Yearly Archives: 2020

Justice Department Updates Its Guidance on Corporate Compliance Programs

Stephen Cutler and Nicholas Goldin are partners and David Caldwell is an associate at Simpson Thacher & Bartlett LLP. This post is based on their Simpson Thacher memorandum.

Earlier this month, the Criminal Division of the Department of Justice updated its guidance for prosecutors to use when evaluating a company’s compliance program in the context of corporate charging and settlement decisions. [1] While the revised guidance is very similar to DOJ’s April 2019 version, [2] it includes substantive updates in a number of areas—including regarding how compliance programs are resourced, how they evolve and adapt, and how they address pre-acquisition due diligence and post-acquisition compliance integration in mergers and acquisitions.

Introduction

As with prior versions, the updated guidance continues to emphasize at the outset that the Criminal Division does not use any “rigid formula” to evaluate compliance programs, and instead states that each company’s risk profile requires “particularized evaluation.” The revisions (italicized below), however, add notable language with respect to the factors DOJ will consider in its individualized determination:

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Time to Rethink the S in ESG

Jonathan Neilan is Managing Director; Peter Reilly is Senior Director; and Glenn Fitzpatrick is a Consultant at FTI Consulting. This post is based on their FTI Consulting memorandum. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance by Lucian A. Bebchuk and Roberto Tallarita (discussed on the Forum here) and Socially Responsible Firms by Alan Ferrell, Hao Liang, and Luc Renneboog (discussed on the Forum here).

Putting the ‘S’ in context

In early 2019, we wrote a paper highlighting that the focus on Environmental, Social & Governance or ‘ESG’ issues in the capital markets had firmly shifted from the margin to the mainstream. This shift was reflected in the scale of capital being invested in ESG oriented investment funds alongside a generally greater societal awareness (and acceptance) of an urgency to step up efforts to address environmental issues and climate change.

As we continued to engage with companies and investors during the course of 2019—and we assessed the corporate reputation challenges being encountered by many companies—it became increasingly clear that factors which fall within the ‘S’ of ESG are as common as (and for some companies more so than) those within ‘E’ and ‘G’ in contributing to business risk and, in turn, causing lasting damage to a company’s reputation.

Factors which fall within the ‘S’—frequently customer or product quality issues, data security, industrial relations or supply-chain issues—commonly impact businesses and ‘destroy value’. This prompted us to reconsider if ‘social’ was the correct word for the ‘S’ in ESG and whether ‘Stakeholder’ might be more appropriate. Indeed, the use of the term ‘social’ may have contributed to a failure to conceptualise the ‘S’ in ESG, leading to an absence of focus and measurement from the market.

The scope of ‘S’ has progressively widened over the past two decades, which reflects the evolving business environment of the 21st century where businesses and markets are increasingly interconnected and interdependent. Over and above human rights; labour issues; workplace health & safety; and product safety and quality, ‘S’ factors now also incorporate the impact of modern supply-chain systems and the adoption of technology across all business sectors.

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Addressing Climate as a Systemic Risk: A Call to Action for Financial Regulators

Veena Ramani is Senior Program Director, Capital Markets Systems at Ceres. This post is based on her Ceres report.

Executive Summary

Systemic risks have the potential to destabilize capital markets and lead to serious negative consequences for financial institutions and the broader economy. Under this definition, climate change, like the current COVID-19 crisis, is indisputably a systemic risk. Its wide-ranging physical impacts, combined with expected transitions to a net-zero carbon economy and other socio-economic ripples, are likely to manifest in both cumulative and unexpected ways and present clear systemic risks to U.S. financial markets—and the broader economy. Left unmanaged, these risks could have significant, disruptive consequences on asset valuations, global financial markets and global economic stability.

This post, “Addressing Climate as a Systemic Risk: A call to action for U.S. financial regulators,” outlines how and why U.S. financial regulators, who are responsible for protecting the stability and competitiveness of the U.S. economy, need to recognize and act on climate change as a systemic risk. It provides more than 50 recommendations for key financial regulators to adopt, including the Federal Reserve Bank (the Fed), the Office of the Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation (FDIC), the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CTFC), state and federal insurance regulators, the Federal Housing Finance Agency (FHFA), and the Financial Stability Oversight Council (FSOC).

