Yearly Archives: 2020

ISS Proposes 2021 Benchmark Voting Policy Changes

Posted by Betty Moy Huber and Paula H. Simpkins, Davis Polk & Wardwell LLP, on
Tuesday, November 10, 2020
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Betty Moy Huber is counsel and Paula Simpkins is an associate at Davis Polk & Wardwell LLP. This post is based on their Davis Polk memorandum.

On October 14, 2020, ISS released its proposed voting policy changes for 2021. The changes for the United States focus mainly in these three areas: (1) racial and ethnic board diversity, (2) board oversight of environmental, climate and social risks and (3) exclusive forum provisions.

ISS requests feedback on the proposed changes. Market participants can submit comments via email to [email protected] through 5:00 PM ET on Monday, October 26, 2020. ISS expects to release its final voting policies in the first half of November 2020.

Over the summer, ISS administered its annual benchmarking voting policy survey to market participants. It plans to use the survey results, which we discussed here, to inform its benchmarking policies. Two of the three topics covered by the proposed changes, diversity and board accountability for climate risk, were included in ISS’s survey. The proposed policies, however, do not update the following topics covered by the survey: ISS’s COVID-19-adjusted policies, independent board chair, and auditors and audit committees.

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SEC Extends Its Focus on MNPI Clearance Procedures

Posted by Stephen Cutler, Brad Goldberg and Nicholas Goldin, Simpson Thacher & Bartlett LLP, on
Monday, November 9, 2020
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Stephen Cutler, Brad Goldberg and Nicholas Goldin are partners at Simpson Thacher & Bartlett LLP. This post is based on a Simpson Thacher memorandum by Mr. Cutler, Mr. Goldberg, Mr. Goldin, Brooke Cucinella, Michael Osnato and Josh Levine. Related research from the Program on Corporate Governance includes Insider Trading Via the Corporation by Jesse Fried (discussed on the Forum here).

[On October 15, 2020], the SEC announced a settled enforcement action against a public company in connection with the company’s initiation of a stock buyback program while in possession of material, nonpublic information (“MNPI”). [1] The Commission charged the company with violating Section 13(b)(2)(B) of the Exchange Act, which requires reporting companies to devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that transactions are executed, and access to company assets is permitted, only in accordance with management’s authorizations.

Specifically, the SEC found that the company’s decision–approved by its legal department–to enter into a Rule 10b5-1 trading plan to repurchase the company’s shares on the same day that the company resumed previously suspended, CEO-to-CEO merger discussions violated the company’s own securities trading policy, and therefore fell outside the board’s repurchase authorization. Without admitting or denying the SEC’s findings, the company agreed to the entry of a cease and desist order and to pay a $20 million penalty to settle the action.

The SEC’s order highlights a number of important matters for public companies:

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The Return on Purpose: Before and During a Crisis

Posted by Gregory V. Milano, Fortuna Advisors, on
Monday, November 9, 2020
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Gregory V. Milano is founder and CEO of Fortuna Advisors. This post is based on a recent paper authored by Mr. Milano; Brian Tomlinson, Director of Research of the CEO Investor Forum at Chief Executives for Corporate Purpose (CECP); Riley Whately, Fortuna Advisors; and Alexa Yiğit, Sustainable Finance Lead at the CECP CEO Investor Forum. 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); For Whom Corporate Leaders Bargain by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita (discussed on the Forum here); and Toward Fair and Sustainable Capitalism by Leo E. Strine, Jr (discussed on the Forum here).

Executive Summary

The role of the corporation in society is under review. The paradigm that corporations are run solely in the interests of shareholders, which has defined a generation of management practice, is being contested. The emerging paradigm references “stakeholders” as the broader group that managers should consider in decision-making. Such a transition is full of complexities for chief executives, investors and policy makers.

In this paper, we seek to highlight a few implications of corporate purpose—in its stakeholder aspect. We look at whether a clear corporate purpose can impact the valuation of listed equities and how that relationship to value may arise. As part of that, we explore a corporate purpose measurement framework developed by BERA Brand Management. Drawing on a CEO survey, we look at examples of corporations that have deployed their stated corporate purpose to guide them through crisis induced decision-making. [1]

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Rising Threat of Securities Liability for SPAC Sponsors

Posted by Adam Brenneman, Nicolas Grabar, and Jared Gerber, Cleary Gottlieb Steen & Hamilton LLP, on
Monday, November 9, 2020
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Adam Brenneman, Nicolas Grabar, and Jared Gerber are partners at Cleary Gottlieb Steen & Hamilton LLP. This post is based on their Cleary memorandum.

Special purpose acquisition companies or “SPACs” are an increasingly popular way for an existing private company to become publicly traded without undergoing a traditional initial public offering, and for investors in public markets to invest in growth-stage companies. There can be generous returns for SPAC sponsors, but they should be aware of the liability risk in connection with their role. Indeed, litigation arising from several recent SPAC acquisitions, most prominently against Nikola Corporation, underscores the risks for SPAC sponsors. They therefore should be mindful of steps they can take to mitigate these risks in the reverse merger process.

