Yearly Archives: 2021

NYSE Proposes to Permanently Amend Stockholder Approval Rules

Eleazer Klein is partner and Evan A. Berger is an associate at Schulte Roth & Zabel LLP. This post is based on their SRZ memorandum.

In April 2020, the NYSE initially adopted, and the SEC approved, a temporary waiver (“NYSE Waiver”) of certain NYSE stockholder approval rules set forth in Section 312.03 of the NYSE Listed Company Manual (“NYSE Manual”) in order to lessen the hurdles companies face when seeking to raise capital, as many needed to do during the COVID-19 pandemic. [1]

After a series of extensions of the NYSE Waiver (the latest through March 31, 2021), the NYSE is proposing to officially amend Section 312.03 of the NYSE Manual. The proposed rule change will now go through a notice and comment period, but, if adopted, will make permanent the following.

Rule 312.03(b) — The Related Party Stockholder Approval Rule, as amended, would:

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ESG Disclosures: Guiding Principles and Best Practices for Investment Managers

Helen Marshall and Ezra Zahabi are partners at Akin Gump Strauss Hauer & Feld LLP. This post is based on an Akin Gump memorandum by Ms. Marshall, Ms. Zahabi, and Andrea Gonzaga. 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); Reconciling Fiduciary Duty and Social Conscience: The Law and Economics of ESG Investing by a Trustee by Max M. Schanzenbach and Robert H. Sitkoff (discussed on the Forum here); and Companies Should Maximize Shareholder Welfare Not Market Value by Oliver Hart and Luigi Zingales (discussed on the Forum here).

Whether preparing or reviewing Environmental, Social, and Governance (ESG) disclosures for compliance with regulatory requirements in the EU, the United Kingdom (UK) or the United States (US), or for alignment with ESG best practices more broadly in response to investor demand, investment managers and their funds should consider certain guiding principles and best practices.

In the EU, the advice provided by the Securities and Markets Stakeholder Group (“EU Stakeholder Group”) to the European Supervisory Authorities (ESAs) on the draft ESG disclosure templates under the Sustainable Finance Disclosure Regulation (SFDR) highlights a number of guiding principles and best practices, which are relevant irrespective of whether an investment manager or its funds are subject to the SFDR.

The Task Force on Climate-related Financial Disclosures (TCFD) Recommendations, on which the UK disclosures regime will be based, also include seven fundamental principles “to help achieve high-quality and decision-useful disclosures that enable users to understand the impact of climate change.” Similar guiding principles were also echoed by the Financial Conduct Authority’s (FCA) Director of Strategy in his speech on sustainable investments, during which he also stated that “immediate areas of focus are the SFDR and the EU’s Taxonomy for sustainable activities.”

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Primary Direct Listings: A Hybrid Approach to a Traditional IPO Alternative

Anna T. Pinedo and Brian Hirshberg are partners and Carlos Juarez is a manager at Mayer Brown LLP. This post is based on their Mayer Brown memorandum.

Shortly before the end of his tenure as Chair of the Securities and Exchange Commission (SEC), Chair Jay Clayton presided over the SEC as it considered and approved the New York Stock Exchange’s (NYSE) proposed rule change modifying the NYSE’s rules in order to permit, as described below, primary issuances in connection with a direct listing of a class of the issuer’s equity securities on the exchange. As summarized in the timeline, the SEC’s consideration of the NYSE’s proposed rule change and the proposed rule change includes a number of twists and turns.

NYSE Proposal Approval Timeline

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Delaware Supreme Court Affirms AmerisourceBergen Ruling that Company Must Produce Documents

Lori Marks-Esterman, Steve Wolosky, and Andrew Freedman are partners at Olshan Frome Wolosky LLP. This post is based on their Olshan memorandum, and is part of the Delaware law series; links to other posts in the series are available here.

Last month, the Delaware Supreme Court issued an important decision regarding stockholders’ rights to review the books and records of Delaware corporations. In AmerisourceBergen Corporation v. Lebanon County Employees’ Retirement Fund and Teamsters Local 443 Health Services & Insurance Plan, No. 60, 2020 (Del. 10, 2020), the Delaware Supreme Court, on an interlocutory appeal from the Delaware Court of Chancery, upheld the Court of Chancery’s memorandum opinion holding that the plaintiffs had demonstrated a proper purpose for conducting an inspection of AmerisourceBergen’s books and records under Section 220 of the Delaware General Corporation Law (“Section 220”), and directing the production of the company’s books and records. The Delaware Supreme Court decision contained three critical rulings: (i) when a Section 220 inspection demand states a proper investigatory purpose, the Section 220 demand need not identify the particular course of action the stockholder will take if the books and records confirm the suspicion of wrongdoing; (ii) a stockholder seeking a Section 220 inspection is not required to establish that the wrongdoing being investigated is actionable; and (iii) the Court of Chancery’s allowance of a post-trial deposition to identify what types of records exist was not reversible error.

