Yearly Archives: 2020

Corporate Culture as a Theory of the Firm

Gary B. Gorton is the Frederick Frank Class of 1954 Professor of Finance and Alexander Zentefis is Assistant Professor of Finance, both at the Yale School of Management. This post is based on their recent paper.

Business leaders have long recognized that corporate culture is vital to a company’s identity and success. In one of the more colorful descriptions of culture’s importance, the legendary management author Peter Drucker wrote: “culture eats strategy for breakfast, technology for lunch, and products for dinner, and soon thereafter everything else too.” Similarly, former IBM Chairman and CEO Louis V. Gerstner, Jr. wrote: “I came to see, in my time at IBM, that culture isn’t just one aspect of the game, it is the game.”

And yet, scholars have consistently overlooked corporate culture in their theories of the firm. For the most part, existing theories have focused on the costs and benefits of asset ownership and/or incentive contracts to explain whether a company produces parts and services in house or instead purchases them in a market (the “make-or-buy decision”). Bengt Holmström and John Roberts provide a detailed survey of numerous current theories (Holmström and Roberts 1998) and Robert Gibbons supplies an elegant synthesis of several theories (Gibbons 2005).

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Legal Liability for ESG Disclosures

Connor Kuratek is Chief Corporate Counsel at Marsh & McLennan Companies, Inc., and Joseph A. Hall is a partner and Betty M. Huber is counsel at Davis Polk & Wardwell LLP. This post is based on a Davis Polk memorandum by Mr. Kuratek, Mr. Hall, Ms. Huber, and Katherine J. Brennan.

Corporate Social Responsibility and Environmental, Social & Governance (ESG) issues have become increasingly important over the past few years, and evaluating a company’s ESG disclosures has become a key tool used by many investors in making investment and engagement decisions. Many companies are, with increasing frequency, publishing ESG reports on their websites and incorporating ESG disclosure into mandatory filings with the U.S. Securities and Exchange Commission. According to a National Association of Corporate Directors Report, in 2019, 66% of companies in the Russell 3000 Index discussed and incorporated some ESG risk disclosure into their financial filings. [1] The increase in disclosure has been accompanied by an increase in shareholder litigation on ESG issues.

This post is divided into three parts: Part 1 provides a brief summary of the rise in investor pressure for increased ESG disclosures; Part 2 describes the SEC response to these trends and disclosure regimes, with a particular focus on the World Economic Forum’s 2020 frameworks; and Part 3 discusses litigation related to ESG voluntary disclosures and what companies can do to limit the risk of associated litigation.

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The Dutch Stakeholder Experience

Christiaan de Brauw is a partner at Allen & Overy LLP, This post is based on his Allen & Overy 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) and The Illusory Promise of Stakeholder Governance by Lucian A. Bebchuk and Roberto Tallarita (discussed on the Forum here).

Recently, there have been significant developments towards a more stakeholder-oriented governance model, as evidenced by, among other things, the statements from the Business Roundtable and the World Economic Forum, as well as statements from institutional shareholders like BlackRock. Simultaneously, there has been increasing interest in re-evaluating the purpose of the corporation, for example in the UK and France. The Dutch stakeholder model has evolved over time into a truly workable model in a successful market-based economy. This model has proven to be attractive to US and other foreign investors in Dutch listed companies. The Dutch experience has some important lessons for those seeking to adopt a more stakeholder-oriented governance model. We have learned that there are three key requirements to make such a model work. These are: (i) embed a clear stakeholder mission in the fiduciary duties of the board, (ii) give teeth to that stakeholder mission, while creating appropriate checks and balances, and (iii) foster a stakeholder-oriented mindset and environment. Below, I offer some further insights into these lessons learned.

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SEC Proposes Increase in Form 13F Reporting Threshold

Steve WoloskyAndrew Freedman, and Ron Berenblat are partners at Olshan Frome Wolosky LLP. This post is based on their Olshan memorandum.

On July 10, 2020, the Securities and Exchange Commission (“SEC”) announced that it has proposed amendments to the Form 13F filing requirements to raise the reporting threshold from $100 million to $3.5 billion and to make other changes.

Adopted pursuant to a 1975 statutory directive to the SEC, Section 13(f) of the Securities Exchange Act of 1934 requires institutional investment managers (“managers”) to file Forms 13F with the SEC if they exercise investment discretion with respect to specified publicly traded equity securities (“13(f) securities”) having an aggregate market value of at least $100 million as of the last trading day of any month of any calendar year. Managers who trigger this $100 million threshold must file Forms 13F with the SEC disclosing their 13(f) securities positions as of the last day of the year in which they triggered the threshold and as of the last day of the first three calendar quarters of the subsequent year.

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Introduction to ESG

Mark S. BergmanAriel J. Deckelbaum, and Brad S. Karp are partners at Paul, Weiss, Rifkind, Wharton & Garrison LLP. This post is based on a recent Paul Weiss memorandum by Mr. Bergman, Mr. Deckelbaum, Mr. Karp, David CurranJeh Charles Johnson, and Loretta E. Lynch. 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).

