Monthly Archives: October 2021

Weekly Roundup: October 1–7, 2021


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This roundup contains a collection of the posts published on the Forum during the week of October 1–7, 2021.


Key Takeaways From Recent SEC Cybersecurity Charges


Chancery Court Decision on the “Effect of Termination” Provision


The HCM Funnel


SPAC Momentum Continues in Europe


The Audit Committee’s Role in Sustainability/ESG Oversight


Cybersecurity and Disclosures


The Reliability of Your Company’s Carbon Footprint


Investors and Regulators Turning up the Heat on Climate-Change Disclosures


SPACs: A New Frontier for Shareholder Activism


Director Pay Levels Were Flat Among the 100 Largest US Companies


2021 ESG + Incentives Report





CEO and Executive Compensation Practices in the Russell 3000 and S&P 500



ESG as the Driving Factor in Multi-Country Class Action Cases

Jeff Lubitz is Executive Director of ISS Securities Class Action Services; and Duncan Paterson is Head of ESG Thought Leadership Program at ISS ESG, Institutional Shareholder Services, Inc. This post is based on their ISS 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); Companies Should Maximize Shareholder Welfare Not Market Value by Oliver Hart and Luigi Zingales (discussed on the Forum here); and 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).

Key Takeaways

  • Climate change and other ESG factors are driving a heightened focus on stewardship practices among responsible investors.
  • Investors, both passive and active, should be mindful of litigation risks and recovery opportunities in their portfolio.
  • Originally driven by climate issues, ESG-related litigation is expanding into other ESG areas and across a range of asset classes.
  • ESG event-driven security class actions are increasing in number, and capturing a broad range of global brands on a number of different topics.
  • Global corporations tend to handle class actions differently in different jurisdictions, with many being settled in the US but drawn out in other markets.
  • This practice has implications for global investors interested in expanding their stewardship and fiduciary practices to include active management of securities class action risk.

Introduction

Investors are paying increasing attention to their stewardship practices and fiduciary responsibilities in relation to securities class actions. With a settlement pipeline standing at approximately $8 billion, there is a case to be made that filing claims to recover losses incurred from fraud in securities class action cases is both a fiduciary duty and a sound business practice.

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Investor Protection in an Age of Entrepreneurship

James J. Park is Professor of Law at UCLA School of Law. This post is based on his recent paper, forthcoming in the Harvard Business Law Review.

In this age of entrepreneurship, emerging companies have created trillions of dollars in new market value. Remarkably, many of the most promising ventures have gone public without an extensive history of profitability. Indeed, many are losing significant amounts as they command valuations once reserved for blue chip corporate giants with decades of substantial profits. The undeniable success of companies like Amazon, Google and Facebook has created a template for new ventures that are able to sell shares at prices that anticipate the possibility of future wealth. Investors, mostly institutions, have reaped billions of dollars in gains as emerging companies have gone public.

The investor protection policy of federal securities regulation faces new challenges in this climate. The longstanding model where companies are only permitted to sell stock to the public after generating several years of profits and surviving scrutiny from an independent underwriter is under pressure. Rather than protecting investors, securities law seems like a barrier that delays access to promising investments. The SEC has defined investor protection so vaguely that its goals are unclear. It has no theory that explains why investors are permitted to take on some risks but not others.

This paper sets forth a conception of investor protection that better articulates the role of the securities laws in this new period of entrepreneurship. It argues that an important function of securities regulation is to distinguish between risk and uncertainty. As famously defined by the University of Chicago economist Frank Knight, a risk can be estimated and quantified while an uncertainty is not subject to meaningful estimation. Put another way, a “risk” is a “measurable uncertainty” that should be distinguished from “uncertainty” that is “immeasurable.”

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CEO and Executive Compensation Practices in the Russell 3000 and S&P 500

Matteo Tonello is Managing Director of ESG Research at The Conference Board, Inc. and Olivia Tay is Senior Consultant at Semler Brossy Consulting Group. This post is based on a Conference Board report by Mr. Tonello, Ms. Tay, Mark Emanuel, Paul Hodgson, and Todd Sirras, and relates to CEO and Executive Compensation Practices in the Russell 3000 and S&P 500: 2021 Edition, an annual benchmarking study and online dashboard published by The Conference Board, compensation consultancy Semler Brossy Consulting Group, and ESG data analytics firm ESGAUGE. Related research from the Program on Corporate Governance includes Paying for Long-Term Performance by Lucian Bebchuk and Jesse Fried (discussed on the Forum here).