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Proposed SEC Rule 144 Amendments

Jeff Karpf and Michael Dayan are partners and Marc Rotter is senior attorney at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary memorandum by Mr. Karpf, Mr. Dayan, Mr. Rotter, Adam Fleisher and Les Silverman.

On December 22, 2020, the Securities and Exchange Commission (the “SEC”) published proposed amendments to Rule 144 under the Securities Act of 1933 (the “Securities Act”). [1] Rule 144 is a safe harbor allowing for public resales of securities without registration under the Securities Act. [2] It includes two separate sets of requirements—one applicable to “control securities” and one applicable to “restricted securities”—both of which the SEC proposed to amend. Although the proposed change to the tacking provisions applicable in certain limited circumstances to restricted securities may appear to be the only substantive change being proposed, we believe the proposed amendments to the reporting requirements applicable to control securities, while largely technical in nature, would have the more significant practical effect of increasing the amount and timeliness of disclosure regarding sales by affiliates of foreign private issuers.

Proposed Changes to the Requirements Applicable to Control Securities

Whether a security is a “control security” depends on the investor’s relationship with the issuer—whether the investor is an “affiliate” [3]—and not how the securities were acquired. Investors holding “control securities” can rely on Rule 144 only if the issuer meets certain public information requirements, the resale complies with strict manner of sale and volume requirements and (unless the resale fits under certain de minimis thresholds) the investor files a Form 144 with the SEC. In the Proposing Release, the SEC proposed three significant changes to Form 144 filing requirements:

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New LBO Practices May Be Warranted Based on the Nine West Decision

Gail Weinstein is senior counsel, and Philip Richter and Brad Eric Scheler are partners at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Ms. Weinstein, Mr. Richter, Mr. Scheler, Steven Epstein, Warren S. de Wied, and Gary L. Kaplan.

Business headlines have warned of a potential “chilling effect on buyouts” as a result of the decision recently issued by the U.S. District Court for the Southern District of New York in In re: Nine West LBO Securities Litigation (Dec. 4, 2020). Contrary to the views of some other commentators on the decision, we do not believe that the decision is likely to chill leveraged buyout activity, to upend how LBOs have been conducted, or to significantly increase the potential of liability for target company directors selling the company in an LBO. In our view, the decision is not intended to change the basic ground rules relating to LBOs, but, rather, as discussed below, the court’s result principally reflects the unusual aspects of this case.

Nine West involved the acquisition, in an LBO, of The Jones Group, Inc. (“Jones” or the “Company”) (a publicly traded fashion retail company) by an affiliate of private equity firm Sycamore Partners Management, L.P. Four years after the LBO closed, Jones (then renamed Nine West Holdings, Inc.) filed for bankruptcy. In a prior Bankruptcy Court proceeding, the court held that the LBO was not a fraudulent conveyance under the federal bankruptcy laws (because it fit within a statutory safe harbor for payments made through a financial institution). In this most recent decision, however, the court held, at the pleading stage, that the former Jones directors (none of whom, according to the court, had engaged in self-dealing or were affiliated with the buyer) may have breached their fiduciary duty to the Company by not having sufficiently evaluated whether the LBO “would lead to insolvency” post-closing. As a result, the court rejected dismissal of the claims brought by the bankruptcy trustees against the former Jones directors.

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Coordinated Engagements

Oğuzhan Karakaş is Senior Lecturer in Finance at the University of Cambridge Judge Business School; Elroy Dimson is Research Director of Finance at the University of Cambridge Judge Business School; and Xi Li is Associate Professor of Accounting at the London School of Economics. This post is based on their recent paper. 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); Reconciling Fiduciary Duty and Social Conscience: The Law and Economics of ESG Investing by a Trustee by Max M. Schanzenbach and Robert H. Sitkoff (discussed on the Forum here); and Companies Should Maximize Shareholder Welfare Not Market Value by Oliver Hart and Luigi Zingales (discussed on the Forum here).

