Yearly Archives: 2021

Don’t Wait to Prepare for an Emergency Succession

James M. Citrin and Cassandra Frangos are Consultants and Melissa Stone is Director of Development and Operations at Spencer Stuart. This post is based on a Spencer Stuart memorandum by Mr. Citrin, Ms. Frangos, Ms. Stone, and Joseph M. Kopsick.

Most boards address emergency CEO succession in some way, even if it’s just discussing the “name in the envelope” who could be quickly tapped for an interim period of time. The COVID-19 crisis underscored the importance of having a robust, formal emergency succession plan and raised questions about how prepared most organizations really are.

In this post, we highlight best practices for developing an emergency succession plan, including:

  • Defining the criteria and responsibilities of an interim CEO
  • Aligning on the “name in the envelope”
  • Maintaining a view of relevant external talent
  • Codifying the plan

Define the criteria for the interim successor

Boards historically have prioritized continuity and the likely investor reaction when selecting an interim CEO successor—someone who can give investors confidence that the company is in good hands until a permanent successor is selected. Not surprisingly, the most common interim leaders in emergency successions are the board chair, another board director, the CFO, the COO and, occasionally, a division president or general counsel.

In a crisis, the board may prioritize different criteria depending on the context and stakeholder needs: a “culture carrier” or leader with significant followership who can calm the organization and maintain continuity in the short term; an executive who is able to rally the leadership team; a highly effective communicator; or the CFO, who is closest to the financials and may be best positioned to manage through a cash crunch.

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2021 Proxy Season Trends: Executive Compensation

Pamela Marcogliese and Lori Goodman are partners and Elizabeth Bieber is counsel at Freshfields Bruckhaus Deringer LLP. This post is based on a Freshfields memorandum by Ms. Marcogliese, Ms. Goodman, Ms. Bieber, and Maj Vaseghi. 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).

Average support remains high in 2021, currently approximately 90.8% at Russell 3000 companies, reflecting similar averages compared to 2020 in the same period, despite a higher failure rate in 2021 to date compared to 2020 (see below)

Proxy advisory firms continue to have a significant impact on vote results, although current ISS “against rates” are slightly lower in 2021 than in 2020

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Court of Chancery Decision Provides Guidance for Drafting MAE Clauses

Gail Weinstein is senior counsel, and Philip Richter and Steven Epstein are partners at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Ms. Weinstein, Mr. Richter, Mr. Epstein, Brian T. Mangino, Randi Lally, and Erica Jaffe, and is part of the Delaware law series; links to other posts in the series are available here.

In Bardy Diagnostics v. Hill-Rom (July 9, 2022), the Delaware Court of Chancery followed its almost invariable pattern of finding that an event arising between signing and closing of a merger agreement did not constitute a Material Adverse Effect that permitted the buyer to terminate the deal.

The decision is noteworthy for the court’s award of the remedy of prejudgment interest, running from the time the merger would have closed. The court also ordered specific performance, but denied the target’s request for other compensatory damages. Most importantly, the decision provides insight into the court’s interpretation of the drafting of a number of MAE provisions (as discussed below).

In this case, the event was an unexpected and dramatic reduction in the Medicare reimbursement rate for the target company’s sole product (a patch used to detect heart arrhythmias and related services). The court, following Delaware’s traditional approach to evaluating whether an MAE occurred, concluded that the effects of the event did not have “durational significance”; and that, in any event, the language of the MAE provision in the merger agreement excluded this event from constituting an MAE. The court therefore ordered the buyer to close.

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Weekly Roundup: August 6–12, 2021


More from:

This roundup contains a collection of the posts published on the Forum during the week of August 6–12, 2021.

SEC Brings SPAC Enforcement Action and Signals More to Come




Statement by Commissioners Lee and Crenshaw on Nasdaq’s Diversity Proposals


The Impact of DOJ’s Charges Against a Former Trump Advisor on Companies Working with Foreign Clients


The Missing Element of Private Equity


SPAC-Related Litigation Risks and Mitigation Strategies





Are Enhanced Index Funds Enhanced?


