Yearly Archives: 2021

Key Corporate Governance Issues at Mid-Year 2021

Martin Lipton is a founding partner of Wachtell, Lipton, Rosen & Katz, specializing in mergers and acquisitions and matters affecting corporate policy and strategy; and Steven A. Rosenblum and Karessa L. Cain are partners at Wachtell, Lipton, Rosen & Katz. This post is based on their Wachtell memorandum. Related research from the Program on Corporate Governance includes What Matters in Corporate Governance? by Lucian Bebchuk, Alma Cohen, and Allen Ferrell.

Last year, we did a mid-year edition of our annual Thoughts for Boards of Directors to highlight key issues and considerations in managing the challenging business environment and profound upheaval caused by the pandemic. Many of these issues are still top-of-mind as the “new normal” continues to evolve, and will continue to be prominent themes in boardroom discussions. As we emerge from the pandemic, boards and management teams should continue to assess their corporate purpose, strategy, risk management procedures, and board committee structures to optimize their ability to deal with the ever-proliferating number and complexity of business risks and opportunities they must navigate, including the following:

READ MORE »

Tone at the Bottom: Measuring Corporate Misconduct Risk from the Text of Employee Reviews

Dennis Campbell is Dwight P. Robinson Jr. Professor of Business Administration at Harvard Business School, and Ruidi Shang is Assistant Professor of Accountancy at Tilburg University. This post is based on their recent paper.

Numerous cases of corporate misconduct have emerged globally in recent years and caused large financial, reputational, and other damages for firms, their stakeholders, and even broader society. Managers’ and employees’ inherent tendency to commit such misconduct is deeply rooted in the operating and control environment of their organization. For example, Wells Fargo was caught in 2016 for opening two million fake accounts and selling products and services to customers under false pretenses to increase sales figures. Even though the misconduct in Wells Fargo was committed by lower-level employees, their motive to engage in such misconduct was derived from the aggressive sales targets and cross-selling strategies set by middle- and upper-level managers. Further, weaknesses in Wells Fargo’s internal control systems also provided employees with opportunities to engage in misconduct. Similar examples can be seen in other recent high profile cases such as those of Volkswagen, Theranos, and BP. In each of these cases, as with Wells Fargo, both the underlying acts of misconduct and the organizational cultures and management pressures that gave rise to them were likely to be observed by numerous employees well before they resulted in economic damage to the firm and its customers, employees, and investors.

If external stakeholders, such as investors, could obtain such information about firms’ internal operating and control environments, they might be able to assess the risk of future misconduct. However, since external stakeholders do not directly observe or participate in the daily operating and control practices within firms, they cannot easily obtain such inside information. In comparison, employees have the best access to the information on firms’ internal operations and controls simply as a by-product of their daily work.

READ MORE »

How Companies Should Respond to the SEC’s Enhanced Focus on Rule 10b5-1 Plans

Sonia Gupta Barros and Stephen L. Cohen are partners and Sara M. von Althann is counsel at Sidley Austin LLP. This post is based on a Sidley memorandum by Ms. Barros, Mr. Cohen, Ms. von Althann, John P. Kelsh, and Sasha P. Hondagneu-Messner.

On June 7, 2021, Securities and Exchange Commission (SEC) Chair, Gary Gensler, expressed concern about potential abuses of Securities Exchange Act Rule 10b5-1 and announced that he expects to revise the rule. [1] The agency followed with an updated regulatory agenda which signals that proposed new rules may come before the end of the year.

Rule 10b5-1 provides an affirmative defense from insider trading for corporate insiders and companies to buy and sell company stock as long as they adopt their trading plans in good faith and while not in possession of material nonpublic information. These arrangements typically involve periodic sales pursuant to a schedule determined at the outset of the plan, sometimes combined with giving a third party (generally a broker) sole discretionary authority with respect to certain aspects of the trades. However, academic studies have asserted that some executives use 10b5-1 plans to engage in opportunistic, large-scale selling of company shares. [2] There are limited SEC enforcement actions concerning Rule 10b5-1 and none recent.

READ MORE »

Phantom of the Opera: ETF Shorting and Shareholder Voting

Oğuzhan Karakaş is Senior Lecturer in Finance at the University of Cambridge Judge Business School. This post is based on a recent paper authored by Mr. Karakas; Richard B. Evans, Associate Professor of Business Administration and Donald McLean Wilkinson Research Chair in Business Administration at the University of Virginia Darden School of Business; Rabih Moussawi, Associate Professor of Finance & Real Estate at Villanova School of Business; and Michael Young, Assistant Professor of Finance at the University of Missouri Robert Trulaske, Sr. College of Business.