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Update by Chairman Clayton on the Commission’s Targeted Regulatory Relief to Assist Market Participants Affected by COVID-19 and Ensure the Orderly Function of our Markets

Jay Clayton is Chairman of the U.S. Securities and Exchange Commission. This post is based on a recent public statement issued by Mr. Clayton, William Hinman, Dalia Blass, and Brett Redfearn. The views expressed in this post are those of Mr. Clayton, Mr. Hinman, Ms. Blass, and Mr. Redfearn, and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Introduction

The U.S. Securities and Exchange Commission’s efforts in response to the COVID-19 pandemic are centered, first and foremost, on the health and safety of our employees and all Americans. The Commission’s recognition of the corresponding need of market participants to also prioritize health and safety while ensuring the continuity of operations essential to the orderly function of our capital markets, drove the prompt actions of the Commission and its staff in the early stages of the pandemic’s effects in the United States. We have assessed these actions in light of developments over the past several months, current conditions and our expectations in order to adjust our efforts as necessary or appropriate. This statement provides a collective, cross-Divisional update based on that assessment.

Below is a summary of the current targeted, temporary relief and assistance provided by the Commission and staff, along with the staff’s views on whether and, if so, how that relief should be adjusted taking into account market outreach and observations. It is clear that the need for certain relief remains, such as relief to ensure continued remote operations and to provide flexibility in light of continued market volatility. Other forms of current relief, however, are unlikely to be extended. For example, the Commission and its staff provided temporary, targeted, and conditional relief and assistance to issuers and registrants from certain filing and delivery deadlines in recognition of the impact of COVID-19 on operations while also maintaining important investor protections. As market participants have worked to implement business continuity plans and adjusted in many cases to a more remote and distributed workforce, the present need for extensions of certain regulatory deadlines has diminished.

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Asset Manager Perspective: Shareholder Proposals on Sustainability

Snorre Gjerde is Analyst, Sustainability; Wilhelm Mohn is Head of Sustainability; and Carine Smith Ihenacho is Chief Corporate Governance Officer at Norges Bank Investment Management. This post is based on their Norges Bank memorandum. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance by Lucian A. Bebchuk and Roberto Tallarita (discussed on the Forum here); and Reconciling Fiduciary Duty and Social Conscience: The Law and Economics of ESG Investing by a Trustee by Robert H. Sitkoff and Max M. Schanzenbach (discussed on the Forum here).

Voting on shareholder proposals allows investors to exercise their ownership rights by holding the board accountable and steering companies in the right direction. In many markets, an increasing number of proposals focus on the environmental and social aspects of companies’ activities. Emerging academic research indicates that some of these proposals may have positive financial implications for the target company, if adopted. However, the increasing number of proposals can also present challenges for investors. These proposals address many complex and distinctive issues, and filers may pursue objectives beyond the best interests of the company.

Faced with this situation, asset managers need efficient solutions that enable them to vote in favour of relevant, value-adding initiatives, and vote against proposals that are misaligned with shareholder value. Shareholder proposals can be instrumental in driving adoption of more responsible business practices at companies. We emphasise the importance of making considered voting decisions and recommend an analytical approach focused on materiality, limited prescriptiveness and consideration of company context. We call on filers to utilise the proposal mechanism to raise material sustainability risks that a company is managing inadequately, and not as a tool for micro-managing company operations or drawing attention to tangential issues.

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Supreme Court Limits SEC Disgorgement Remedy

John F. SavareseWayne Carlin and David B. Anders are partners at Wachtell, Lipton, Rosen & Katz. This post is based on their Wachtell Lipton memorandum.

In an 8-1 decision issued today in Liu v. SEC, the Supreme Court upheld the SEC’s authority to obtain disgorgement from securities law violators, but also indicated some limitations on the scope of the remedy. Some observers had raised questions about the continued viability of the disgorgement remedy after the Court’s 2017 decision in Kokesh v. SEC. [The June 22, 2020] decision makes clear that SEC disgorgement is alive and well. Nevertheless, in light of some comments in this opinion, the SEC will likely need to rein in some of its prior practices.

The SEC has statutory authority to obtain “equitable relief” in federal court. The agency has long taken the position that orders of disgorgement are within the inherent equitable powers of a court. In Kokesh, the Court held that disgorgement is a penalty for statute-of-limitations purposes, which raised the question of whether the SEC’s view of the scope of equitable relief is correct. In today’s decision, the Court noted that courts of equity have routinely deprived wrongdoers of their net profits in order to provide fair compensation to their victims. This led to the conclusion that Kokesh does not preclude the SEC from recovering ill-gotten gains from wrongdoers, with certain limitations.

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Testimony by Chairman Clayton before the Investor Protection, Entrepreneurship, and Capital Markets Subcommittee U.S. House Committee on Financial Services

Jay Clayton is Chairman of the U.S. Securities and Exchange Commission. This post is based on Chairman Clayton’s recent testimony before the Investor Protection, Entrepreneurship, and Capital Markets Subcommittee of the U.S. House Committee on Financial Services. 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.

Chairman Sherman, Ranking Member Huizenga and Members of the Subcommittee, thank you for the opportunity to testify today to highlight the U.S. Securities and Exchange Commission’s response to the effects of COVID-19 on our capital markets. [1] COVID-19 has had profound effects on our capital markets and our broader economy. At the outset of the pandemic, in the interest of saving as many lives as possible, we—all Americans—have undertaken, with remarkable spirit and selflessness, a massive restriction in how we interact.

