Yearly Archives: 2021

Weekly Roundup: September 17–23, 2021


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This roundup contains a collection of the posts published on the Forum during the week of September 17–23, 2021.

Why CEO Option Compensation Can be a Bad Option for Shareholders: Evidence from Major Customer Relationships


Vermont’s Fossil Fuel Suit Underscores Climate-Change Pressures Faced by U.S. Companies


ESG in 2021 So Far: An Update


Board Practices Quarterly: The Outspoken Corporation


How the Best Boards Approach CEO Succession Planning




Revisiting Whistleblower Response Procedures


SPACs: Insider IPOs


Navigating ESG Disclosure Regulation for US Public Companies


SEC Cyber Enforcement Actions: Lessons for Private Fund Managers



How Private Equity-Backed Companies Can Move the Needle on Sustainability



The General Counsel View of ESG Risk


The Role of the CEO in Mergers and Acquisitions

The Role of the CEO in Mergers and Acquisitions

PJ Neal leads Russell Reynolds Associates’ Center for Leadership Insight. This post is based on his Russell Reynolds memorandum. Related research from the Program on Corporate Governance includes Are M&A Contract Clauses Value Relevant to Target and Bidder Shareholders? by John C. Coates, Darius Palia, and Ge Wu (discussed on the Forum here); and The New Look of Deal Protection by Fernan Restrepo and Guhan Subramanian (discussed on the Forum here).

The last 18 months will likely go down as one of the most disruptive—and likely most difficult—periods leaders will face in their careers.

Yet despite all the challenges this year, there are signs of an improving economy. Unemployment numbers are decreasing after a substantial increase earlier this year. Many companies are increasing output. And mergers and acquisitions are bouncing back—perhaps not surprisingly, given the number of companies which have become attractive targets as a result of a challenging operating environment.

In response to the increasing interest in M&A, we wanted to write to CEOs about their role in this, based on advice other CEOs have shared with us after having gone through the process themselves.

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The General Counsel View of ESG Risk

Michael J. Callahan is Professor of the Practice of Law at Stanford Law School; David Larcker is Professor of Accounting at Stanford Graduate School of Business; and Brian Tayan is a researcher with the Corporate Governance Research Initiative at Stanford Graduate School of Business. This post is based on their recent paper. 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).

We recently published a paper on SSRN, The General Counsel View of ESG Risk, that examines the view that general counsel and senior in-house counsel have of ESG.

ESG—Environmental, Social, and Governance matters—have become a central focus of governance practitioners in recent years. This trend, however, has not come without controversy and confusion, including the definition and scope of ESG and the impact of ESG on corporate performance, investment, and disclosure.

Proponents of ESG argue that increased investment in environmental and social activity contributes to long-term success of an organization through the mitigation of social ills that pose long-term risk. They contend that investment in social objectives reduces the risk profile of the company by addressing externalities before they manifest themselves, thereby lowering long-term costs to both shareholders and stakeholders. By aligning corporate practices with desirable social objectives, the company will create profits that are larger, more sustainable, and more equitably distributed among all stakeholders—shareholders, employees, and the community alike. Through increased disclosure, shareholders can monitor corporate progress and hold management accountable for outcomes.

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Delaware Supreme Court Eliminates “Dual-Natured” Direct and Derivative Claim

William Savitt and Ryan A. McLeod, are partners at Wachtell, Lipton, Rosen & Katz. This post is based on their Wachtell memorandum, and is part of the Delaware law series; links to other posts in the series are available here.

In a carefully reasoned decision, the Delaware Supreme Court this week overruled a 15-year precedent that had permitted minority stockholders to pursue classically derivative dilution claims directly against controlling stockholders. Brookfield Asset Management, Inc. v. Rosson, No. 406, 2020 (Del. Sept. 20, 2021).

The case concerned a private placement of TerraForm Power’s common stock to its controlling stockholder, Brookfield Asset Management, which TerraForm’s minority stockholders alleged was underpriced and dilutive. TerraForm was thereafter merged out of existence. Defendants moved to dismiss, arguing that the claims were derivative and that plaintiffs’ standing to prosecute derivative claims was extinguished by the merger. The Court of Chancery recognized that such “overpayment” claims are generally considered derivative, but nevertheless sustained the complaint on the basis of a 2006 decision that had concluded such claims were both derivative and direct where the transaction allegedly benefitted a controlling stockholder at the expense of the minority.