Interest on the part of investors and other corporate stakeholders in environmental, social and governance (“ESG”) matters has surged in recent years, and the current economic, public health and social justice crises have only intensified this focus. ESG, at its core, is a means by which companies can be evaluated with respect to a broad range of socially desirable ends. ESG describes a set of factors used to measure the non-financial impacts of particular investments and companies. At the same time, ESG also provides a range of business and investment opportunities.

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2020 Activist Investor Report

Aniel Mahabier is CEO and Folorunsho Atteh is Senior Corporate Governance Analyst at CGLytics. This post is based on their CGLytics memorandum.

There has been a surge in activist interventions at companies around the world, and there has also been a broadening of focus—activism is no longer the sole province of hedge funds and other specialized investors; activism is now not just seeking to unlock value, but also to intervene in governance and performance areas.

As institutional investors embrace activism at companies in their portfolios, activist campaigns begin
to focus on:

  • Board expertise;
  • Board tenure;
  • Boardroom diversity;
  • Board member age; and
  • Board performance (total shareholder return).

This trend marks a major expansion of both the types of investors who intervene as activists, and the target of such interventions.

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Renewed Interest in IPOs of Public Benefit Corporations

Cydney S. Posner is special counsel at Cooley LLP. This post is based on a Cooley memorandum by Ms. Posner. 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).

I can think of only one public company that is currently a Delaware Public Benefit Corporation. That’s Laureate Education, which initially filed with the SEC in 2015 and went effective in 2017. (See this PubCo post.) Now, finally, we have a second company that has filed for its IPO as a PBC—Lemonade, Inc., which declares on the cover page of its prospectus that it is incorporated in Delaware as a PBC as a demonstration of its “long-term commitment to make insurance a public good.” It’s been quite a long dry spell since the PBC legislation was signed into law in 2013. In the last few years, however, we have witnessed intensifying investor focus on sustainability as a strategy (see, for example, this PubCo post), as well as swelling numbers of companies declaring their commitments to all stakeholders, as reflected, for example, in the Business Roundtable’s adoption of a new Statement on the Purpose of a Corporation (see this PubCo post) and the World Economic Forum’s Stakeholder Principles in the COVID Era (see this PubCo post). What’s more, new legislation just passed by the House in Delaware will, if ultimately signed into law, make it easier to slip in and out of PBC status. [Update: This bill was signed into law on July 16.] Will these trends toward sustainability and stakeholder capitalism, together with the Delaware legislation, fuel a renewed interest in the PBC for public companies and expecting-to-become public companies? Will Lemonade open the floodgates?

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The Market for CEOs

Peter Cziraki is Assistant Professor of Economics at the University of Toronto and Dirk Jenter is Associate Professor of Finance at the London School of Economics & Political Science. This post is based on their recent paper.

CEOs have first-order effects on firms, which makes an efficient CEO labor market important. Several influential studies argue that the market for CEOs is well described by models with perfect competition and no frictions (Tervio 2008; Gabaix and Landier 2008; Edmans, Gabaix, and Landier 2009). Other influential studies argue that firms’ demand for managerial skills has shifted from firm-specific to general (and therefore transferrable) skills (Murphy and Zabojnik 2004, 2007; Frydman 2019).

In this paper, we document actual CEO hiring practices and compare them to the predictions of these (and other) theories. For all new CEOs in the S&P 500 from 1993 to 2012, we document their prior connections to the hiring firm, whether new CEOs were raided from other firms, and how hiring choices differ across firms. We focus on the largest publicly-traded companies as they face the fewest frictions in the managerial labor market and, because of the range of their activities, are likely to require CEOs with general skills.

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Weekly Roundup: July 24–30, 2020


More from:

This roundup contains a collection of the posts published on the Forum during the week of July 24–30, 2020.




Corporate Governance Update: Raising the Stakes for Board Diversity


Comment Letter on DOL Proposed Rule on ESG Investments


The Board’s Role in Guiding the Return to Work


CEO Succession Plans in a Crisis Era


A Flowchart of the Delaware Standards of Review



SEC Identifies Private Fund Deficiencies


Five Key Points About the DOL’s New Fiduciary Rule


Synthetic Governance


Letter to Clayton and Hinman on Virtual and Hybrid Meetings



Mutual Fund Performance and Flows During the COVID-19 Crisis


First Quarter Disclosure Trends and Second Quarter Disclosure Expectations


DOJ and SEC Update FCPA Resource Guide

ESG Agenda

Richard Fields is a Director of Corporate Stakeholder Engagement and Elizabeth Morgan and Cal Smith are partners at King & Spalding LLP. This post is based on their King & Spalding 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).

Oversight of Political and Social Statements

Many companies have made public statements in the wake of George Floyd’s death, addressing complex social issues including racism and inequality. More than 200 S&P 500 companies issued public statements, and many others have sent company-wide internal messages.

Our analysis of these statements shows that companies have become more comfortable making pronouncements with pointed statements that may be polarizing among stakeholders. While a number of these statements sound “corporate” and are unlikely to inspire or offend any readers, many go further. Just a few months ago many companies would have shied away from the phrase “Black lives matter.” A dam has broken.

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