Monthly Archives: June 2020

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


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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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Coalitions Among Plaintiffs’ Attorneys in Securities Class Actions

Stephen Choi is the Murray and Kathleen Bring Professor of Law at NYU Law School; Jessica M. Erickson is Professor of Law at the University of Richmond School of Law; and Adam C. Pritchard is the Frances and George Skestos Professor of Law at University of Michigan Law School. This post is based on their recent paper.

The Private Securities Litigation Reform Act (PSLRA) revolutionized the competitive landscape for plaintiffs’ attorneys in securities class actions. By creating a presumption that the lead plaintiff will be the shareholder or group of shareholders with the largest financial interest, the PSLRA gives law firms a strong incentive to form coalitions of shareholders to aggregate losses. These coalitions often involve multiple law firms sharing the lead counsel role. In our paper Coalitions among Plaintiffs’ Attorneys in Securities Class Actions, we examine this coalition building among law firms to determine when law firms join together to serve as co-lead counsel.

To examine this question, we collected data from lead plaintiff motions and rulings available on Bloomberg Law for every federal securities class action involving a disclosure claim from 2005 to 2016. We collected the names of the proposed lead plaintiff(s) for each initial motion, whether the plaintiffs were institutional investors, their claimed losses, and the law firm(s) filing the motion. We also collected data on the allegations in the final consolidated complaint, potentially dispositive motions, and the resolution of each case. In every case that ended with a settlement, we collected data regarding the terms of the settlement, the fees requested by lead counsel and awarded by the court, and the hours worked and lodestar data. Finally, we supplemented the litigation data with the defendant corporations’ market capitalization measured on the last day of the class period.

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

Vivek Katyal is Chief Operating Officer, Risk and Financial Advisory, and Cory Liepold and Satish Iyengar are Principals, Risk and Financial Advisory, at Deloitte & Touche LLP. This post is based on a Deloitte memorandum by Mr. Katyal, Mr. Cory Liepold, Mr. Iyengar, Nitin Mittal, and Irfan Saif.

Introduction

The unprecedented situation the entire world finds itself in due to the COVID-19 pandemic presents fundamental challenges to businesses of all sizes and maturities. As the thinking shifts from crisis response to recovery, it is clear that there will be a greater need for scenario planning in a world remade by COVID-19. Artificial Intelligence (AI) will likely be at the forefront of data- driven scenario planning given its ability to deal with large volumes and varieties of data to match the velocity of a rapidly changing landscape.

Even before the pandemic, the areas for which boards of directors have oversight responsibility seemed to expand on a daily basis. The last few years have seen increased calls for board oversight in areas such as cyber, culture, and sustainability, to name just a few areas of focus. And the challenges posed by the pandemic have further increased the number and importance of boards’ responsibilities. In addition, boards will increasingly be called upon to address an emerging area of oversight responsibility at the intersection of AI and ethics.

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NYC Comptroller’s Boardroom Accountability 3.0 Results

Michael Garland is Assistant Comptroller for Corporate Governance and Responsible Investment, Jennifer Conovitz is Special Counsel of Pensions, and Yumi Narita is Executive Director of Corporate Governance in the Office of New York City Comptroller Scott M. Stringer. Related research from the Program on Corporate Governance includes Politics and Gender in the Executive Suite by Alma Cohen, Moshe Hazan, and David Weiss (discussed on the Forum here).

This spring, New York City Comptroller Scott Stringer and the New York City Retirement Systems (NYCRS) announced the successful initial results of Boardroom Accountability Project 3.0. Building on the “Rooney Rule” pioneered by the National Football League (NFL), Boardroom 3.0 calls on major companies to adopt search policies requiring the consideration of women and racially/ethnically diverse candidates for board directors and chief executive officers (CEOs). The initiative marks the first time that a large institutional investor has called for such structural reform for CEO searches.

The Comptroller’s Office successfully negotiated Board and CEO diversity search policies with 14 companies, including 13 in response to shareholder proposals submitted to 17 companies for the spring 2020 proxy season, and a fourteenth more recently in response to a subsequent filing for a fall 2020 annual shareholder meeting. While many companies already have similar policies governing director searches, the Comptroller’s Office believes that these are the first public companies to extend the policy to external CEO searches. [1]

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Say on Pay and the Effects of the CEO Pay Ratio: Key Findings From the 2020 Proxy Season

Amit Batish is Manager of Content and Courtney Yu is Director of Research at Equilar, Inc.

