Yearly Archives: 2021

Weekly Roundup: March 12–18, 2021


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This roundup contains a collection of the posts published on the Forum during the week of March 12-18, 2021.


Trusting What You Can’t See: Audit Oversight and the PCAOB



2020 Say on Pay & Proxy Results




The SEC Should Address the Risk of Activist “Lightning Strikes”


Transparency and the Future of Corporate Political Spending



Delaware Chancery Court Invalidates “Anti-Activist” Poison Pill



C-Suite Challenge 2021: Leading in a Post-COVID-19 Recovery




How the COVID-19 Pandemic Influenced Incentive Plans



Speech by Acting Chair Lee on the Importance of Fund Voting and Disclosure

Allison Herren Lee is Acting Chair at the U.S. Securities and Exchange Commission. This post is based on her recent remarks at the 2021 ICI Mutual Funds and Investment Management Conference. The views expressed in the post are those of Acting Chair Lee, and do not necessarily reflect those of the Securities and Exchange Commission or the Staff. Related research from the Program on Corporate Governance includes The Agency Problems of Institutional Investors by Lucian Bebchuk, Alma Cohen, and Scott Hirst (discussed on the Forum here).

Good afternoon everyone, and thank you to the ICI for inviting me to speak with you today at the 2021 Mutual Funds and Investment Management Conference.

I gave my last in-person speech on March 5, 2020. It’s hard to believe that a full year has passed and we are still operating in a virtual environment. Among the many lessons this last year has taught, we’ve learned that we can still come together to exchange ideas as we do this week at the ICI’s conference. The exchange of information and ideas, the goal of any conference, relates to one of our underlying democratic norms: that knowledge is empowering. That principle is also the basis of shareholder democracy: through clear and timely disclosure, we empower investors to hold the companies they own accountable—including accountability on climate and ESG matters. But in a world where institutional investors play an unprecedented role in our economic future, the people in this virtual room are also increasingly key to making sure companies are accountable to their shareholders—on those very issues, which, it’s no secret, have long been a focus of mine in large part because it is the focus of investors representing tens of trillions of dollars.

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Measuring Accounting Fraud and Irregularities Using Public and Private Enforcement

Christopher G. Yust is assistant professor of accounting at Texas A&M University Mays Business School. This post is based on a recent paper forthcoming in The Accounting Review authored by Mr. Yust, Dain Donelson, Antonis Kartapanis, and John McInnis.

Corporate accounting fraud has a significant negative impact on the economy and investors, so academic research on factors that make accounting fraud more or less likely to occur has substantial real-world and public policy implications. However, conducting such research is difficult because researchers cannot observe the incidence of fraud for most firms, corporate admissions of fraud are rare, and trials proving fraud are almost nonexistent. Thus, researchers are forced to rely on proxies for fraud to conduct empirical analysis. Our recent paper examines the use of both public and private accounting enforcement with appropriate screening to proxy for accounting fraud and demonstrates how this combined proxy improves research inferences.

The current dominant proxy for accounting fraud in research is public enforcement through the Securities and Exchange Commission (SEC). In contrast, relatively few papers, particularly in the accounting literature, use private enforcement via securities class actions (SCAs). However, we argue that the use of only public or private enforcement excludes credible fraud firm observations as the SEC lacks a sufficient budget to pursue all possible fraud and private litigants lack the incentive to pursue such cases if their expected costs exceed expected recoveries. Critically, the use of either enforcement regime does not only reduce statistical power but can also bias regression estimates.

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How the COVID-19 Pandemic Influenced Incentive Plans

Mike Kesner is partner, and Joshua Bright and Linda Pappas are principals at Pay Governance LLC. This post is based on their Pay Governance memorandum. 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).

The COVID-19 global pandemic has had a profound impact on the economy and forced many companies to make dramatic changes in staffing, operations, supply chains, and short- and long-term business plans. At the time this article is being written, close to 10 million fewer people are employed in the U.S. than at this time last year. Many companies acted swiftly at the onset of COVID-19 in the U.S. by implementing base salary reductions, enacting furloughs, suspending 401(k) matches, and taking other measures to reduce cost, improve cash flow, and strengthen balance sheets. By the end of April 2020, as lockdowns eased, the major stock indices started to recover, and companies showed their resiliency by adapting their operations to fit the new COVID-19-dominated environment.

As companies reset business plans and priorities in response to the pandemic, compensation committees and senior management teams also began to assess the pandemic’s impact on their incentive plans—both what had happened and what may yet happen—and discuss what actions, if any, might be appropriate to address these disruptions in compensation programs that were established prior to the onset of the pandemic.

