Daily Archives: Monday, May 24, 2021

Corporate Purpose and Corporate Competition

Mark J. Roe is David Berg Professor of Business Law at Harvard Law School. This post is based on his 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); For Whom Corporate Leaders Bargain by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita (discussed on the Forum here); Socially Responsible Firms by Alan Ferrell, Hao Liang, and Luc Renneboog (discussed on the Forum here); and Restoration: The Role Stakeholder Governance Must Play in Recreating a Fair and Sustainable American Economy—A Reply to Professor Rock by Leo E. Strine, Jr. (discussed on the Forum here).

The large American corporation faces ever-rising pressure to pursue a purpose that is more than just for shareholder profit. This rising pressure interacts with sharp changes in industrial organization in a way that ought to be further analyzed and considered: at the same time that purpose pressure has been increasing, firms’ capacity to accommodate pressure for a wider purpose is rising as well.

I begin this paper by contrasting classical corporate purpose—shareholder primacy—with the wider purpose sought today. I then ask: In principle, is purpose pressure more likely to succeed in a competitive industry or a non-competitive one?

Once we see that accommodating a nonprofitable purpose in a competitive market faces more hurdles than in a noncompetitive one, I then explore the extent to which the facts-on-the-ground match the expected relationship. I start with the evidence of decreasing competition and then turn to the evidence that stakeholders do better in markets where competition is weak. More profitable firms share profits with stakeholders and are more socially responsible than less profitable firms.

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Incorporating ESG Measures Into Executive Compensation Plans

Kristen Sullivan is Partner, Sustainability and KPI Services, at Deloitte & Touche LLP, and Maureen Bujno is Managing Director and Audit & Assurance Governance Leader at the Center for Board Effectiveness, Deloitte & Touche LLP. Related research from the Program on Corporate Governance includes the book Pay without Performance: The Unfulfilled Promise of Executive Compensation, by Lucian Bebchuk and Jesse Fried, and Executive Compensation as an Agency Problem by Lucian Bebchuk and Jesse Fried.

Introduction

With the 2021 proxy season underway, environmental, social, and governance (ESG) topics are dominating the conversation. While dialog between companies, investors, and other stakeholder groups has accelerated on a variety of ESG topics, the role of ESG in long-term value creation had already been steadily increasing. According to a recent study, investors that collectively manage $17.1 trillion in US-domiciled assets have adopted sustainable investing strategies, which integrate ESG criteria within investment decisions. Sustainable investing has increased nearly 43% since 2018, demonstrating that the incorporation of ESG considerations into investment decisions has gained significant traction. [1] Many companies now recognize that developing and implementing an ESG strategy is more the norm than an exception and are evaluating how best to demonstrate progress through robust measures and enhanced disclosures.

Investors have made their ESG expectations known and will likely continue to use their voting power to hold companies accountable for meaningful progress, demonstrated through effective disclosure, on ESG issues in this year’s proxy season. For example, in his 2021 annual letter to CEOs, BlackRock CEO Larry Fink reinforced his previous call for companies to align ESG and climate disclosures with leading standards, such as the Sustainability Accounting Standards Board (SASB) and Task Force on Climate-related Financial Disclosures (TCFD). His 2021 letter further emphasized a focus on climate, specifically net-zero strategies, as well as on pertinent talent strategy elements such as diversity, equity, and inclusion. Given this and similar statements, it is not surprising that in 2021, many investors have signaled plans to increase support for shareholder sustainability proposals.

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The WeWork Decision and its Implications for Director Email Accounts

Nicholas O’Keefe is partner, Douglas F. Curtis is senior counsel, and Max Romanow is an associate at Arnold & Porter Kaye Scholer LLP. This post is based on an Arnold & Porter memorandum by Mr. O’Keefe, Mr. Curtis, Mr. Romanow, and Matthew J. Douglas, and is part of the Delaware law series; links to other posts in the series are available here.

Introduction

A recent Delaware court decision, In re WeWork Litigation, put a spotlight on the risk of corporate employees and directors destroying privilege by communicating through email. Questions about the security and confidentiality of electronic communications have been around for a long time. But at least under Delaware law, the WeWork decision expanded the applicability of a test that was originally intended for evaluating privilege in the context of employer-employee disputes where the employee uses a work email address for communicating with his or her personal attorney. WeWork applied the test and held that privilege was destroyed where two employees of Sprint, a company then 84% owned by SoftBank Group Corp. (SoftBank), exchanged emails about The We Company (WeWork), which was another company in which SoftBank had a significant investment, using their Sprint email accounts. This broader application of the test has implications for whether companies communicating privileged information with their outside directors through email accounts held by those directors with their employers risks destroying privilege.

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