Monthly Archives: November 2021

Corporate Board Practices in the Russell 3000, S&P 500, and S&P Mid-Cap 400

Matteo Tonello is Managing Director of ESG Research at The Conference Board, Inc. and Paul Hodgson is Senior Advisor to ESGAUGE. This post relates to Corporate Board Practices in the Russell 3000, S&P 500, and S&P MidCap 400: 2021 Edition, an annual benchmarking study and online dashboard published by The Conference Board and ESG data analytics firm ESGAUGE, in collaboration with Debevoise & Plimpton, the KPMG Board Leadership Center, Russell Reynolds Associates, and The John L. Weinberg Center for Corporate Governance at the University of Delaware.

Corporate Board Practices in the Russell 3000, S&P 500, and S&P MidCap 400: 2021 Edition documents corporate governance trends and developments at US publicly traded companies—including information on board composition and diversity, the profile and skill sets of directors, and policies on their election, removal, and retirement. The analysis is based on recently filed proxy statements and complemented by the review of organizational documents (including articles of incorporation, bylaws, corporate governance principles, board committee charters, and other corporate policies made available in the Investor Relations section of companies’ websites).

The project is conducted by The Conference Board and ESG data analytics firm ESGAUGE, in collaboration with Debevoise & Plimpton, the KPMG Board Leadership Center, Russell Reynolds Associates, and the John L. Weinberg Center for Corporate Governance at the University of Delaware.

The following are the key findings and insights.

For the first time in our annual analysis of proxy statements, in 2021 the majority of S&P 500 companies have disclosed the racial (ethnic) makeup of their boards. According to the disclosure available, boards remain overwhelmingly white, with some business sectors disclosing far more racial diversity than others. This is also true for newly elected directors for which demographic information is made public—less than one-fourth of them are non-white. Companies should consider committing to a multi-year board succession plan where the search for strategic skills and expertise is accompanied by a sustained focus on diversity. They should also investigate best practices on the integration of diversity, equity, and inclusion (DEI) metrics into senior executives’ incentive plans, and continue to improve disclosure of board racial and ethnic diversity.

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SEC Modernizes Filing Fee Rules

Ron C. Llewellyn is counsel and Ran Ben-Tzur is partner at Fenwick & West LLP. This post is based on their Fenwick memorandum.

On October 13, 2021, the U.S. Securities and Exchange Commission adopted final rules that amend several fee-bearing forms, schedules, statements and related rules to modernize filing fee disclosure and payment methods for securities transactions. The amendments, which will require each filing fee table and related disclosure to be filed as an exhibit in a structured format, will add options for fee payment via Automated Clearing House (ACH) and debit and credit cards, and eliminate fee payments by paper checks and money orders. The SEC first proposed the amendments on October 24, 2019. These amendments are effective on January 31, 2022, but will be phased in throughout transition periods as further discussed below.

Overview

The amendments will affect rules and forms under the Securities Act of 1933 (Securities Act), the Securities Exchange Act of 1934 (Exchange Act) and the Investment Company Act of 1940 (Investment Company Act). In particular, the following rules and forms will be amended:

  • Securities Act
    • Rules 111, 415, 424, 456, 457, 473
    • Forms S-1, S-3, S-8, S-11, N-14, S-4, F-1, F-3, F-4, F-10, SF-1, SF-3
  • Exchange Act
    • Rules 0-9, 0-11, 13e-1
    • Schedules 13E-3, 13E-4F, 14A, 14C, TO, 14D-1F
  • Investment Company Act
    • Rule 0-8
    • Forms 24F-2 and N-2

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Remarks by Chair Gensler at the Securities Enforcement Forum

Gary Gensler is Chair of the U.S. Securities and Exchange Commission. This post is based on his recent remarks at the Securities Enforcement Forum. 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.

Thank you for having me here today. As is customary, I’d like to note that my views are my own, and I’m not speaking on behalf of the Commission or SEC staff.

In 1934, in his first speech as the SEC’s first Chair, Joseph Kennedy told the National Press Club, “The Commission will make war without quarter on any who sell securities by fraud or misrepresentation.” [1]

Though much has changed since then—technology, financial products, and business models are always evolving—Kennedy’s words still ring true today.

Enforcement is one of the fundamental pillars in achieving the SEC’s mission.

One pillar is the policy framework—the laws set by Congress, and the rules enacted by the Commission.

But you’ve also got to examine against those laws and rules, and enforce those rules. That oversight and enforcement are the other two critical pillars.

Think about a football game without referees. Teams, without fear of penalties, start to break the rules. The game isn’t fair, and maybe after a few minutes, it isn’t fun to watch.

Without examination against and enforcement of our rules and laws, we can’t instill the trust necessary for our markets to thrive. Stamping out fraud, manipulation, and abuse lowers risk in the system. It protects investors and reduces the cost of capital. The whole economy benefits from that.

