Meaning it has been structured to protect—not engage—directors from shareholders by filtering requests for contact through the buffer of management.

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Rise of the Shadow ESG Regulators

Paul Rissman is Co-Founder of Rights CoLab and Diana Kearney is Legal and Shareholder Advocacy Advisor at Oxfam America Inc. This post is based on their article, recently published in the Environmental Law Reporter.

Federal securities law is grounded in the principle of disclosure; however, many have found wanting the prevailing disclosure requirements for the social and environmental impacts of public corporations. The sustainability practices of business might be better regulated if companies reported about them with greater care. But U.S. public companies spend less time communicating with investors about ESG issues than their global peers. They also disclose less. This aversion to transparency isn’t surprising, if viewed in relation to the treatment of “materiality” within federal securities law. The Supreme Court grappled with the definition of materiality in 1976 and again in 1988, and determined that, for disclosure relevant to the trading of securities, materiality should be defined through the lens of what is important solely to investors. The Court restricted the concept to what would be considered in a decision to buy, sell, or hold a stock, or to vote a proxy. This is known as “financial materiality.” The SEC has always considered certain ESG impacts to be financially material, but not to such a general degree that it has required robust reporting on the subject. Business is therefore free to avoid disclosure of “immaterial” ESG impacts.

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Comment Letter Regarding Mandatory Arbitration Bylaw Proposal at Johnson & Johnson

Jeff Mahoney is General Counsel of Council of Institutional Investors. This post is based on a comment letter from CII to Chairman Jay Clayton of the U.S. Securities and Exchange Commission.

I am writing on behalf of the Council of Institutional Investors (CII). CII is a nonprofit, nonpartisan association of public, corporate and union employee benefit funds, other employee benefit plans, state and local entities charged with investing public assets, and foundations and endowments with combined assets under management exceeding $4 trillion. Our member funds include major long-term shareowners with a duty to protect the retirement savings of millions of workers and their families. Our associate members include a range of asset managers with more than $25 trillion in assets under management. [1]

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Appraisal Litigation in Delaware: Trends in Petitions and Opinions (2006-2018)

David F. Marcus is Senior Vice President and Frank Schneider is Vice President at Cornerstone Research. This post is based on their Cornerstone memorandum 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 Appraisal After Dell by Guhan Subramanian and Using the Deal Price for Determining “Fair Value” in Appraisal Proceedings by Guhan Subramanian (discussed on the Forum here).

Last year saw a drop in the number of appraisal petitions filed in the Delaware Court of Chancery. After steadily rising since 2009 and peaking at 76 in 2016, the number of appraisal petitions filed by shareholders declined to only 26 in 2018.

For the 34 appraisal cases that ultimately went to trial between 2006 and 2018, the data show substantial variation in the awards granted by the Delaware Courts. Several recent decisions, including Dell and Aruba, have highlighted judicial concerns about the quality of the sales process and the appropriate methodologies used to determine fair value.

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