Monthly Archives: September 2021

Weekly Roundup: September 3–9, 2021


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This roundup contains a collection of the posts published on the Forum during the week of September 3–9, 2021.

What Do You Think About Climate Finance?



Silicon Valley 150 Risk Factor Trends Report



SEC Sanctions Company for Hypothetical Cyber Risk Factor



Five Simple Rules for Post-IPO Pay


Getting Back to the Long Term



Three Opinions on Fraud on the Board


2021 Proxy Season Review: Say on Pay Votes and Equity Compensation


Controlling Externalities: Ownership Structure and Cross-Firm Externalities


SEC Advances Broad Theory of Required Disclosures of Security Incidents


The New Corporation: How “Good” Corporations are Bad for Democracy


13F Filing Analysis (2Q 2021)

13F Filing Analysis (2Q 2021)

Jim Rossman is Managing Director and Head of Shareholder Advisory; Mary Ann Deignan is Managing Director; and Christopher Couvelier is Director at Lazard. This post is based on their Lazard memorandum. Related research from the Program on Corporate Governance includes The Long-Term Effects of Hedge Fund Activism by Lucian Bebchuk, Alon Brav, and Wei Jiang (discussed on the Forum here); Dancing with Activists by Lucian Bebchuk, Alon Brav, Wei Jiang, and Thomas Keusch (discussed on the Forum here); and Who Bleeds When the Wolves Bite? A Flesh-and-Blood Perspective on Hedge Fund Activism and Our Strange Corporate Governance System by Leo E. Strine, Jr. (discussed on the Forum here).

Executive Summary

  • Rule 13F-1 of the Securities Exchange Act of 1934 requires institutional investors with discretionary authority over more than $100 million of public equity securities to make quarterly filings on Schedule 13F
    • Schedule 13F filings disclose an investor’s holdings as of the end of the quarter, but generally do not disclose short positions or holdings of certain debt, derivative and foreign listed securities
    • Filing deadline is 45 days after the end of each quarter; filings for the quarter ended June 30, 2021 were due on August 16, 2021
  • Lazard’s Capital Markets Advisory Group has identified 12 core activists, 30 additional activists and 20 other notable investors (listed below) and analyzed the holdings they disclosed in their most recent 13F filings and subsequent 13D and 13G filings, other regulatory filings and press reports
    • For all 62 investors, the focus of Lazard’s analysis was on holdings in companies (excluding SPACs) with market capitalizations in excess of $500 million
  • Lazard’s analysis, broken down by sector and by company, is enclosed. The nine sector categories are:
    • Consumer
    • FIG
    • Healthcare
    • Industrials
    • Media/Telecom
    • PEI
    • Real Estate
    • Retail
    • Technology
  • Within each of these sectors, Lazard’s analysis is comprised of:
    • A one-page summary of notable new, exited, increased and decreased positions in the sector
    • A list of companies in the sector with activist holders and other notable investors
  • Companies are listed in descending order of market capitalization
    • Lazard will continue to conduct this analysis and produce these summaries for future 13F filings
    • The 13F filing deadline for the quarter ending September 30, 2021 will be November 15, 2021

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The New Corporation: How “Good” Corporations are Bad for Democracy

Joel Bakan is Professor at the University of British Columbia Peter A. Allard School of Law. This post is based on his recent book. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance (discussed on the Forum here) and Will Corporations Deliver Value to All Stakeholders?, both by Lucian A. Bebchuk and Roberto Tallarita; For Whom Corporate Leaders Bargain by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita (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).

On August 19, 2019, the Business Roundtable, led by JPMorgan Chase’s Jamie Dimon and composed of more than two hundred of America’s top CEOs, heralded the dawn of a new age of corporate capitalism. Henceforth, the CEOs proclaimed, the purpose of publicly traded corporations would be to serve the interests of workers, communities, and the environment, not only their shareholders. The declaration capped a two-decades-long trend of corporations claiming to have changed into caring and conscientious actors, ready to lead the way in solving society’s problems. I call it the “new” corporation movement.

To find out more about it, I visited the movement’s global hub, the World Economic Forum’s annual meeting in Davos, founded and run by economist Klaus Schwab, who originated the idea of ‘stakeholder capitalism’. “Companies recognize that they have a special responsibility in the world, social and environmental responsibility,” Schwab told me in an interview. “Today it is, and has to be, part of corporate action and decision-making.” Everyone I met in Davos agreed. Richard Edelman, for example, told me how today’s corporations embrace social and environmental values as core values, “in the supply chain, in the hiring practices, throughout the corporation,” no longer just as peripheral “philanthropic exercises.” Michael Porter added “it’s quite remarkable how big a shift that’s been—the corporation has really reshaped and redefined itself.”

