Yearly Archives: 2021

Weekly Roundup: July 23-29, 2021


More from:

This roundup contains a collection of the posts published on the Forum during the week of July 23-29, 2021.



Commenters Weigh in on SEC Climate Disclosures Request for Public Input


Was the Exxon Fight a Bellwether?


SEC Increasingly Turns Focus Toward Strength of Cyber Risk Disclosures


Connecting the Dots: Breaking the ESG Code



Outsourcing Active Ownership in Japan


Stewardship Excellence: ESG Engagement In 2021


Voluntary Environmental and Social Disclosures


Open Access, Interoperability, and the DTCC’s Unexpected Path to Monopoly



Supreme Court’s Impending Decision Concerning Whether PSLRA Discovery Stay Applies in State Court


SEC’s Recent Decision Regarding “Qualified Client” Status



Delaware Supreme Court’s Response to Chancery for Turning Away Stockholder’s Claims



Remarks by Chair Gensler Before the Principles for Responsible Investment “Climate and Global Financial Markets” Webinar

Gary Gensler is Chair of the U.S. Securities and Exchange Commission. This post is based on his recent remarks before the Principles for Responsible Investment “Climate and Global Financial Markets” Webinar. 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, Fiona, for the kind introduction. It’s good to be here with the Principles for Responsible Investment. As is customary, I’d like to note my views are my own, and I’m not speaking on behalf of the Commission or the SEC’s staff.

So what does the SEC have to do with climate?

Before we get to the main event—on climate and finance—I’d like to discuss something a lot of us are watching these days: the Olympics.

In the Olympics, there are rules by which we measure an athlete’s performance.

In gymnastics, for example, the scoring system is both quantitative and qualitative. Athletes are evaluated based on the numeric difficulty of the skills and the judges’ qualitative impression of how well they perform those skills.

This system brings comparability to evaluating the athletes across performances or across generations.

Another thing about the Olympics is that the sports change over the years. If the organizers never made any changes, we’d only get to watch the events from the first modern Olympics back in 1896. [1] No soccer, no basketball, no women’s sports. That wouldn’t exactly reflect where sports are today.

READ MORE »

Does Socially Responsible Investing Change Firm Behavior?

Daniele Macciocchi is Assistant Professor of Accounting at University of Miami Herbert Business School. This post is based on a recent paper by Mr. Macciocchi; Davidson Heath, Assistant Professor of Finance at the University of Utah Eccles School of Business; Roni Michaely, professor of Finance and Entrepreneurship at The University of Hong Kong; and Matthew Ringgenberg, Associate Professor of Finance at the University of Utah Eccles School of Business. 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).

Over the last decade, investors have shown a growing appetite for socially responsible investing (SRI). SRI funds, who advertise that they care about environmental and social issues in addition to maximizing returns, have more than doubled their assets under management. This trend is consistent with the proposals of some academics (e.g. Bérnabou and Tirole (2010) and Hart and Zingales (2017)) that corporations should seek to maximize shareholder welfare and that SRI funds should play a role in addressing environmental and social issues. Whether this approach can increase social welfare is an issue of heated debate in the literature (see, for example, Bebchuk and Tallarita, 2021).

One important aspect of this debate is how effective SRI funds are at bringing about environmental and social change. SRI funds have an official mandate in their prospectus to promote and implement socially responsible objectives. Further, these funds often advertise themselves as having environmental and social goals and in many cases the fund’s name alludes to these goals. As a result, investors in these funds expect them to improve corporate conduct (Levine, 2021). On the other hand, it may be costly for funds to change corporate behavior. First, monitoring corporate conduct is, itself, costly. Second, investing in accordance with environmental and social goals may actually cause the fund to earn lower returns by constraining the fund’s investment universe. These opposing forces make it unclear, ex-ante, what SRI funds actually do. There are several possibilities: (1) SRI funds might choose firms with better environmental and social conduct; (2) SRI funds might actively work to improve the environmental and social conduct of the companies in their portfolio; or (3) SRI funds might greenwash. Put differently, they might advertise and promote themselves as SRI but de facto do nothing (or close to nothing). Most SRI funds claim they both select ‘good’ firms and push firms to consider environmental and social goals more favorably; however, to date, there is little empirical evidence on this.

READ MORE »

Delaware Supreme Court’s Response to Chancery for Turning Away Stockholder’s Claims

Jason M. Halper and Jared Stanisci are partners and Victor Bieger is an associate at Cadwalader, Wickersham & Taft LLP. This post is based on a Cadwalader memorandum by Mr. Halper, Mr. Stanisci, Mr. Bieger, and Annika Conrad, and is part of the Delaware law series; links to other posts in the series are available here.