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Quantifying the High-Frequency Trading “Arms Race”

Matteo Aquilina is a member of the Secretariat at the Financial Stability Board, and a manager at the UK Financial Conduct Authority Economics Department; Eric Budish is the Steven G. Rothmeier Professor of Economics at the University of Chicago Booth School of Business; and Peter O’Neill is a researcher at the UK Financial Conduct Authority Economics Department. This post is based on their recent paper, forthcoming in the Quarterly Journal of Economics.

In the past few decades, financial markets across most major asset classes—equities, futures, treasuries, currencies, options, etc.—have transformed from human beings interacting with each other on trading floors, pits and desks, to computerized trading algorithms interacting with each other in exchange computer servers. On the whole, this transformation from humans to computers has brought clear, measurable improvements to various measures of the cost of trading and liquidity, much as information technology has brought efficiencies to many other sectors of the economy. But this transformation has also brought considerable controversy, particularly around the importance of speed in modern electronic markets.

This study uses a simple new kind of data and a simple new methodology to study the phenomenon at the center of the controversy over speed: latency arbitrage. In words, a latency arbitrage is an arbitrage opportunity that is sufficiently mechanical and obvious that capturing it is primarily a contest in speed. Conceptually, a latency arbitrage is an economic rent from symmetric public information—information that, in principle, is disseminated to the whole market simultaneously and publicly, so should not be a source of arbitrage profits.

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Weekly Roundup: October 29–November 4, 2021


More from:

This roundup contains a collection of the posts published on the Forum during the week of October 29–November 4, 2021.


Carbon Zero and the Board


Racial Equity Audits: A New ESG Initiative


The Current State of Human Capital Disclosure


Common Ownership, Executive Compensation, and Product Market Competition


Speech by Commissioner Roisman on Cybersecurity



ISS’ Annual Policy Survey Results


The State of U.S. Sustainability Reporting


Lucian Bebchuk and the Study of Corporate Governance


SEC Reopens Comment Period for Dodd-Frank Clawback Rule


Endogenous Choice of Stakes Under Common Ownership


Remarks by Chair Gensler Before the SIFMA Annual Meeting



Statement by Commissioners Peirce and Roisman on Shareholder Proposals


Remarks by Chair Gensler Before the Asset Management Advisory Committee

Gary Gensler is Chair of the U.S. Securities and Exchange Commission. This post is based on his recent remarks before the Asset Management Advisory Committee. 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.

Thank you. It is good to be with this Committee again.

I’d like to thank the members. For the past two years, you have studied and advised the Commission on a number of important issues, on top of your other responsibilities and roles.

This Committee was formed shortly before COVID-19 came to our shores. This Committee’s first recommendations had to do with the impact of the pandemic on our markets, including market structure, particularly on fixed income markets, and on the SEC’s operations, such as encouraging more electronic disclosure.

Recent recommendations tackled the important topic of diversity in the asset management industry, focusing on the underrepresentation of women and people of color in this sector.

Additionally, you offered insights into the growing field of Environmental, Social, and Governance (ESG) assets, around which we have work streams related to issuers and asset managers.

I thought I would take this opportunity to discuss the SEC’s work related to the asset management sector.

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Statement by Commissioners Peirce and Roisman on Shareholder Proposals

Hester M. Peirce and Elad L. Roisman are Commissioners at the U.S. Securities and Exchange Commission. This post is based on their recent public statement. The views expressed in this post are those of Ms. Peirce and Mr. Roisman and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Today the Division of Corporation Finance issued a new staff legal bulletin relating to shareholder proposals, which rescinded the last three bulletins and indicated that the staff may no longer agree that certain proposals are excludable from proxy statements under Rule 14a-8. [1] Notably, the Bulletin singles out as likely no longer excludable proposals “squarely raising human capital management issues with a broad societal impact” and proposals that “request[] companies adopt timeframes or targets to address climate change.” While it is disappointing to see these two topics highlighted for special treatment, it is not altogether surprising given current SEC priorities. Today’s Bulletin furthers the recent trend of erasing previous Commissions’ and staffs’ work and replacing it with the current Commission’s flavor-of-the-day regulatory approach.

The rationale for today’s action is a bit of a mystery. First while the bulletin lays out a case for repealing the last three bulletins, it does not fill the void left by their repeal. Specifically, it fails to address the problem those three bulletins were trying to solve, whether it still exists, and how it will be addressed going forward. For example, with respect to the significance analysis under Rule 14a-8(i)(7), the rescinded bulletins were designed to help issuers determine whether a proposal dealing with the company’s ordinary business operations is nevertheless not excludable because it raises a policy issue so significant that it transcends the day-to-day business matters of the company. With these bulletins now rescinded, how should these proposals be analyzed? In rejecting a company-specific approach in evaluating significance, the Bulletin states that the staff “will instead focus on the social policy significance of the issue that is the subject of the shareholder proposal” and “consider whether the proposal raises issues with a broad societal impact.” The Bulletin assures us that such a focus is realigned with the standard articulated by the Commission in 1976 and 1998, but the practical effect is unclear. Is the analysis simply a question of whether the proposal involves any socially significant issue? What criteria, timeframe, or proof support a finding that a topic is socially significant or has a broad societal impact? The new bulletin does not say.