Key Takeaways

  • In the “de-SPAC” transaction, when a SPAC acquires its target, the SPAC and its sponsors are potentially liable under Sections 10(b) and 14(a) of the Securities Exchange Act of 1934 for misleading statements included in a proxy statement or in other public statements. The SPAC and its sponsors may also be liable under Section 11 of the Securities Act of 1933 if that de-SPAC transaction includes a registered offering.
  • Investors have sought to hold SPACs and their sponsors liable for a variety of alleged misstatements, including about the financial outlook of the target companies and the level of due diligence performed by the SPAC.
  • The best ways for a SPAC sponsor to mitigate these risks are to perform sufficient due diligence on the target and to be cautious with language in the proxy statement.

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The Comeback of Hostile Takeovers

Posted by Kai Liekefett, Sidley Austin LLP, on
Sunday, November 8, 2020
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Kai Liekefett is partner at Sidley Austin LLP. This post is based on an article originally published in Ethical Boardroom Magazine by Mr. Liekefett, Betsy Atkins, Joele Frank, and David Rosewater. Related research from the Program on Corporate Governance includes  The Case Against Board Veto in Corporate Takeovers by Lucian Bebchuk; and Toward a Constitutional Review of the Poison Pill by Lucian Bebchuk and Robert J. Jackson, Jr. (discussed on the Forum here).

A Hostile World (Again)

In the 1980s, they became all the rage: hostile takeovers. Boards lived in fear of “corporate raiders” like Carl Icahn. For example, in 1988, there were no less than 160 unsolicited takeover bids for U.S. companies. The hostile takeover became the defining symbol of U.S. style capitalism, encapsulated in the 1987 movie classic “Wall Street”.

However, after the late 1980s unsolicited takeover bids decreased in number and over the last decade became relatively rare. For example, last year, there were less than 15 hostile takeover offers for U.S. companies. The reasons for this development are manifold. One reason is the board-friendly case law on takeover defenses—particularly the decisions of the Delaware courts in the Airgas case, which upheld a target company’s poison pill even though the bidder’s tender offer had been pending for a year. Antitrust is another, which makes it more difficult for companies with large market shares to acquire competitors without some level of cooperation from the target company. Yet, among them all, one reason in particular stands out: the previous 11-year bull market in the U.S., which until March of this year drove the share prices of public companies every upward, making potential target companies too expensive for their competitors.

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SEC Adopts Amendments to Auditor Independence Rules

Posted by Charles F. Smith, Brian V. Breheny, and Andrew J. Fuchs, Skadden, Arps, Slate, Meagher & Flom LLP, on
Sunday, November 8, 2020
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Charles F. Smith and Brian V. Breheny are partners and Andrew J. Fuchs is counsel at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on their Skadden memorandum.

The Securities and Exchange Commission (SEC) has issued final rules that significantly modify the framework that public companies and their auditors use to evaluate auditor independence, providing additional clarity for certain particularly difficult and recurring issues.

The final rules, adopted on October 16, 2020, principally focus on complications that arise from auditor independence assessments with respect to affiliates of the audit client. Such issues include situations where the entity under audit is under common control with other entities, which frequently is an issue for operating and portfolio companies, investment companies, and investment advisers and sponsors. In addition to cutting compliance burdens and costs for registrants and auditors, the SEC expects that these proposed amendments will reduce the instances in which auditors are not considered independent. Accordingly, this could expand the pool of auditors available to registrants, which would provide more relevant industry expertise, drive down audit costs and improve the quality of financial reporting. These final rules also change the auditor independence requirements related to initial public offerings (IPOs), M&A activity and similar corporate events, and certain requirements around ordinary course debtor-creditor relationships.

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Evolving Compensation Responses to the Global Pandemic

Posted by Mike Kesner, Sandra Pace, and John Sinkular, Pay Governance LLC, on
Saturday, November 7, 2020
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Mike Kesner, Sandra Pace, and John Sinkular are partners at Pay Governance LLC. This post is based on their Pay Governance memorandum.

In this post, we focus on companies that have faced severe impairments due to the pandemic and are grappling with highly volatile stock prices resulting in substantial incentive plan design challenges. This continues our series of pay actions taken or considered among companies impacted by the pandemic.