Public Company Guide—Planning for Shareholder Engagement


The SEC’s Cyber Priorities and Four Ways for Companies to Reduce Regulatory Risk


Early SEC Enforcement Trends from Chairman Gensler’s First 100 Days


2021 Proxy Season Review: Shareholder Proposals on Environmental Matters



2021 Proxy Season Trends: Proxy Advisory Firms


Moving the Needle on DEI in the Workplace

Moving the Needle on DEI in the Workplace

Michael Delikat is Partner, Tierra D. Piens is Managing Associate, and Rudi-Ann Miller is a Summer Associate at Orrick, Herrington & Sutcliffe LLP. This post is based on their Orrick 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); 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).

In the wake of the Black Lives Matter Movement of 2020 and the resulting national conversation on race and equity, many companies have taken meaningful steps to achieve greater diversity, equity, and inclusion (DEI) in their respective workplaces. The technology industry, in particular, has made several notable strides towards these laudable goals.

We analyzed publicly available DEI information from 25 of the top tech companies [1] in the United States and found several approaches to driving holistic and lasting change in workplaces across all industries. We have highlighted the best practices we have seen as advisors to many companies looking to make progress in DEI while, at the same time, taking steps to minimize legal issues that can arise from some initiatives. These best practices include hiring a Global Head of Diversity, implementing a diverse slate hiring protocol, and creating and supporting employee resource groups (ERGs).

Best Practice 1: Hire a Global Head of Diversity

We canvassed public records and confirmed that 23 of the 25 leading tech companies now have a Global Head of Diversity role—also designated in some companies as the Chief Diversity Officer or Diversity Director. For many companies, hiring a Global Head of Diversity is a helpful tool in the arsenal of DEI strategies. Heads of Diversity lay the foundation for internal and external DEI initiatives, including defining and measuring success, allocating resources, securing partnerships, and pushing the DEI agenda forward. The existence of such a role also sends an important message to current and prospective employees, clients, shareholders, and investors about the company’s values.

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2021 Proxy Season Trends: Proxy Advisory Firms

Pamela Marcogliese and Lori Goodman are partners and Elizabeth Bieber is counsel at Freshfields Bruckhaus Deringer LLP. This post is based on a Freshfields memorandum by Ms. Marcogliese, Ms. Goodman, Ms. Bieber, and Maj Vaseghi.

ISS 2021 Proxy Voting Guidelines

ISS’ revised polices for the 2021 proxy season indicate a significant focus on social and environmental issues, the importance of board diversity, shareholder litigation rights and COVID-19 recovery era policies

Social and Environmental Issues

  • Governance failures – Material E&S Risk Oversight: Recommend withhold votes against directors, committees or the entire board for E&S issues (including climate change) which constitute a material risk oversight failure
  • Mandatory arbitration: Recommend voting for shareholder proposals requesting reports about a company’s use of mandatory arbitration in employment claims on a case-by-case basis, taking into account the company’s existing policies, public standing with respect to any controversies and the company’s disclosure of policies compared to its peers
  • Sexual harassment: Recommend a case-by-case analysis of shareholder proposals requesting reports on the actions taken by a company to prevent sexual harassment or on the risks posed by the company’s failure to take such actions, taking into account the company’s existing policies, any recent controversies and the company’s disclosure of policies compared to its peers

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A Deeper Dive Into Talent Management: The New Board Imperative

Paul DeNicola is Principal at the Governance Insights Center, PricewaterhouseCoopers LLP. This post is based on his PwC memorandum.

As companies plan for a post-pandemic economy, and continue tackling social issues, they must also contend with rapid business transformation. Talent management is more critical than ever—and so is director oversight.

Corporate directors have traditionally focused their talent management efforts on the C-suite, leaving oversight of the broader workforce to senior executives. But the pandemic, pressure to advance diversity and inclusion efforts, and the astonishing pace of business and digital change have made it critical for boards to provide greater oversight of talent management at multiple levels of the organization.

Rethinking talent

Providing oversight of a company’s top talent has long been a core responsibility of corporate boards. They play a critical role in hiring and firing the CEO, evaluating the performance of top executives, developing leadership succession plans, and ensuring their companies have a robust pipeline of talent to execute company strategy.