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Mandating Disclosure of Climate-Related Financial Risk

Alexander T. Song is a Legal Fellow at the Institute for Policy Integrity, NYU School of Law. This post is based on a recent paper, forthcoming in the NYU Journal of Legislation and Public Policy, authored by Mr. Song; Madison Condon, Associate Professor at Boston University School of Law and an Affiliated Scholar at the Institute for Policy Integrity; Sarah Ladin, Attorney at the Institute for Policy Integrity; Jack Lienke, Regulatory Policy Director of the Institute for Policy Integrity and adjunct professor at NYU School of Law; and Michael Panfil, Lead Counsel and Director of Climate Risk Strategies at Environmental Defense Fund, and lecturer at American University, Washington College of Law, and Howard University School of Law.

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).

Climate change will profoundly affect the institutions that undergird modern society and will challenge almost every industry and economic sector. Under certain warming scenarios, our best available estimates suggest that climate change will impose tens of trillions of dollars in economic costs over the next 80 years.

In this unprecedented environment, companies and their investors will need to mitigate their potential losses by preparing for the physical and transition risks associated with climate change. Physical risks include, for example, the costs of repairing damaged facilities after extreme weather events, as well as the increased insurance premiums for the facility following repair. Transition risks are associated with the actions society takes in response to those physical risks—actions like taxing carbon emissions, developing green technology, or increasing demand for sustainable goods and services.

While some of these physical and transition risks are increasingly foreseeable, many publicly traded companies still do not disclose sufficient information about the threats that climate change poses to their operations. Insufficient disclosure persists even though (1) the SEC’s Regulation S-K and Regulation S-X require corporations to disclose material financial information to their investors; (2) a 2010 SEC guidance document clarified that climate damages “can have a material effect on a registrant’s business and operations”; and (3) major investors—including behemoths like BlackRock and State Street Global Advisors—have confirmed that climate risks are material to their investment portfolios.

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Remarks by Chair Gensler Before the SIFMA Annual Meeting

Gary Gensler is Chair of the U.S. Securities and Exchange Commission. This post is based on his recent remarks before the Securities Industry and Financial Markets Association annual meeting. 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.

Thank you. It’s good to be here at the annual meeting of the Securities Industry and Financial Markets Association — what we all know as SIFMA. John [Rogers], I look forward to your questions.

As is customary, I will note that I am not speaking on behalf of the Commission or SEC staff.

The SEC has a three-part mission: protecting investors, facilitating capital formation, and maintaining that which is in the middle: fair, orderly, and efficient markets.

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]

Further, U.S. market participants rely on capital markets more than market participants in any other country.

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]

We can’t take our leadership in capital markets for granted, though. New financial technologies continue to change the face of finance for investors and issuers. More retail investors than ever are accessing our markets. Other countries are developing deep, competitive capital markets as well.

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Endogenous Choice of Stakes Under Common Ownership

Scott Hemphill is Moses H. Grossman Professor of Law and Marcel Kahan is George T. Lowy Professor of Law at NYU School of Law. This post is based on their recent paper. Related research from the Program on Corporate Governance includes Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy by Lucian Bebchuk and Scott Hirst (discussed on the forum here); New Evidence, Proofs, and Legal Theories on Horizontal Shareholding by Einer Elhauge (discussed on the Forum here); and Horizontal Shareholding by Einer Elhauge (discussed on the Forum here).

A common concentrated owner (CCO) holds stakes in competing firms. Antitrust theorists have long posited that the interests of a CCO differ from those of an owner of a single firm. Economists have developed models in which, depending on its ownership structure, a firm in a noncompetitive industry maximizes a weighted average of its own and its competitors’ profits. Specifically, greater CCO ownership induces a firm to place a greater weight on competitor profits. At the same time, greater ownership by concentrated owners who do not hold stakes in competing firms—noncommon concentrated owners, or NCOs—reduces that weight. Recent empirical work has found that an increased level of CCO ownership is associated with anticompetitive effects. Other papers find no effect. This literature has generated a heated debate about whether common ownership in noncompetitive industries is compatible with the antitrust laws and whether it should be restricted.

Thus far, the literature has focused on how a particular ownership structure affects firm behavior and outcomes. The ownership structure is taken as given. However, if ownership structure affects firm value, then we would expect owners to alter their stakes in light of this anticipated effect.

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