Summary

  • For many of the companies severely harmed by the global pandemic, immediate cost-cutting measures were necessary to protect the business including furloughs, layoffs, suspended 401(k) matching contributions, and base salary reductions for most/all of the workforce.
  • Many of these companies approved their fiscal 2020 annual and long-term incentive (LTI) plans and prior LTI performance awards (i.e., 2018-2020 and 2019-2021 cycles) without any consideration for a global pandemic. These incentives often represent ≥50% of an executive’s annual compensation (≥70% in the case of the CEO), and it is highly likely the performance-contingent incentives are tracking to a zero payout and time-vested restricted stock units (RSUs) have greatly diminished in value.
  • The reduced value of realizable compensation directionally aligns with companies’ pay-for-performance (P4P) philosophies; however, the reductions are largely based on an unprecedented shutdown of the global economy due to health concerns and a reshaping of how many companies will “do business” now and into the future.
  • Severely harmed companies are assessing the near- and long-term implications of the downturn on all stakeholders and determining if changes to annual and long-term incentive programs are appropriate to balance the company’s talent goals with its P4P philosophy.

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Securities Litigation Trends During COVID-19

Posted by Blair Connelly, Colleen C. Smith, and Cindy Guan, Latham & Watkins LLP, on
Saturday, November 7, 2020
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Blair Connelly and Colleen C. Smith are partners and Cindy Guan is an associate at Latham & Watkins LLP. This post is based on an article originally published in Bloomberg Law.

Many predicted a wave of securities litigation would follow the stock market plunge during the early days of the pandemic in March 2020, just as it did in the wake of the 2008 economic downturn. But in the months since the onset of pandemic- related economic hardship, only a few cases have been pursued by private plaintiffs, with a roughly equal number of enforcement actions filed by the U.S. Securities & Exchange Commission.

The trend in shareholder litigation is beginning to shift. We are now seeing an uptick in claims challenging public statements made regarding protective measures and financial condition. The SEC has encouraged companies to keep shareholders informed about Covid-19 developments relevant to their businesses throughout the crisis. While this guidance is meant to improve transparency, public companies should not overlook the risk of future shareholder litigation as they adjust to new restrictions on business operations, implement new workplace safety measures, and attempt to best position themselves for success in a period of virtually unprecedented economic uncertainty.

In this post, we examine current securities litigation uniquely associated with the pandemic, predict litigation risks and trends going forward, and offer a summary of best practices for avoiding them.

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Avoiding Blowback from Your Stock Buyback

Posted by Daniel Wolf and Joshua Korff, Kirkland & Ellis LLP, on
Friday, November 6, 2020
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Daniel Wolf and Joshua Korff are partners at Kirkland & Ellis LLP. This post is based on their Kirkland & Ellis memorandum. Related research from the Program on Corporate Governance includes  Short-Termism and Capital Flows by Jesse Fried and Charles C. Y. Wang (discussed on the Forum here); and Insider Trading Via the Corporation by Jesse Fried (discussed on the Forum here).

Companies should ensure that their clearance systems are properly designed to identify any MNPI that would preclude share repurchases.

Most stock buyback programs garner attention when the board authorization of a program is announced and when the company provides a quarterly update on its buyback progress during its earnings call or 10-Q filing. However, a recent SEC settled enforcement proceeding highlights that neither of those dates is relevant to the analysis of insider trading risk associated with stock repurchases. Instead, the question of whether the company possesses material non-public information (MNPI), and therefore should not be trading in its own securities, needs to be analyzed at the date of each purchase or, if relevant, the initiation of a 10b5-1 plan to facilitate automated repurchases.

In this case, the SEC alleged that the legal department authorized entering into a 10b5-1 plan for future repurchases at a time when the company’s CEO had just recently reinitiated discussions relating to a potential material M&A transaction.

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SEC Proposes Limited Exemption for Finders

Posted by Brian T. Daly, Marc E. Elovitz, and Craig S. Warkol, Schulte Roth & Zabel LLP, on
Friday, November 6, 2020
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Brian T. Daly, Marc E. Elovitz, and Craig S. Warkol are partners at Schulte Roth & Zabel LLP. This post is based on a Schulte Roth memorandum by Mr. Daly, Mr. Elovitz, Mr. Warkol, David S. Sieradzki and Jacqueline Srour.

On Oct. 7, 2020, the SEC, by a 3-2 vote, proposed a conditional exemption from the broker-dealer registration requirements of Section 15(a) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), for natural persons who assist issuers with raising capital in private markets from “accredited investors” (“Proposal”). The Proposal provides long-sought guidance regarding payment of transaction-based compensation to unregistered persons, commonly referred to as “finders,” who engage in limited securities-related activities to raise funds on behalf of issuers.

The Proposal creates two classes of finders, based on the types of activities in which they are permitted to engage, that would qualify for an exemption from registration. A Tier I finder would be permitted to provide a list of potential investors in connection with a single capital raising transaction by a single issuer once every 12 months. Tier I finders may not communicate with investors regarding an investment opportunity. A Tier II finder would be permitted to solicit investors on behalf of an issuer, distribute offering materials to investors, discuss issuer information included in offering materials and participate in meetings with the issuer and investors. Both Tiers of finders would be permitted to receive transaction-based compensation, which has traditionally been considered a hallmark of brokerage activity.

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