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SEC Advances Broad Theory of Required Disclosures of Security Incidents

Fran Faircloth and Nameir Abbas are associates at Ropes & Gray LLP. This post is based on their Ropes & Gray memorandum.

A recent SEC settlement has again demonstrated the Commission’s continued attention to public companies’ disclosures of cybersecurity incidents and its commitment to a broad notion of what constitutes such an incident. On August 16, the SEC entered a settlement agreement with Pearson plc, a UK-based educational publishing company that is publicly traded on both the London Stock Exchange and New York Stock Exchange via ADRs. While Pearson made no admissions in the agreement, it will pay a $1 million civil penalty to settle the SEC’s allegations that Pearson misled investors in its disclosures related to a 2018 cybersecurity breach.

Five key aspects of this settlement merit attention from a cybersecurity perspective because they are arguably more aggressive than the practices that have developed under state data breach laws:

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Controlling Externalities: Ownership Structure and Cross-Firm Externalities

Dhammika Dharmapala is the Paul H. and Theo Leffmann Professor at the University of Chicago Law School and Vikramaditya Khanna is William W. Cook Professor of Law at the University of Michigan Law School. This post is based on their recent paper. Related research from the Program on Corporate Governance includes The Agency Problems of Institutional Investors by Lucian Bebchuk, Alma Cohen, and Scott Hirst (discussed on the Forum here); and Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy by Lucian Bebchuk and Scott Hirst (discussed on the forum here).

Our new working paper on “Controlling Externalities: Ownership Structure and Cross-Firm Externalities” develops a general conceptual framework for understanding how firms’ ownership structure and corporate law affect the internalization of cross-firm externalities and proposes a new metric (called “Controller Wealth Concentration”) designed to provide a simple characterization of the incentives of controllers in this regard. We use this metric—and other sources of evidence—to argue that the prevalence of controlling shareholders around the world (including at many important US firms) poses a significant challenge to the internalization of cross-firm externalities through the influence of diversified owners such as index funds. Further, this suggests that working toward better regulation and liability regimes may be inescapable, even though these have their own challenges.

In recent years, debates over the social purpose of corporations have taken center stage in both public discourse and in corporate law scholarship. This development has been spurred by rising concern about externalities generated by the activities of corporations, such as those associated with climate change and harmful speech. A central underlying premise of these debates is that government regulation and liability regimes appear not to be functioning sufficiently well to force firms to internalize these externalities. There is thus rising interest in exploring alternative mechanisms. In particular, a rapidly growing body of scholarship argues that index funds increasingly approximate diversified “universal owners” with incentives to maximize portfolio value (and thus to internalize cross-firm externalities).

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2021 Proxy Season Review: Say on Pay Votes and Equity Compensation

Marc Treviño and Jeannette Bander are partners and June Hu is an associate at Sullivan & Cromwell LLP. This post is based on a Sullivan & Cromwell memorandum by Mr. Treviño, Ms. Bander, Ms. Hu, Aaron Levine, and Rebecca Rabinowitz.

Say-on-Pay Votes:

  • Public companies continue to perform strongly, with support levels averaging 93% and less than 3% of companies failing
  • Continuing turnover in failed votes, with 79% of companies that failed last year achieving over 70% support this year and no companies failing in both 2020 and 2021
  • ISS negative recommendations highlight continued importance of pay-for-performance assessment, with the most important factor continuing to be alignment of CEO pay with relative total shareholder return
  • The most important qualitative factors are performance standards that are deemed not sufficiently rigorous or are not sufficiently disclosed, followed by the use of subjective criteria for determining compensation
  • ISS also frequently cited the adjustment of previously granted awards, often due to the impact of COVID-19

Equity Compensation Plans:

  • Broad shareholder support for equity compensation plans, with only three Russell 3000 companies failing to obtain shareholder approval for an equity compensation plan, and overall support levels at Russell 3000 and S&P 500 companies averaging around 91%

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Three Opinions on Fraud on the Board

Nathaniel J. Stuhlmiller is a director and Brian T.M. Mammarella is an associate at Richards, Layton & Finger. This post is based on their Richards, Layton & Finger memorandum, and is part of the Delaware law series; links to other posts in the series are available here.

In a footnote in a two-page order issued in 2018, the Delaware Supreme Court quietly reminded corporate law practitioners that, per the 1989 case of Mills Acquisition v. Macmillan, a complaint seeking post-closing Revlon damages can survive a motion to dismiss without pleading nonexculpated breaches of fiduciary duty by a majority of directors so long as a single conflicted fiduciary deceived the entire board. See Kahn v. Stern, 183 A.3d 715 (Del. 2018) (TABLE). In the three years that followed, this “fraud-on-the-board” theory of liability has received long-form discussion in at least eight published Delaware opinions and evolved into a Swiss Army knife for stockholder-plaintiffs—indeed, Delaware courts have recently applied the once-obscure theory to serve at least three distinct doctrinal ends. This article describes, at a high level, what fraud on the board is by pinpointing the various doctrinal roles it has played in three recent opinions issued by the Delaware Court of Chancery.