CEO and Executive Compensation Practices in the Russell 3000 and S&P 500: 2021 Edition documents trends and developments in senior management compensation at 2,527 companies issuing equity securities registered with the US Securities and Exchange Commission (SEC) that filed their proxy statement in the period between January 1 and June 30, 2021, and, as of January 2021, were included in the Russell 3000 Index. The project is a collaboration among The Conference Board, compensation consulting firm Semler Brossy, and ESG data analytics firm ESGAUGE.

The following are the key findings and insights.

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Proposed Legislation to Address the Problem of Woke Corporations

Marco Rubio is U.S. Senator from Florida. This post is based on his proposed legislation before the United States Senate. 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).

The public support by large corporations for socially progressive ideologies, both in politics and business, has created a crisis of legitimacy for corporate America. By embracing the “woke” revolution that is politicizing nearly every area of Americans’ lives, corporate America has severely damaged its credibility with the rest of the country, and broken its relationship with conservatives and the Republican Party. This collapse of trust not only harms the health of our public life; it prevents large corporations from effectively serving the patriotic and necessary roles we need them to in order to advance the common good. It is time to change course.

To everyday working Americans, the examples of corporations pushing the woke revolution in our society are so plentiful that it should hardly require further explanation. But because it may be difficult to observe from the inside, a reminder of that in this forum may be helpful. According to a recent survey by American Compass, 63 percent of non-management workers want businesses to “focus on business and stay out of social justice issues” like “election reform, racial equity, and LGBTQ+ rights.” Among the workforce generally, those numbers went up to 66 percent of independents and 85 percent of Republicans. The greatest levels of support for companies taking a public stance on behalf of social justice were white, college-educated Democrats, at 77 percent.
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Testimony by Chair Gensler Before the United States House of Representatives Committee on Financial Services

Gary Gensler is Chair of the U.S. Securities and Exchange Commission. This post is based on his recent testimony Before the U.S. House Committee on Financial Services. The views expressed in the post are those of Chair Gensler, and do not necessarily reflect those of the Securities and Exchange Commission or the Staff.

Good afternoon, Chairwoman Waters, Ranking Member McHenry, and members of the Committee. I’m honored to appear before you today for the second time as Chair of the Securities and Exchange Commission. As is customary, I will note that my views are my own, and I am not speaking on behalf of my fellow Commissioners or the staff.

We are blessed with the largest, most sophisticated, and most innovative capital markets in the world. The U.S. capital markets represent 38 percent of the globe’s capital markets. [1] This exceeds even our impact on the world’s gross domestic product, where we hold a 24 percent share. [2]

Furthermore, companies and investors use our capital markets more than market participants in other economies do. For example, debt capital markets account for 80 percent of financing for non-financial corporations in the U.S. In the rest of the world, by contrast, nearly 80 percent of lending to such firms comes from banks. [3]

Our capital markets continue to support American competitiveness on the world stage because of the strong investor protections we offer.

We keep our markets the best in the world through efficiency, transparency, and competition. These features lower the cost of capital for issuers, raise returns for investors, reduce economic rents, and democratize markets. That focus on competition is in every part of the SEC’s work, particularly with respect to market structure.

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Dealing with Activist Hedge Funds and Other Activist Investors

Martin Lipton is a founding partner of Wachtell, Lipton, Rosen & Katz, specializing in mergers and acquisitions and matters affecting corporate policy and strategy. This post is based on a Wachtell Lipton memorandum by Mr. Lipton, Steven A. RosenblumKaressa L. Cain, Sabastian V. Niles, and Anna Dimitrijević. 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).

Despite a short dip at the outset of the pandemic, activism has rebounded and now continues at an ever-growing intensity. As we have previously noted, regardless of industry, size or performance, no company should consider itself immune from activism. No company is too large, too popular, too new or too successful. Even companies that are respected industry leaders and have outperformed the market and their peers have been and are being attacked. And companies that have faced one activist may be approached, in the same year or in successive years, by other activists or re-visited by the prior activist.