Traditionally, directors have focused their talent management efforts on the C-suite, leaving oversight of the broader workforce to senior executives. But many boards have come to understand that a strategy is only as good as a company’s ability to execute it. And strong execution requires talented people at all levels of the organization—particularly when most companies are reinventing themselves amid widespread disruption and planning for a post-pandemic world.

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2021 Proxy Season Review: Shareholder Proposals on Environmental Matters

Marc Treviño is partner and June M. Hu and Joshua L. Levin are associates at Sullivan & Cromwell LLP. This post is based on a Sullivan & Cromwell memorandum by Mr. Treviño, Ms. Hu, Mr. Levin, Melissa Sawyer, and Elizabeth D. Lombard. 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); and Social Responsibility Resolutions by Scott Hirst (discussed on the Forum here).

Shareholder proposals submitted on environmental matters and, in particular, climate-related proposals have increased for the second consecutive year, exceeding even the number of proposals submitted in 2018 following former President Trump’s withdrawal from the Paris Agreement in 2017 (115 in 2021 compared to 110 in 2018). The substantial majority (85) of these proposals were climate-related.

1. Increased Withdrawal Rate

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Early SEC Enforcement Trends from Chairman Gensler’s First 100 Days

Randall R. Lee is partner, and Julianne Landsvik and Michael Welsh are associates at Cooley LLP. This post is based on a Cooley memorandum by Mr. Lee, Ms. Landsvik, Mr. Welsh, Patrick Gibbs, Luke Cadigan, and Walker Newell.

Gary Gensler was sworn in as chair of the Securities and Exchange Commission on April 17, 2021. Chairman Gensler has promised to strengthen transparency and accountability in the financial markets. Under Chairman Gensler, we expect the SEC’s Division of Enforcement—led by Gurbir Grewal, who began work at the agency on July 26—to be better resourced, highly active and more aggressive. In this post, we review enforcement activity from the first 100 days of Chairman Gensler’s term to identify preliminary indications of trends we can expect as the new regime’s enforcement initiatives gain steam.

Enforcement scrutiny of SPACs

Over the past year, US securities markets have experienced an exponential rise in the use of special purpose acquisition companies (SPACs) as an alternative to traditional initial public offerings and direct listings. SEC staff members have published a stream of investor alerts, bulletins and other warnings, which are summarized here, about potential disclosure issues surrounding SPACs. Although the number of SPAC registrants has recently slowed, Chairman Gensler and SEC staff have continued to voice concerns about the SPAC boom.

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The SEC’s Cyber Priorities and Four Ways for Companies to Reduce Regulatory Risk

Avi Gesser is partner, Johanna Skrzypczyk is counsel, and Suchita Mandavilli Brundage is an associate at Debevoise & Plimpton LLP. This post is based on a Debevoise memorandum by Mr. Gesser, Ms. Skrzypczyk, Ms. Brundage, and Katie McCarty.

Earlier this year, we wrote about the SEC’s cybersecurity priorities. Since then, the SEC announced a settlement with First American Title Insurance and Services (“First American”) for violating Rule 13a-15(a) of the Exchange Act, and issued a voluntary request for information to a number of companies in connection with the SolarWinds cyber attack (“Voluntary Request”). In this post, we discuss these developments and provide an update on ways that companies can reduce their cybersecurity regulatory risk.

The First American Settlement

According to the SEC’s order, First American’s security personnel identified a security vulnerability exposing over 800 million document images during a penetration test in January 2019. Some of those exposed documents contained sensitive personal data such as customer Social Security numbers and financial information dating back to 2003. The vulnerability was not remediated or reported to information security managers according to First American’s policies. In May 2019, a cybersecurity journalist notified First American of the same vulnerability and First American issued a press statement and submitted an 8-K. According to the order, First American senior executives responsible for these public statements were not made aware that the company’s IT personnel had previously identified this vulnerability and failed to fix it, and therefore “lacked certain information to fully evaluate the company’s cybersecurity responsiveness and the magnitude of the risk” posed by the vulnerability at the time of the company’s disclosures.

The SEC accordingly found that First American failed to maintain disclosure controls and procedures designed to ensure that all available relevant information concerning the vulnerability was analyzed for disclosure in the company’s SEC filings. As part of this settlement, First American agreed to a cease-and-desist order and to pay a $487,616 penalty.

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