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The Coming Shift in Shareholder Activism: From “Firm-Specific” to “Systematic Risk” Proxy Campaigns (and How to Enable Them)

John C. Coffee, Jr. is the Adolf A. Berle Professor of Law at Columbia University Law School. This post is based on his recent paper. Related research from the Program on Corporate Governance includes The Long-Term Effects of Hedge Fund Activism by Lucian Bebchuk, Alon Brav, and Wei Jiang (discussed on the Forum here); Dancing with Activists by Lucian Bebchuk, Alon Brav, Wei Jiang, and Thomas Keusch (discussed on the Forum here); and Who Bleeds When the Wolves Bite? A Flesh-and-Blood Perspective on Hedge Fund Activism and Our Strange Corporate Governance System by Leo E. Strine, Jr. (discussed on the Forum here).

A new form of shareholder activism has appeared almost out of the blue. Classic shareholder activism (which I will call “firm specific” activism) depends on an entrepreneur (usually an activist hedge fund) who assembles a 5% (or greater) block of stock, files a Schedule 13D that announces its plans for the target company (which might include changing management, breaking up the company, or increasing its leverage), and then profits on that block when the market responds favorably. But in this new form — “systematic risk activism” — the key actors are index funds and diversified asset managers. Nor do they necessarily expect a positive market reaction in the short-run. Being fully diversified, these investors care little about the specifics of any individual company in their portfolio. For example, State Street Global Advisors holds over 11,000 stocks, all for the long-run.

According to the Capital Asset Pricing Model, the goal of these investors should be to seek to reduce their exposure to “systematic risk” (which is defined as the risk that remains in any portfolio after it is fully diversified). Today, the consensus among investment managers is that the leading systematic risk comes from climate change. I describe the rationale and mechanisms of this new form of activism in an article just posted on SSRN, but its key features are discernible in Engine No. 1’s successful, but problematic, proxy contest this year against ExxonMobil.

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Getting Back to the Long Term

Blair Jones and Roger Brossy are Managing Directors at Semler Brossy Consulting Group LLC. This post is based on their Semler Brossy memorandum. Related research from the Program on Corporate Governance includes The Myth that Insulating Boards Serves Long-Term Value by Lucian Bebchuk (discussed on the Forum here); Don’t Let the Short-Termism Bogeyman Scare You by Lucian Bebchuk (discussed on the Forum here); and The Uneasy Case for Favoring Long-Term Shareholders by Jesse Fried (discussed on the Forum here).

With the coronavirus pandemic (we hope) tapering off this summer, boards are looking ahead to more normal compensation programs for 2022. They can pull back on the extraordinary measures and structures of 2020–21 and return to their long-term paths to strengthen or transform their organizations. Those paths were already a bit obscured by ongoing disruption in many industries, but then the pandemic pushed them decisively to the side. Companies can now get out of reactive mode and start to control their future again.

Still, it’s important for boards to resist the temptation to pick up where they left off in 2019. The pandemic and other developments have changed the landscape for corporate behavior and strategy. Executive compensation must adapt accordingly for companies to capture fresh opportunities and overcome new challenges.

Taking Stock

2020 was especially difficult for many boards. For their compensation programs, many resorted to new measures, goals, and performance periods, or used discretion. Others introduced special awards to promote retention or maintain motivation. Many of these approaches veered from the typical path but were deemed necessary to administer relevant and fair rewards amid the crises.

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Five Simple Rules for Post-IPO Pay

Todd Sirras is Managing Director and Austin Vanbastelaer is a Consultant at Semler Brossy Consulting Group, LLC. This post is based on their Semler Brossy memorandum.

You’re chair of the compensation committee for the most recent successful initial public offering (IPO). Pre-IPO shareholders and employees are sitting on large unrealized gains. Your visionary leaders, the team that carries the company’s DNA, have just realized wealth beyond all expectations. That’s great!

But now you have a problem: with less financial incentive—plus the added visibility, accountability, and responsibility of a public company—leaders might begin looking for new challenges elsewhere post-IPO.

How does the board keep the magic alive as the company matures? How does the organization keep talent engaged when financial incentives become less effective? How do you keep competitors—whether established or upstarts—from coming for your now-proven talent?

The principle is simple, yet nuanced in practice: Retaining and engaging critical talent is equally important before and after a public listing. It’s just that the forces at play are different.

Here are five “levers” that can facilitate continued engagement and promote retention after public company liftoff:

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