Monthly Archives: July 2020

Weekly Roundup: July 10–16, 2020


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This roundup contains a collection of the posts published on the Forum during the week of July 10–16, 2020.

Do Bank Insiders Impede Equity Issuances?



Final Volcker 2.0: Summary for Fund Activities


Statement by Commissioner Lee on the Proposal to Substantially Reduce 13F Reporting


Doubt On Merger Disclosure Claims in a Rare Federal Court Decision




Protecting Financial Stability: Lessons from the Coronavirus Pandemic


Chancery Court Sustains Breach of Fiduciary Duty Claims Against Nonparty to LLC Agreement


Rulemaking Petition on Disclosure to Help Assess Climate Risk


The Effect of Managers on Systematic Risk



COVID-19: Audit Committee Financial Reporting Guidebook


CEO Summit



The Long-Term Impact of the Pandemic on Corporate Governance


Reforming U.S. Capital Markets to Promote Economic Growth


SEC’s Q2 Roundtable Offers Insight to Investor Views

SEC’s Q2 Roundtable Offers Insight to Investor Views

Betty M. Huber is counsel and Paula H. Simpkins is an associate at Davis Polk & Wardwell LLP. This post is based on their Davis Polk memorandum.

On June 30, 2020, Chairman Jay Clayton moderated a virtual roundtable titled “Q2 Reporting: A Discussion of COVID-19 Related Disclosure Considerations” to solicit views from a small panel of highly experienced and well-informed private investors and asset managers (“Roundtable”). The Roundtable included the following panelists: Gary Cohn, Former Director of the U.S. National Economic Council; Glenn Hutchins, Chairman of North Island and Co-Founder of Silver Lake; Tracy Maitland, President and CIO of Advent Capital Management; and Barbara Novick, Vice Chair and Co-Founder of BlackRock. The Director of the Division of Corporation Finance, William H. Hinman, also participated in the Roundtable.

Standardization, Transparency and Forward-Looking Information

There was a general consensus among panelists that companies’ providing greater transparency and forward-looking information is crucial when there is a lot of economic uncertainty, such as presented by the COVID-19 pandemic. Some panelists suggested that standardization of forward-looking information, including financials, among companies would be very helpful. The discussion also included recognition that standardization may be difficult because companies have different business models, cash flow needs, materiality thresholds, etc.

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Reforming U.S. Capital Markets to Promote Economic Growth

Hal S. Scott is the Emeritus Nomura Professor of International Financial Systems at Harvard Law School and John Gulliver is the Kenneth C. Griffin Executive Director of the Program on International Financial Systems. This post is based on a report by the Committee on Capital Markets Regulation. Related research from the Program on Corporate Governance includes The Untenable Case for Perpetual Dual-Class Stock by Lucian Bebchuk and Kobi Kastiel (discussed on the Forum here); Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy and The Specter of the Giant Three, both by Lucian Bebchuk and Scott Hirst (discussed on the forum here and here); and Short-Termism and Capital Flows by Jesse Fried and Charles C. Y. Wang (discussed on the Forum here).

Executive Summary

Vibrant and well-functioning U.S. capital markets create jobs, bolster investment, promote innovation, and enhance retirement savings. Capital markets function best when regulations allow for the efficient allocation of capital while protecting investors. In this report, we evaluate major trends and developments in U.S. capital markets and assess whether existing regulations are continuing to serve U.S. companies and investors. We then set forth regulatory reforms to further enhance the performance of U.S. capital markets.

The report consists of four chapters: (1) The Rise of Dual Class Shares: Regulations and Implications, (2) Short-termism, Shareholder Activism and Stock Buybacks; (3) The Rise of Index Investing: Price Efficiency and Financial Stability; and (4) An Analysis of Investment Stewardship: Mutual Funds and ETFs. An executive summary of each chapter appears below.