In our recent paper, Coordinated Engagements, we study the nature of and outcomes from coordinated engagements by a prominent international network of long-term shareholders cooperating to influence firms on environmental and social (E&S) issues. We examine the targeting and engagement strategy, success rates and financial outcomes of institutional investors who have coordinated their engagements through the Collaboration Platform provided by the Principles for Responsible Investment (PRI). Founded in 2006 and supported by the United Nations (the UN), PRI has become the leading network and the largest initiative worldwide for investors with a commitment to responsible ownership and long-term, sustainable returns.

Our dataset is granular and comprehensive, including 31 PRI engagement projects initiated between 2007 and 2015. Each project is originated and coordinated by PRI but is carried out by a group of investment organizations, including investment managers, asset owners, and service providers. A project involves dialogues with numerous targets—on average, with 53 public firms across the globe. Each target in a project may be engaged by a different group of owners, managers and service providers. On average, a group comprises 26 organizations (2 domestic and 24 foreign) whom we refer to collectively as ‘investors’.

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Weekly Roundup: January 15-20, 2021


More from:

This roundup contains a collection of the posts published on the Forum during the week of January 15-20, 2021.

CEO Succession Practices in the Russell 3000 and S&P 500


The Rise of Growth Equity—Connecting PE and VC


Financing Year in Review: From Crisis to Comeback


Climate Activism: Status Check and Opportunities for Public Companies






2020 Securities Related Settlements Exceed $5.8 Billion


Directors Using Their Employer’s Email Account




SEC Resource Extraction Payments Final Rule


Why ESG Can No Longer Be a PR Exercise


The Party Structure of Mutual Funds


FTC Seeks Information Regarding Companies’ Data Collection, Use, and Advertising Practices



Racial Diversity and Investment

Racial Diversity and Investment

Colin Melvin is founder and managing director of Arkadiko Partners Ltd. and former Global Head of Stewardship at Hermes Investment Management. This post is based on his Arkadiko memorandum.

Racial diversity—iniquity and interdependence

Whilst gender diversity has been a growing priority for several years, investors have not approached racial diversity with similar enthusiasm and urgency. In the UK, the Parker Review and Baroness McGregor-Smith’s recommendations urged public policy makers and private organisations to focus on increasing ethnic minority representations on boards in FTSE 100 companies [1] and publishing ethnicity pay gap figures. [2] However, little progress has been made. The topic of racial diversity in the investment industry was recently raised in an open letter in the UK from a group called Black Women in Asset Management, challenging the industry to move beyond statements on solidarity and anti-racism. [3] The extensive Black Lives Matter protests, catalysed by the killing of George Floyd, have highlighted our interdependence in the midst of a global health crisis and the urgent need for action. It is time to ask what institutional investors can do to address the increasingly evident racial iniquities and their inconsistency with commitments to responsibility in business and investment.

Unequal opportunities

Institutional investors face a significant cultural challenge in addressing the problems of racism, unequal opportunities and an associated lack of racial diversity in their industry. It is no longer sufficient that they simply declare what they expect of investee companies in respect to diversity. They need to act upon this and embrace diversity within their own investing institutions or asset management businesses. They have an opportunity to draw parallels between the power of diversification in their investments and diversification in their hiring and management of talent, as adding significant value in both contexts. Investment teams with diverse backgrounds contribute with a larger variety of perspectives, which will ultimately increase the quality of investment decision-making.

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Performing Equity: Why Court of Chancery Transcript Rulings Are Law

Joel Friedlander is partner at Friedlander & Gorris, P.A. This post is based on his recent paper, and is part of the Delaware law series; links to other posts in the series are available here.

Lawyers practicing in the Delaware Court of Chancery or advising Delaware corporations about Delaware corporate law read, inquire about, cite, and disseminate transcript rulings, which are also known as bench rulings. To the practitioner, they are an indispensable tool. They influence our behavior and those of our adversaries. They help predict future litigation outcomes. In that Holmesian sense, they constitute law: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”

In the Delaware Court of Chancery, leadership applications, expedition motions, scheduling disputes, discovery motions, settlement hearings, and fee applications are regularly adjudicated orally or by entry of short minute orders. Merits rulings, such as motions to dismiss, preliminary injunction applications, advancement of legal fees, and summary judgment motions may also be adjudicated orally. A large corpus of unpublished rulings address all aspects of corporate law litigation.

Court of Chancery practitioners have long collected for future reference transcript rulings, letter opinions, orders, and other unpublished decisions. It was not until the 1990s that unpublished memorandum opinions and letter opinions became widely available on Lexis. Upon the publication a generation ago of a treatise on Delaware Court of Chancery practice, a book review attested to the treatise’s utility in light of practitioners’ prior need to collect unpublished rulings.

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