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How Private Equity-Backed Companies Can Move the Needle on Sustainability

Mark Adams co-leads Russell Reynolds Associates’ Private Equity practice; Joy Tan is a member of Russell Reynolds Associates’ Center for Leadership Insight; and Emily Taylor co-leads Russell Reynolds Associates’ Private Equity practice. This post is based on a Russell Reynolds memorandum by Mr. Adams, Ms. Tan, Ms. Taylor, and Alix Stuart. 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).

Sustainability commitments at the private equity firm level are not translating into portfolio company businesses

Private equity firms are making highly visible commitments to address the challenge of sustainability. Market-leading firms, such as The Carlyle Group, EQT, and TPG Capital, now produce sustainability reports and have dedicated executives overseeing sustainability initiatives and embedding sustainability throughout the deal cycle. Other firms are even making debt funding contingent on hitting certain ESG targets. [1] This comes in response to pressure from society at large, but also from fund investors—88% of limited partners use ESG performance indicators when making investment decisions, according to recent research by Bain & Company. [2]

Despite these public commitments, PE-backed portfolio companies do not appear to be making consistent progress toward sustainability goals. According to the Russell Reynolds Associates 2021 Global Leadership Monitor (GLM), which surveyed nearly 200 portfolio company CEOs, C-suite leaders and next-generation executives, only 44% believe that their executive leadership teams are effectively embracing opportunities for ESG, compared to 67% of public company executives. This suggests that good intentions are not yet translating into action for portfolio companies.

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The Effects of Going Public on Firm Performance and Commercialization Strategy: Evidence from International IPOs

Gordon M. Phillips is Laurence F. Whittemore Professor of Business Administration at Dartmouth College Tuck School of Business. This post is based on a recent paper by Mr. Phillips; Borja Larrain, Associate Professor of Finance at the Pontificia Universidad Católica de Chile; Giorgo Sertsios, Sheldon B. Lubar Associate Professor of Finance at the University of Wisconsin Milwaukee Lubar School of Business; and Francisco Urzúa, City University of London.

Going public is a key decision for many firms. Whether or not going public is good for firms has been called into question by authors and the press who have written that firms after they go public may be myopic as the public markets may cause firms to suboptimally focus on the short-term at the expense of the long term. We raise an alternative perspective and examine whether going public may be optimally be associated with a change in strategy to raise funds for commercialization and also to focus on increasing profitability. We examine firms in 16 countries around the world that file for IPOs using a sample of 3,400 firms. For a benchmark for IPO firms, we use firms that file for an IPO but withdraw and do not complete their IPO. For all these firms, our data contains pre- and post-IPO-attempt information irrespective of whether firms complete or withdraw their IPO. In particular, the post-withdrawal profitability of private firms has not been previously considered. We also build unique measures of commercialization decisions for both public and private firms.

Explanations for why firms go public include diversification and liquidity for previous owners, as well as to raise capital for expansion. There are conflicting benefits and costs of going public. There is the positive effect of additional capital that allows the firm to undertake new investment opportunities. There are also potential agency costs as going public changes concentrated ownership to dispersed ownership where the incentives of managers and investors can diverge, or managers faced with stock market pressure can become myopic. The stylized fact in the literature so far is that, on average, profitability falls after IPOs, which seems to speak against the benefits of public status. In addition, recent evidence shows that IPO firms have lower patenting rates and fewer citations after going public. These results could be interpreted as evidence of short-termism or agency costs of being public. However, being public may might alternatively be associated with an optimal change in strategy to raise funds for commercialization and to focus on increasing profitability. (A recent WSJ article on UBER raises this possibility saying “Mr. Khosrowshahi (CEO) has moved to restructure Uber to deliver on a promise to make the company profitable, … The company has promised to be profitable on an adjusted basis before interest, taxes, depreciation and amortization by the end of next year (2021).” (Wall Street Journal, December 7, 2020)). READ MORE »

SEC Cyber Enforcement Actions: Lessons for Private Fund Managers

Jason Daniel is partner, Jenny Walters is senior practice attorney and Natasha Kohne is partner at Akin Gump Strauss Hauer & Feld LLP. This post is based on their Akin Gump memorandum.

On August 30, 2021, the Securities and Exchange Commission announced three enforcement actions against registered investment advisers for alleged cybersecurity failures involving cloud-based email systems. All three actions (which were settled) imposed six-figure penalties on the advisers, despite the Staff’s acknowledgement that none of the actions resulted in any unauthorized trades or fund transfers to unauthorized parties for any client accounts and despite the relatively small number of clients involved.