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The Long-Term Impact of the Pandemic on Corporate Governance

Michael W. PeregrineRalph DeJong, and Sandy DiVarco are partners at McDermott Will & Emery LLP. This post is based on a McDermott memorandum by Mr. Peregrine, Mr. DeJong, Ms. DiVarco, and Stephen Bernstein.

The pandemic is likely to have lasting, material repercussions for how health care enterprises approach corporate governance. These repercussions are separate and distinct from the board’s disaster-response duties that were summoned into application during the height of the health crisis. Rather, they relate to how certain traditional governance principles and practices are expected to change given the lessons and experiences that corporate leadership is gaining over the course of the pandemic.

A critical impact of the pandemic is that the law, corporate stakeholders, and public policy will likely expect boards to be responsive in some way to how circumstances have changed, in a good faith manner. Boards will thus be called upon to evaluate the governance impact of pandemic-specific lessons and experiences, and to implement changes believed to be appropriate given the circumstances.

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Response Letter to Statement Announcing SEC Staff Roundtable on Emerging Markets

Jeffrey P. Mahoney is General Counsel at the Council of Institutional Investors. This post is based on a CII letter to the U.S. Securities and Exchange Commission.

Via Email
July 8, 2020

The Honorable Jay Clayton
Securities and Exchange Commission
100 F Street NE
Washington, DC 20549-1090

Re: July 9 Roundtable on Emerging Markets

Dear Mr. Chairman:

I am writing in response to the May 4 “Statement Announcing SEC Staff Roundtable on Emerging Markets” soliciting “views on the risks of investing in emerging markets, including China.”

The Council of Institutional Investors (CII) is a nonprofit, nonpartisan association of U.S. 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 of approximately $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, including public pension funds with more than 15 million participants—true “Main Street” investors through their pension funds. Our associate members include non-U.S. asset owners with about $4 trillion in assets, and a range of asset managers with more than $35 trillion in assets under management.

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CEO Summit

Jeffrey A. Sonnenfeld is the Lester Crown Professor in the Practice of Management at the Yale School of Management. This post is based on Key Takeaways by the Yale School of Management CEO Summit. 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).

Overview

CEO Summit participants were in strong agreement: CEOs must speak up about racism and companies must take concrete actions to become more inclusive. Even companies that are already taking action must do more. The starting point, in the view of many CEOs, is to initiate conversations, which can be difficult. This involves communicating with employees, giving them a voice, and listening carefully and with empathy.

Then, companies need to go beyond listening by focusing on jobs and opportunities. The specifics may differ for each company based on its industry but may include focusing on K-12 education, increasing hiring for individuals with less than a four-year degree, and providing greater access to capital.

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COVID-19: Audit Committee Financial Reporting Guidebook

Paula Loop is Leader, Paul DeNicola is Principal, and Stephen G. Parker is Partner at the PricewaterhouseCoopers LLP Governance Insights Center. This post is based on their PwC memorandum.

The global economy and business community are still feeling the profound impacts of COVID-19, and will for sometime in the future. Given the current business and market conditions amid the pandemic, companies and audit committees continue to face accounting and reporting challenges as they meet regulatory requirements and respond to investor expectations.

Audit committees need to be mindful of the impact of working virtually. In addition to considering the impact on internal control over financial reporting, they will want to consider any changes in the operation of internal reporting structures (like risk, HR, legal, compliance) or whistleblower systems, the impact on investigations and resolution timeliness, as well as how and when any material issues are reported to the board. In all areas related to internal controls, companies should ensure that risky shortcuts are not being taken and processes still have the appropriate rigor. It is important for the audit committee to set the tone and ensure management is encouraging employees to ask for more time or additional resources if help is needed to make sure things are done the right way.

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Maximizing the Benefits of Board Diversity: Lessons Learned From Activist Investing

Jared Landaw is COO and General Counsel at Barington Capital Group LP. This post is based on a Conference Board publication. 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).