Many of the economic impacts of COVID-19 are a result of the collective, full-mitigation, health-and-safety-first response that resulted in a sharp contraction in many aspects of our economy and increased volatility and uncertainty in our capital markets. Policymakers have responded to the most apparent and acute economic and market consequences with unprecedented monetary and fiscal policy actions. The Commission’s work has been and will continue to be an important factor in our nation’s response to and recovery from the current COVID-19 pandemic. I also want to commend Congress and our regulatory colleagues, especially the Federal Reserve and the Treasury Department, for these swift, resolute responses to our nation’s challenges.

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Response to US Critics of the French Securities Regulator Position on Activism

Alain Pietrancosta is Professor of Law at the Sorbonne Law School at the University of Paris and Alexis Marraud des Grottes is a partner at the Paris office of Orrick Herrington & Sutcliffe LLP. Related research from the Program on Corporate Governance includes The Long-Term Effects of Hedge Fund Activism by Lucian Bebchuk, Alon Brav, and Wei Jiang (discussed on the Forum here) and Pre-Disclosure Accumulations by Activist Investors: Evidence and Policy by Lucian Bebchuk, Alon Brav, Robert J. Jackson Jr., and Wei Jiang.

The measures proposed on April 28, 2020, by the Autorité des marchés financiers (French Financial Market Authority) [1] in response to an environment of increasing shareholder activism have been generally welcomed by the financial markets of Paris. They have been judged by most operators to be appropriate and balanced, although they supplement a legal system that already contains suitable provisions for managing activism and that the far-reaching impact of some of them may not yet have been fully assessed. It is, moreover, doubtful that the activist community fully shares this sentiment.

These measures are the culmination of in-depth analysis conducted over several months involving all relevant parties. The movement was instigated by the Minister of the Economy and Finance, resulting from concerns relating to mounting activism in France. A series of reports followed, one issued by members of the parliament, and others by institutions representing issuers, associations of well-informed professionals and even think tanks more open to the activist cause. The Paris markets have therefore collectively seized on the matter and we can congratulate them on their initiative and their efforts to analyse and understand this international movement, in order to draw conclusions regarding the expediency of regulatory intervention.

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Weekly Roundup: June 19–June 25, 2020


More from:

This roundup contains a collection of the posts published on the Forum during the week of June 19–25, 2020.



DOJ Updates Guidance on the Evaluation of Corporate Compliance Programs


Second Circuit Opinion on Corporate Scienter in Securities Fraud Class Actions


Aiding and Abetting Claims Against Board Advisors and Buyer


The Rise of Standardized ESG Disclosure Frameworks in the United States


A Hierarchy of Stakeholder Needs


Coronavirus: 15 Emerging Themes for Boards and Executive Teams



The Harvard-Oxford Debate on Stakeholder Capitalism


Governing Through the Pandemic



NYC Comptroller’s Boardroom Accountability 3.0 Results


Artificial Intelligence and Ethics: An Emerging Area of Board Oversight Responsibility


Coalitions Among Plaintiffs’ Attorneys in Securities Class Actions


The Board’s Impact on Long-term Value

The Board’s Impact on Long-term Value

Shawn Cooper is a senior member of the Global Board & CEO Advisory Partners at Russell Reynolds Associates and Sarah Keohane Williamson is CEO of FCLTGlobal. This post is based on a joint Russell Reynolds and FCLTGlobal memorandum by Mr. Cooper, Ms. Keohane Williamson, PJ Neal, Ariel Fromer Babcock, Alison Loat, and Todd Safferstone. 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) and The Uneasy Case for Favoring Long-Term Shareholders by Jesse Fried (discussed on the Forum here).

Taking a long-term approach in business leads to superior performance.

Companies that orient themselves around a long-term time horizon while also delivering against short-term objectives have been shown to outperform their peers on several key business measures, including revenue, earnings, economic profit, market capitalization and job creation. These companies were hit hard during the last major economic downturn—as were most businesses—but saw a higher-than-average rebound after markets recovered.

According to one economic analysis, had short-term-oriented companies behaved more like long-term-oriented ones, the global economy would have created an additional $1.5 trillion in returns on invested capital in the years following the Great Recession. [1]

What Is “Long-Termism”?

It is how boards and executives think and act in regard to the practice of applying a long-term approach to business and investment decision-making, including focusing on key elements of performance such as competitive advantage, long-term objectives and a strategic plan matched with clear capital allocation priorities. It stands in contrast to short-termism, or a continued focus on quarterly or other near-term performance issues, and is increasingly in demand from stakeholders who want a fundamental rethink around how companies operate and create value.

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