Pay Governance reviewed the proxy filings of S&P 1500 companies (available as of February 8, 2021) with fiscal years (FYs) ending between April 30, 2020 and October 31, 2020 (“early filers”). We focused on disclosure related to 2020 annual incentives (AIs), long-term incentives (LTIs) with performance periods ending in 2020, and “in-flight” incentive awards (i.e., incentive awards with a performance measurement period that has not yet concluded). We also reviewed forward-looking disclosures about 2021 compensation structures to identify the key changes (or lack thereof) and researched how shareholders and the proxy advisory firms reacted to the changes.

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Cleaning Corporate Governance: A New Open-Access Dataset on Firm- and State-Level Corporate Governance

Eric Talley is the Isidor & Seville Sulzbacher Professor of Law at Columbia Law School. This post is based on a recent paper forthcoming in the University of Pennsylvania Law Review, authored by Prof. Talley; Jens Frankenreiter, Postdoctoral Fellow in Empirical Law and Economics at the Ira M. Millstein Center for Global Markets and Corporate Ownership at Columbia Law School; Cathy Hwang, Professor of Law at the University of Virginia School of Law; and Yaron Nili, Assistant Professor of Law at the University of Wisconsin-Madison Law School. Related research from the Program on Corporate Governance includes Learning and the Disappearing Association between Governance and Returns, by Lucian Bebchuk, Alma Cohen, and Charles C.Y. Wang (discussed on the Forum here); and What Matters in Corporate Governance? by Lucian Bebchuk, Alma Cohen, and Allen Ferrell.

In the iconic 1994 Tarantino film Pulp Fiction, Harvey Keitel makes a brief yet memorable appearance as Winston Wolfe (a.k.a., the “Cleaner”). His forte? Tidying up the inconvenient (and usually gruesome) messes perpetrated by others. Wolfe’s modus operandi was never pretty and rarely polite; but it was invariably effective.

Empirical corporate governance needs its own Winston Wolfe. Over the last thirty years, the field has risen in prominence by quantifying what was traditionally thought unquantifiable—text from state laws, federal regulations, and firm-level governance documents—to measure the quality of governance. Canonical studies have shown that countries with strong investor protections are more likely to have higher firm valuations, that more shareholder-friendly firms outperformed more management-friendly ones, and numerous other significant real-world predicted effects of governance on firm performance.

But beneath the field’s orderly veneer lurks an unsettling vulnerability: three decades of finance, economics, and legal studies in corporate governance have been built substantially on data sets with nearly unknown provenance.

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Evaluating Executive Compensation in Times of Crisis

John Galloway is global head of investment stewardship at Vanguard, Inc. This post is based on a publication by Vanguard Investment Stewardship.

Our philosophy hasn’t changed

In our last Insights on compensation, we shared key considerations for well-structured executive compensation plans that could withstand the most challenging market and economic conditions, including a pandemic. Although we recognize the unprecedented challenges that companies have faced and that will continue to play out over the coming months, our philosophy on executive compensation has not changed. We look for compensation policies that incentivize long-term outperformance versus peers and drive sustainable value for a company’s investors.

Build long-term plans and stay the course

We continue to evaluate executive compensation case by case and look for a strong focus on performance and the long term. The Vanguard funds are more likely to support plans in which a majority of executive compensation remains variable, or “at risk,” with rigorous performance targets set well beyond the next quarter. Companies across all sectors have experienced varying levels of disruption from the COVID-19 pandemic, including many businesses that have had to fully or partly close following government-mandated lockdowns.

Vanguard understands that the crisis may have hurt companies’ performance. However, we remain steadfast in our view that compensation committees should not retroactively adjust performance targets or time horizons, despite the challenging environment. “At-risk” compensation should remain at risk, just as the Vanguard funds’ capital does—along with that of other shareholders. We believe that the experiences of shareholders and executives should be aligned in both good and challenging times.

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C-Suite Challenge 2021: Leading in a Post-COVID-19 Recovery

Charles Mitchell is Executive Director of Knowledge Content & Quality at The Conference Board, Inc. This post is based on a Conference Board memorandum by Mr. Mitchell, Rebecca L. Ray, Ataman Ozyildirim, Ilaria Maselli, and Dana Peterson.

Executive Summary: Meeting the Challenges Ahead

Since 1999, The Conference Board CEO Challenge® survey has asked CEOs across the globe to identify the most critical issues they face and their strategies to meet them. Since 2017, the C-Suite Challenge has expanded the survey pool beyond CEOs to the entire C-suite. This year’s survey, conducted following the US elections in November 2020, asked CEOs and C-suite executives for their views on the external stress points they face and the strategies they will focus on to mitigate risk and seize opportunity as part of the post-COVID-19 recovery. In addition, the survey asked respondents for their views on the long-term impacts that will emerge from the pandemic. A total of 1,538 C-suite executives, including 909 CEOs across the globe, responded.