Introduction

In recent years, publicly traded companies in the United States have faced increasing pressure to improve diversity on their corporate boards. Influenced by state legislation as well as the efforts of institutional investors and other diversity advocates, companies are recruiting more female directors than ever before. Approximately 45 percent of the directors added to the boards of companies in the Russell 3000 during the 2019 proxy season were women, up from 12 percent in 2008. The percentage of new directors who are minorities is also increasing, although at a significantly slower rate, with approximately 15 percent of the directors added to the boards of Russell 3000 companies during the 2019 proxy season belonging to a racial or ethnic minority group.

One of the central arguments cited for improving the diversity of demographic characteristics such as gender, race, and ethnicity on corporate boards is that such diversity is necessary to ensure that boards are able to perform their obligations effectively in today’s competitive business landscape. In calling for an increase in gender diversity on boards, Ronald P. O’Hanley of State Street Global Advisors stated, “In a more complex, innovation-driven environment, embracing a diversity of thinking, competencies, and backgrounds is a business imperative.” David Solomon, CEO of Goldman Sachs, expressed a similar sentiment when announcing that, beginning July 1, 2020, Goldman Sachs will not take a company public unless it has at least one diverse board member: “I come from a position of my own experience where I look at the Goldman Sachs board. We have four women out of eleven. We have a black lead director. And I really value the diverse perspectives I’m getting which are helping me run the company.”

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The Effect of Managers on Systematic Risk

Antoinette Schoar is the Stewart C. Myers-Horn Family Professor of Finance and Entrepreneurship at the MIT Sloan School of Management; Kelvin Yeung is a PhD student at the Cornell University Samuel Curtis Johnson Graduate School of Management; and Luo Zuo is Associate Professor at the Cornell University Samuel Curtis Johnson Graduate School of Management. This post is based on their recent paper.

In the paper The Effect of Managers on Systematic Risk, we ask whether top manager-specific differences account for part of the unexplained variation in traditional asset pricing models. A key principle in asset pricing theory is that investors are compensated for bearing systematic risk, but not idiosyncratic risk. Drawing on this insight, empirical asset pricing models decompose stock return variability into systematic and idiosyncratic components. The systematic risk of a stock is determined by its beta, which measures the sensitivity of the stock’s return to common risk factors such as the market factor. A large literature investigates the determinants of beta, but a general conclusion from these studies is that a large amount of variation in systematic risk cannot be explained by firm-, industry-, or market-level variables.

Tracking the movement of top managers across firms, we document the importance of manager-specific fixed effects in explaining heterogeneity in firm exposures to systematic risk. We show that these differences in systematic risk are partially explained by managers’ corporate strategies, such as their preferences for internal growth and financial conservatism. We follow the approach of Bertrand and Schoar (2003) to document that such person-specific styles explain a significant amount of variation in firms’ capital structures, investment decisions, and organizational structures. The notion that CEOs differ in their styles is reinforced by Bennedsen, Pérez-González, and Wolfenzon (2020) who exploit hospitalizations to examine variation in firms’ exposures to their CEOs. Similarly, a vibrant literature suggests that managers’ personal traits play a role in shaping their management approach. Our results suggest that managerial style explains a substantial fraction of the variation in both idiosyncratic risk and systematic risk.

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Rulemaking Petition on Disclosure to Help Assess Climate Risk

Joseph F. Keefe is President and Julie Gorte is Senior Vice President for Sustainable Investing at Impax Asset Management LLC. This post is based on their rulemaking petition to the United States Securities and Exchange Commission.

Ms. Vanessa Countryman, Secretary
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549

June 10, 2020

Dear Secretary Countryman,

On behalf Impax Asset Management LLC, Investment Adviser to Pax World Funds, we submit this rulemaking proposal to require that companies identify the specific locations of their significant assets, so that investors, analysts and financial markets can do a better job assessing the physical risks companies face related to climate change.

Scientific research is increasingly showing that severe precipitation, floods, fires, droughts, sea level rise, extreme heat, and the spread of tropical diseases and pests to temperate zones are often not random and or impossible to anticipate, but are linked to a warming climate. These changes pose risks not only to companies, but their investors, financial markets and the global economy.

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