In our recent paper, Phantom of the Opera: ETF Shorting and Shareholder Voting, we analyze the impact of the short-selling of exchange traded funds (ETFs) on shareholder voting of the underlying securities. We introduce a novel measure of the wedge created between the economic ETF ownership and the voting rights of ETF underlying shares, which we call “phantom shares”. We examine the implications of these phantom shares on the voting process, voting outcomes, voting rights premia, and merger returns. We find that phantom shares, stemming from short-selling of ETF shares (for ETF market making, directional, or hedging purposes), lead to sidelined votes during the proxy voting process. This sidelining appears to be due to the underlying shares backing these ETF short positions going unvoted.

Proxy voting is a fundamental mechanism for shareholder ‘voice’ in corporate governance, including shareholder engagement and activism. With the dramatic surge in passively managed assets across the globe, index funds and ETFs play an increasingly important role in proxy voting. While the debate regarding the efficacy of passive investor voting decisions is in its early stages, our paper addresses a more foundational issue: whether or not the shares of stock underlying the ETFs are voted at all.

READ MORE »

A New Angle on Cybersecurity Enforcement from the SEC

John F. Savarese, Wayne M. Carlin, and Sabastian V. Niles are partners at Wachtell, Lipton, Rosen & Katz. This post is based on their Wachtell memorandum.

In recent years, companies across a wide range of industries have wrestled with the challenge of making appropriate disclosures about cybersecurity risks and vulnerabilities. Earlier this week, an SEC enforcement action, In the Matter of First American Financial Corp. (June 14, 2021) (“FAFC”), shed important new light on these cyber disclosure issues. Importantly, the case did not involve a third-party attack or actual data breach. Rather, it arose from an existing weakness in FAFC’s systems, and centered on the company’s public statements when the vulnerability was publicized in a press report. The case charges that FAFC failed to maintain disclosure controls and procedures sufficient to ensure that all available relevant information concerning the problem was analyzed for inclusion in the company’s disclosures. The SEC has not previously employed this theory as the exclusive basis for a cyber-related enforcement action. FAFC settled without admitting or denying the SEC’s findings.

FAFC is a real estate settlement services provider. According to the SEC’s order, in mid-2019, a cybersecurity journalist contacted FAFC seeking comment on a story about a security vulnerability in one of the company’s web-based applications. FAFC provided a statement to the reporter and also released it to other media outlets, noting, among other things, that “security, privacy and confidentiality are of the highest priority, and we are committed to protecting our customers’ information. The company took immediate action to address the situation . . . .” Shortly thereafter, FAFC filed a Form 8-K, in which it stated that it “shut down external access to a production environment with a reported design defect that created the potential for unauthorized access to customer data.”

READ MORE »

The Board Diversity Census of Women and Minorities on Fortune 500 Boards

Carey Oven is national managing partner at the Center for Board Effectiveness and chief talent officer of Deloitte Risk & Financial Advisory and Deloitte & Touche LLP; and Linda Akutagawa is president and CEO of the Leadership Education for Asian Pacifics (LEAP). This post is based on a Deloitte memorandum by Ms. Oven, Ms. Akutagawa, Lorraine Hariton, Michael C. Hyter, Dale Jones, Cid Wilson, and Caroline Schoenecker. Related research from the Program on Corporate Governance includes Politics and Gender in the Executive Suite by Alma Cohen, Moshe Hazan, and David Weiss (discussed on the Forum here).

While stakeholders and shareholders increase demands for gender, racial, and ethnic diversity in the boardrooms of America’s companies, many forward-thinking boards recognize the benefits of such change. This business case for board diversity is not new and may no longer be forward-thinking. The protests over racial injustices and state legislative action on board composition in 2020 made clear that the need for greater representation of women and minorities in the boardrooms of America’s largest companies can no longer be held up or held back. As demographics and buying power [1] in the United States become increasingly more diverse, corporate boards are working to obtain greater diversity of background, experience, and thought in the boardroom.

Since 2004, the Alliance for Board Diversity (ABD or “we”) has had a mission to increase the representation of women and minorities on corporate boards and amplify the need for diverse board composition. During this time, ABD has celebrated the movement forward on diverse board representation, but the fact remains that progress has been painfully slow. In 2019, Catalyst estimated that minority women are more than 20% of the US adult population (“Women of Color in the United States: Quick Take,” February 1, 2021, Catalyst). To reach a point of 20% of Fortune 100 seats held by minority women would take until 2046 at the current rate of change.

READ MORE »

Gensler Plans to “Freshen Up” Rule 10b5-1

Cydney S. Posner is special counsel at Cooley LLP. This post is based on her Cooley memorandum.