Despite being one of the more well-known doctrines in corporate law, the rule articulated in Blasius [1]—that directors who act with the primary purpose of interfering with a stockholder vote must have a compelling justification for their conduct—has received little attention from the Delaware Supreme Court. Delaware’s highest court has not mentioned the Blasius test in over a decade [2] and has not held that a board’s conduct triggered the Blasius test since 2003. [3]

During those intervening years, Blasius has been questioned, diluted, and declared all but subsumed by other doctrines. As one vice chancellor put it, a consensus has taken root that “Blasius ‘ main role, to the extent it has one, is as a specific iteration of the intermediate standard of review laid out in Unocal.” [4]

That view of Blasius may change with the Delaware Supreme Court’s recent decision in Coster v. UIP Companies, [5] which sent a case back to the Court of Chancery for giving Blasius short shrift. Coster arose out of a dispute between the two 50% owners of a real estate investment company. After the two stockholders deadlocked on a director election, one of the stockholders—who was already on the board—proposed a dilutive stock sale to one of his fellow incumbent directors, which the board ultimately approved. The stock sale diluted the outside stockholder’s shares below 50%, breaking the deadlock.

READ MORE »

Managing ESG Data and Rating Risk

Anna Hirai is Co-Head of ESG Research and Andrew Brady is Senior Analyst at SquareWell Partners. This post is based on their SquareWell 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).

I. Introduction

Assets in sustainable funds hit a record high of USD 1,258 billion as of the end of September 2020, with Europe surpassing the USD 1 trillion mark according to Morningstar’s research. The increased integration of Environmental, Social and Governance (ESG) factors into investment decision-making, whether it be for active or passive investment styles, has made the quality and availability of well-structured and digestible data provided by ESG rating and data agencies ever more important.

The growing influence of ESG data and ratings on the allocation of capital will undoubtedly bring with it increased scrutiny. Two main areas that have drawn media attention and investor criticism towards ESG ratings providers are: (1) their focus on past performance and lack of predictive value over future performance; and (2) the sometimes-diverging opinions of ESG ratings providers for the same
company.

The lack of global reporting standards and agreement on what should be deemed as material for each sector has led to ESG data and ratings providers each adopting their own methodologies and processes, making it difficult for companies to manage their narrative on sustainability and determine
how best to allocate internal resources regarding sustainability reporting. Further complicating the landscape for companies is the fact that a growing number of investors are developing their own ESG ratings by leveraging multiple data sources.

Given the increasing importance of ESG data and ratings, for this Progress Group SquareWell Partners (“SquareWell”) interviewed representatives from companies, institutional investors, ESG ratings and data providers, and academia. We have split the Progress Group report into two sections
where we provide: (1) an overview of the ESG data and ratings landscape; and (2) key takeaways for companies to navigate this increasingly complex market force.

READ MORE »

SEC’s Recent Decision Regarding “Qualified Client” Status

David Blass and Michael Wolitzer are partners and Allison Bernbach is senior counsel at Simpson Thacher & Bartlett LLP. This post is based on a Simpson Thacher memorandum by Mr. Blass, Mr. Wolitzer, Ms. Bernbach, Manny Halberstam and Radhika Kshatriya.

The U.S. Securities and Exchange Commission recently issued an Order raising the “net worth test” from $2.1 million to $2.2 million and raising the “assets under management test” from $1 million to $1.1 million for purposes of the “qualified client” definition in Rule 205-3 under the Investment Advisers Act of 1940. The new thresholds are effective beginning August 16, 2021, and registered investment advisers charging performance-based compensation should timely revise their fund or client documentation accordingly.

To qualify as a “qualified client” on or after the August 16, 2021 effective date, a natural person or company must:

  1. have at least $1.1 million of assets under management with the adviser immediately after entering into the investment advisory contract with the adviser;
  2. have a net worth (together, in the case of a client who is a natural person, with assets held jointly with a spouse) of more than $2.2 million (excluding the value of such natural person’s primary residence and indebtedness secured by such residence) immediately prior to entering into the contract;
  3. be a “qualified purchaser” as defined in Section 2(a)(51)(A) of the Investment Company Act of 1940; or
  4. be a “knowledgeable employee” of the adviser

READ MORE »

Supreme Court’s Impending Decision Concerning Whether PSLRA Discovery Stay Applies in State Court

Andrew Clubok, Melissa Sherry, and Gavin Masuda are partners at Latham & Watkins LLP. This post is based on a Latham memorandum by Mr. Clubok, Ms. Sherry, Mr. Masuda, Roman Martinez, Elizabeth Deeley, and Joseph Hansen.

Key Points:

  • While federal district courts have consistently applied the Private Securities Litigation Reform Act (PSLRA) automatic stay to halt discovery until a determination that the complaint states a viable claim for relief, state trial courts have been divided as to whether that stay applies to actions filed in state court.
  • If the Supreme Court rules in favor of petitioners, securities plaintiffs will not be able to use state court as an end-run to impose discovery on defendants before stating a viable claim for relief.
  • The scope of the PSLRA discovery stay has far-reaching implications for public companies and financial institutions that underwrite IPOs, which have been subjected to a wave of parallel federal-state securities litigation in recent years.