Although asset managers and institutional investors will often act independently of activists, the relationships between activists and asset managers and investors in recent years have encouraged frequent and aggressive activist attacks. A number of hedge funds have also sought to export American-style activism abroad, with companies throughout the world now facing classic activist attacks. In addition, the line between hedge fund activism and private equity continues to blur, with some activist funds becoming bidders themselves for all or part of a company, and a handful of private equity funds exploring activist-style investments in, and engagement with, public companies.

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2021 ESG + Incentives Report

John Borneman is Managing Director, Tatyana Day is Senior Consultant, and Kevin Masini is a Consultant at Semler Brossy Consulting Group LLC. This post is based on a Semler Brossy memorandum by Mr. Borneman, Ms. Day, Mr. Masini, Matthew Mazzoni, and Jennifer Teefey. 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).

As the use of ESG metrics in incentive plans continues to grow, we see a diverse set of models by which companies incorporate these metrics. As with many ‘non-financial’ metrics, the use of ESG metrics within a ‘scorecard’ is a common approach, although this is certainly not the only solution. We anticipate the evolution toward incorporating more weighted and prominent ESG structures into plan design to continue to grow in the coming years.

In this post, we analyze the reported design approach to incorporating ESG metrics into incentives within the S&P 500. For purposes of this analysis, we have categorized these design approaches into four groups:

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Director Pay Levels Were Flat Among the 100 Largest US Companies

Dan Laddin and Matt Vnuk are partners and Whitney Cook is an associate at Compensation Advisory Partners, LLC (CAP). This post is based on their CAP memorandum.

Each year CAP analyzes non-employee director compensation programs among the 100 largest US public companies. These companies are trendsetters and can provide early insights into evolving pay practices across the broader public company marketplace. This post reflects a summary of pay levels and pay practice trends based on 2021 proxy disclosures.

Key Takeaways

  • Median Total Board Compensation remained flat versus prior year, and 75th percentile Total Board Compensation has remained flat for the past two years
  • During the last year, there were the fewest increases to board cash and/or equity retainers of any year during the last decade, in reaction to the COVID-19 pandemic and related implications
  • Shareholder approved director pay limits that apply to both cash and equity-based compensation (i.e., that apply to total pay) became majority practice in 2020

Looking Ahead

  • Reviews of director pay levels that were delayed during 2020 are again beginning to take place
  • During 2021, companies will continue to be focused on COVID-related external optics, but we do expect to see increases to director pay levels, especially at businesses less impacted by the pandemic. By 2022, we expect that companies will be back on the normal cadence of reviewing and modifying director pay every other year
  • As a result, we expect many companies will contemplate increases to director pay levels during 2021 or 2022, and year-over-year increases to director pay levels will return to historic norms

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SPACs: A New Frontier for Shareholder Activism

Derek Zaba, Kai Haakon E. Liekefett, and Joshua G. DuClos are partners at Sidley Austin LLP. This post is based on their Sidley memorandum, originally published in the Summer 2021 issue of IR Update. 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); and Dancing with Activists by Lucian Bebchuk, Alon Brav, Wei Jiang, and Thomas Keusch (discussed on the Forum here).

Much has been written about the torrent of activity in special purpose acquisition vehicles (SPACs)—a type of “blank check” company.

SPACs raise money in an initial public offering (IPO), which is placed in a trust account to be used for the sole purpose of identifying, acquiring, and merging with a private target company within 18 to 24 months. The culmination of this process is called a “de-SPAC,” which is when the newly combined company becomes a publicly traded entity.

In the process, the formerly private company receives a public listing and a fresh infusion of cash from the SPAC’s trust and/or a concurrent private investment in public equity offering (PIPE), and the SPAC’s sponsor receives a hefty “promote” in the form of equity in the combined entity for putting up a modest amount of working capital funds and facilitating the transaction.

According to Bloomberg, 300 SPACs were launched in the first quarter of 2021 alone, which was more than the approximately 250 launched in 2020 (itself a banner year for SPAC launches that saw three times as many SPAC IPOs as 2019).

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