[On June 7, 2021], in remarks before the WSJ’s CFO Network Summit, SEC Chair Gary Gensler scooped the Summit with news of plans to address issues he and others have identified in Rule 10b5-1 plans. Problems with 10b5-1 plans have long been recognized—including by former SEC Chair Jay Clayton—so it will be interesting to see if any proposal that emerges will find support among the Commissioners on both sides of the SEC’s aisle. In an interview, Gensler also responded to questions about climate disclosure rules, removal of the PCAOB Chair, Enforcement, SPACs and other matters.

Rule 10b5-1 background. Corporate executives, directors and other insiders are constantly exposed to material non-public information, making it sometimes difficult for them to sell company shares without the risk of insider trading, or at least claims of insider trading. To address this issue, Congress developed the Rule 10b5-1 safe harbor. In general, Rule 10b5-1 allows an insider, when acting in good faith and not in possession of MNPI, to establish a formal trading contract, instruction or plan that specifies pre-established dates or formulas or other mechanisms—that are not subject to the insider’s further influence—for determining when the insider can sell shares, without the risk of insider trading. To be effective, the contract, instruction or plan must also conform to the specific requirements set forth in the Rule. In effect, the Rule provides an affirmative defense designed to demonstrate that a purchase or sale was not made “on the basis of” MNPI. If a 10b5-1 contract, instruction or plan is properly established, the issue is not whether the insider had MNPI at the time of the purchase or sale of the security; rather, that analysis is performed at the time the instruction, contract or plan is established.

READ MORE »

Weekly Roundup: June 18–24, 2021


More from:

This roundup contains a collection of the posts published on the Forum during the week of June 18–June 24, 2021.






Competition Laws, Governance, and Firm Value



The Biden Administration’s Executive Order on Climate-Related Financial Risks


Benchmarking of Pay Components in CEO Compensation Design




Speech by Commissioner Roisman on Whether the SEC Can Make Sustainable ESG Rules


Do ESG Mutual Funds Deliver on Their Promises?


Nasdaq Permits Primary Direct Listings and Proposes Relaxation of Pricing Limits



Prepared Remarks by SEC Chair Gensler at London City Week

Gary Gensler is Chair of the U.S. Securities and Exchange Commission. This post is based on his recent remarks at London City Week. 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 that kind introduction, Anthony. As is customary, I’d like to note that I’m not speaking on behalf of my fellow Commissioners or the SEC staff.

I’m honored to be speaking again at London City Week. It’s been eight years since I last spoke here. That was about benchmark interest rates and the London Interbank Offered Rate (LIBOR). I may come back to that, but I’m mostly going to take the opportunity to discuss three key areas of the reform agenda at the Securities and Exchange Commission.

The SEC was set up in the 1930s by Franklin Delano Roosevelt and the U.S. Congress to look after working families’ savings in the depths of the Great Depression.

Congress passed a number of laws with the same basic ideas—among them, that investors get to decide what risks they wish to take, as long as companies provide appropriate disclosures; that working families should be protected with regard to their investment advisers; and that the stock exchanges themselves should be free of fraud and manipulation.

Those protections put in place by Congress and the early SEC have stood the test of time. I think they’re a large part of our economic success—why the U.S. has the largest, most vibrant capital markets in the world.

READ MORE »

M&A Advisor Misconduct: A Wrong Without a Remedy?

Andrew F. Tuch is Professor of Law at Washington University in St. Louis. This post is based on his recent paper, forthcoming in the Delaware Journal of Corporate Law.

Rarely have investment banks faced liability in their role as advisors on merger and acquisition (“M&A”) transactions. At first glance, this is puzzling. M&A deals are ubiquitous and frequently attract lawsuits. Moreover, in their other activities, most notably securities underwriting, investment banks are frequent litigation targets, being seen as deep-pocketed defendants. And yet, in advising on often-contentious M&A deals, they have succeeded spectacularly by generally avoiding liability altogether.

In M&A Advisor Misconduct: A Wrong Without a Remedy?, I examine this anomaly, explaining the doctrinal and practical reasons for it. The article puts in context a recently successful shareholder strategy to bring M&A advisors to heel. It shows how this litigation strategy—a direct action by shareholders alleging aiding and abetting liability against the corporation’s M&A advisor based on the underlying wrong of directors—may delicately side-step the traditional obstacles. This strategy has succeeded on occasion, provoking widespread alarm in the investment banking community—but the approach marks only a modest increase in liability risk for M&A advisors. The liability framework for M&A advisors remains piecemeal and unlikely to be effective in deterring M&A advisor misconduct.

READ MORE »

Page 47 of 90
1 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 90