With the 2020 proxy season now concluded, thousands of U.S. public companies have filed their proxy statements highlighting key trends with regards to their governance practices. Among the many trends captured from this year’s proxy season are those related to Say on Pay and the CEO Pay Ratio. In this post, Equilar analyzes Say on Pay voting results and the effects of the CEO Pay Ratio on Say on Pay among Equilar 500 companies—the 500 largest U.S. public companies by revenue.

A decade following its inception, Say on Pay continues to play a pivotal role in providing shareholders a platform to voice discontent over executive compensation pay practices. In particular, shareholders seek for executive pay plans to align with company performance and shareholder return, and when that alignment is not present, executive pay is likely to come under some level of scrutiny.

While executive compensation packages have been largely accepted by investors, approval percentages have steadily declined in recent years. During the first five years following the implementation of Say on Pay, a large proportion of companies passed their Say on Pay votes with over 95% support. However, so far in 2020, just 28.1% of Equilar 500 companies passed with more than 95% support—this represents a near 20 percentage point decrease from 2016 when 47.8% of companies passed with such level of support (Figure 1). Three-fourths of companies still passed their Say on Pay votes with over 90% support.

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Governing Through the Pandemic

Debbie McCormack is a managing director and Robert Lamm is an independent senior advisor at the Center for Board Effectiveness, Deloitte LLP. This post is based on their Deloitte memorandum.

Introduction

It is too soon to know whether, how, and to what extent the COVID-19 pandemic will lead to permanent changes—the “next normal”—in how companies are governed or if, post-pandemic, we will go back to the way things were just a few short months ago. In the meantime, governing through the pandemic and the post-pandemic recovery raises a host of new challenges, while also offering potential opportunities. The purpose of this On the board’s agenda is to consider some ways in which boards may get through the pandemic and to contemplate the future of governance in a post-COVID-19 world. [1]

An agile approach to long- and short-term focus

In the recent past, boards have been urged to take a long-term approach to areas like strategic planning, rather than focusing on short-term concerns such as the current or next quarter’s earnings per share. The very concept of “sustainability” implies a longer view. However, COVID-19 has forced boards to focus quickly and intensely on many short-term issues, ranging from the health and well-being of the workforce; ruptured supply chains; and immediate and severe drops in revenues, liquidity, and cashflows, to overseeing difficult decisions on such issues as laying off or furloughing employees, shutting down facilities, and in some cases closing the business permanently. Boards may also need medium-term and long-term perspectives for the recovery and beyond, asking management key questions focused on workforce strategies, including the safety and well-being of the employees.

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The Harvard-Oxford Debate on Stakeholder Capitalism

Tami Groswald Ozery is a co-Editor of the Forum and a Fellow at the Harvard Law School Program on Corporate Governance. 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 Toward Fair and Sustainable Capitalism by Leo E. Strine, Jr (discussed on the Forum here).

This Thursday, June 25, 2020, the Saïd Business School at the University of Oxford will hold a debate titled Stakeholder versus Shareholder Capitalism: the Great Debate. The debate will be held between Harvard Law School Professor Lucian Bebchuk and Oxford University Professor Colin Mayer.

In the tradition of Oxford debates, the audience watching it will be asked to vote on the question being debated: Whether corporate leaders should serve the interests of all stakeholders or just shareholders. The event will be publicly broadcast live at 9am EST, and information about how to watch the debate is available on the Oxford University website here.

Lucian Bebchuk is the James Barr Ames Professor of Law, Economics, and Finance and Director of the Program on Corporate Governance at Harvard Law School. His recent article with Roberto Tallarita, The Illusory Promise of Stakeholder Governance, challenges the “stakeholderism” view under which corporate leaders should give independent weight to the interests of all stakeholders. The article conducts a conceptual, economic, and empirical analysis of stakeholderism and its expected consequences. It conclude that stakeholderism should be rejected, including by those who care deeply about the welfare of stakeholders.

Colin Mayer, CBE, is the Peter Moores Professor of Management Studies at, and former Dean of, the Saïd Business School of the University of Oxford. His recent book, Prosperity: Better Business Makes the Greater Good, puts forward a case for stakeholder capitalism. And his recent ECGI Discussion Paper, Shareholderism versus Stakeholderism – A Misconceived Contradiction: A Comment on “The Illusory Promise of Stakeholder Governance” by Lucian Bebchuk and Roberto Tallarita, takes issue with and responds to the Bebchuk-Tallarita challenge to stakeholder capitalism.

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