On July 2, 2021, the US Supreme Court granted certiorari in Pivotal Software, Inc. v. Superior Court of California on a critical issue of first impression at the federal appellate level: whether the PSLRA automatic stay of discovery pending a motion to dismiss in Securities Act cases applies to actions filed in state court.

Background

The Securities Act of 1933 provides certain private rights of action for materially false or misleading statements contained in securities registration statements. Principally, under Section 11 of the Securities Act, persons who purchased securities pursuant or traceable to a materially false or misleading registration statement may sue for statutory damages. [1] The Securities Act further provides that certain private actions, including those arising under Section 11, may be brought in either federal or state court. [2]

READ MORE »

Spotlight on Boards and Board Oversight of Business Strategy and Risk Management in a Post-Pandemic World

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 memorandum by Mr. Lipton, Steven A. Rosenblum, Adam O. Emmerich, William Savitt, and Karessa L. Cain.

In order to advise our clients we try to closely follow emerging and changing issues, developments and problems. In reviewing the matters we have been dealing with and the memos we have written in the past two years, we thought it would be helpful to list the high-profile stand-out issues for attention in the C-suite and boardroom that we have considered and discussed in our memos entitled Spotlight on Boards, Some Thoughts for Boards of Directors in 2021, and Risk Management and the Board of Directors.

  1. There is no true post-pandemic world. Viruses mutate at a rate that requires ongoing adjustments to address the situation as it develops. The pandemic experience will result in demand for major changes in all aspects of healthcare.
  2. The demand for inclusive capitalism continues to grow with greater demands for inclusion, diversity, equality, and social and racial justice.
  3. Climate change is likely to require even more substantial changes than presently recognized, as will other sustainability and long-term growth objectives.

READ MORE »

Open Access, Interoperability, and the DTCC’s Unexpected Path to Monopoly

Dan Awrey is Professor of Law at Cornell Law School, and Joshua C. Macey is Assistant Professor of Law at University of Chicago Law School. This post is based on their recent paper.

In markets with significant scale economies and network effects, scholars and policymakers often tout open access and interoperability requirements as superior to both regulated monopoly and the break-up of dominant firms. In theory, by compelling firms to coordinate to develop common infrastructure, regulators can use these requirements to replicate scale and network economies without leaving markets vulnerable to monopoly power. Examples of successful coordination include the provision of electricity, intermodal transportation, and credit card networks.

This paper analyzes the history of U.S. securities clearinghouses and depositories in order to offer a significant qualification to this received wisdom. This history demonstrates that open access and interoperability requirements can actually serve as instruments by which dominant firms obtain and entrench their monopoly power. Specifically, by imposing high fixed costs to connect to common infrastructure, allowing dominant firms to dictate the direction and pace of innovation and investment, and reducing the scope for product differentiation, these requirements can prevent smaller firms from competing with their larger rivals. In these ways, open access and interoperability can actually exacerbate the very problems that they were designed to address.

Fifty years ago, American securities markets were supported by a number of regional clearinghouses and depositories, each connected to a regional stock exchange. Today, a single firm—the National Securities Clearing Corporation (NSCC)—is the only remaining clearinghouse, while another—the Depository Trust Corporation (DTC)—is the only remaining depository. DTCC owns both NSCC and DTC.

READ MORE »

Voluntary Environmental and Social Disclosures

Marc S. Gerber is partner, Caroline S. Kim is counsel, and Jeongu Gim is an associate at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on a Skadden memorandum by Mr. Gerber, Ms. Kim, Mr. Gim, Randi Val Morrison, and Yafit Cohn. 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).

Companies are increasingly providing disclosure about their current efforts and future commitments on environmental and social (E&S) matters. [1] The percentage of S&P 500 companies publishing sustainability or corporate social responsibility (CSR) reports that address E&S matters continues to grow, reaching 90% in 2019. [2] Similarly, one study found that, in 2020, 98% of the top 100 companies by revenue in the United States reported on their sustainability efforts. [3] Consistent with this trend, 78% of companies responding to a survey by the Society for Corporate Governance in January 2021 reported publicly disclosing E&S goals, metrics or information, [4] up from 67% of respondents in a similar May 2019 survey. [5]

To date, these increased E&S disclosures have been largely voluntary, as companies have responded to requests for this information from investors, interest groups, employees, and other stakeholders. The scope of required E&S disclosures in Securities and Exchange Commission (SEC) filings remains primarily principles- and materiality-based. Recent statements and actions by the SEC and its Staff, however, indicate that the SEC is likely to mandate additional E&S disclosure requirements in the near future. As companies face growing demands for increased voluntary and mandatory E&S disclosures, companies also face increasing risks of litigation, as well as scrutiny from regulators, investors, and other third parties, over the accuracy and reliability of those E&S disclosures.

READ MORE »

Page 39 of 90
1 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 90