Insights for What’s Ahead

When asked which issues outside of management control will have the greatest impact on their business in the coming year, CEOs cite the COVID-19 virus, vaccine availability, and changing consumer buying behaviors as the key potential game changers in 2021. However, despite modest growth expectations for the global economy in both the short and long term, business leaders seem unable to shake lingering recession concerns.

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Speech by Acting Chair Lee on Meeting Investor Demand for Climate and ESG Information at the SEC

Allison Herren Lee is Acting Chair at the U.S. Securities and Exchange Commission. This post is based on her recent public statement. The views expressed in the post are those of Acting Chair Lee, and do not necessarily reflect those of the Securities and Exchange Commission or the Staff.

Thank you, John [Podesta], and thanks to the whole team here at the Center for American Progress, for hosting me today. I’ve had the honor of serving as Acting Chair of the SEC for nearly two months now, and I appreciate the opportunity to reflect on the enhanced focus the SEC has brought to climate and ESG during that time, and on the significant work that remains. Along with shepherding the agency through the transition and supporting the work of the SEC staff, no single issue has been more pressing for me than ensuring that the SEC is fully engaged in confronting the risks and opportunities that climate and ESG pose for investors, our financial system, and our economy.

Today I want to map out the ways in which we have brought investors’ voices to the forefront on these issues in recent months. The progress to date is a tribute to the hard work of the staff, both in my office and throughout the SEC. I especially want to thank my Senior Policy Advisor for Climate and ESG, Satyam Khanna, who has worked tirelessly and effectively across the agency on these issues. I know climate and ESG is of great interest to CAP as well, and I thank you for your critical work in this area.

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Delaware Chancery Court Invalidates “Anti-Activist” Poison Pill

Lori Marks-EstermanSteve Wolosky, and Andrew Freedman are partners at Olshan Frome Wolosky LLP. This post is based on their Olshan memorandum, and is part of the Delaware law series; links to other posts in the series are available here. Related research from the Program on Corporate Governance includes Toward a Constitutional Review of the Poison Pill by Lucian Bebchuk and Robert J. Jackson, Jr. (discussed on the Forum here).

On February 26, 2021, the Delaware Court of Chancery issued a landmark decision invalidating a stockholder rights plan, commonly known as a “poison pill,” that was adopted by the board of directors of The Williams Companies, Inc., an NYSE listed company (“Williams” or the “Company”), at the outset of the COVID‑19 pandemic. Steve Wolosky, the co-chair of Olshan’s Shareholder Activist Group, was a lead plaintiff in the class action lawsuit seeking to invalidate the pill. The Williams pill was one of many rights plans adopted by dozens of public companies during the pandemic, purportedly in response to specific control threats and/or precipitous drops in share price due to extreme market volatility.

The Williams pill, however, was “unprecedented” in that it was adopted purely as an “anti-activist pill” and contained a series of extreme features, including a 5% trigger and expansive “acting in concert” language that included a “daisy chain” provision. In the class action lawsuit, the certified class of plaintiffs asserted that the board of directors of the Company (the “Board”) breached its fiduciary duties when adopting the pill. In an 89-page opinion written by Vice Chancellor McCormick, the Court held that this unprecedented pill could not be justified given the Board’s motivations for its adoption and the “extreme combination of features” it possessed.

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Delaware Court of Chancery Allows Merger-Based Breach of Fiduciary Duty Claims to Proceed

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

On January 29, 2021, Vice Chancellor Laster of the Delaware Court of Chancery refused to dismiss a shareholder class action stemming from the 2019, $2.2 billion sale of Presidio, Inc., an IT solutions provider specializing in digital infrastructure and cloud and security solutions, to BC Partners Advisors L.P. (“BCP”), a private-equity firm. In Firefighters’ Pension System of the City of Kansas City v. Presidio, Inc., a shareholder of Presidio filed suit against Presidio’s CEO, its board of directors, Apollo Global Management LLC (Presidio’s controlling shareholder, owning approximately 42% of its outstanding common stock), LionTree Advisors, LLC (financial advisor to both Presidio and Apollo), and the acquiror, BCP.

The shareholder claimed that Apollo, Presidio’s CEO, and LionTree all favored—out of their own self-interests—a sale to BCP rather than a more competitive sales process. Apollo was allegedly seeking an exit from its investment in Presidio and favored a quick sale to BCP rather than a drawn-out bidding war. Presidio’s CEO allegedly favored steering the sale to BCP because BCP had promised him a lucrative post-sale pay package. As for LionTree, it allegedly was motivated by ongoing, lucrative relationships with both BCP and Apollo and tipped off BCP to another incoming bid so that BCP could stave-off a bidding war. The shareholder claimed that, as a result, Apollo, Presidio’s CEO, and the board breached their fiduciary duties and that LionTree and BCP aided and abetted the fiduciary duty breaches.

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