These three enforcement actions are just the latest example of the SEC’s focus on cybersecurity for the past several years. Since 2015, the agency and its staff have issued risk alerts, brought enforcement actions and included cybersecurity as a stated priority examination area. These actions illustrate that cybersecurity responsibilities are, without doubt, part and parcel of an investment adviser’s overall duties, including the obligations under Regulation S-P to adopt “written policies and procedures that address administrative, technical and physical safeguards for the protection of customer records and information.”

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Navigating ESG Disclosure Regulation for US Public Companies

Thomas Singer is a Principal Researcher in the ESG Center at The Conference Board, Inc. This post is based on his Conference Board memorandum. 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).

Companies traditionally communicate their sustainability activities to stakeholders through large, comprehensive reports, often running more than 100 pages, that go by a number of different names: Corporate Social Responsibility (CSR), Environmental, Social & Governance (ESG), or Sustainability. Almost all S&P 500 companies issue these reports, indicating that sustainability storytelling is now mainstream and expected of large US companies. In addition, companies increasingly customize information on their sustainability initiatives for rating agencies, business partners, regulators, and others.

Companies face a number of challenges in telling their sustainability stories: 1) deciding what issues are truly important to disclose to convey a clear, cohesive, authentic, and distinctive story about the company; 2) maintaining consistency, ensuring that their story effectively addresses the interests of multiple stakeholders; 3) providing information that’s not only accurate and reliable, but genuinely trusted (including during crises); and 4) managing the ever-evolving—and often frustrating—landscape of sustainability regulations, reporting frameworks, and ESG rating firms—as well as the growing demands by business partners who have their own requests for sustainability-related information.

To tackle some of these challenges, The Conference Board convened a working group of over 300 executives from more than 150 companies who met over the span of 10 months to focus on how companies can tell their sustainability stories authentically, reliably, and effectively to multiple constituencies. [1] Some members of this working group also responded to surveys. This post captures the key insights from the working group sessions as well as the survey results. More detailed guidance can be found in the four accompanying practical guides.

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SPACs: Insider IPOs

Usha R. Rodrigues is M.E. Kilpatrick Professor of Law at the University of Georgia School of Law, and Michael Stegemoller is Harriette L. and Walter G. Lacy, Jr., Chair of Banking and Finance at Baylor University Hankamer School of Business. This post is based on their recent paper.

A special purpose acquisition company (SPAC) is an organizational form that allows a group of managers to raise cash via an initial public offering (IPO) in order to acquire a privately held firm. The SPAC organizers hold the cash raised from the IPO in a trust account, invested in government-backed securities. The acquisition, termed the “de-SPAC,” must occur within a limited time, or else the SPAC shareholders get their money back by redeeming their shares. Indeed, SPAC shareholders can redeem their shares—i.e., claim their money back from the trust account—in two circumstances: 1) if the managers successfully locate a target; or 2) if the SPAC reaches the end of its limited life having failed to negotiate a merger. SPACs thus theoretically offer benefits to both their shareholders and the private targets they acquire. The SPAC’s public shareholders get the first crack at owning a newly public operating company—a chance usually reserved for those lucky enough to have been allocated shares in an IPO—with no downside risk if the transaction falls through or if they simply decide they don’t like the look of the target. SPACs also purportedly offer the private firm—the target—capital raising and access to the liquidity of the public markets via a mechanism cheaper, faster, and less painful than a traditional IPO.

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Revisiting Whistleblower Response Procedures

John F. Savarese, Ralph Levene, and Wayne M. Carlin are partners at Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell memorandum by Mr. Savarese, Mr. Levene, Mr. Carlin, and David B. Anders.

Over the years, we have repeatedly underscored that effective implementation of well-designed procedures for responding to corporate crises, including for properly addressing whistleblower reports, is critically important in light of increased governmental enforcement activity and the value of securing credit for cooperation and remediation efforts. In yet another reminder of why such preparation is so vital, the SEC announced last week that, with its most recent awards, it has paid more than $1 billion to whistleblowers since the inception of its formal whistleblower program in 2012, and that the pace of such awards in 2021 is at record levels. SEC Chair Gary Gensler used this milestone to remind public companies that the Commission’s whistleblower program remains one of the most significant sources of information triggering Staff investigations and to urge potential whistleblowers to continue to come forward with credible information about potential violations of the securities laws.

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