Yearly Archives: 2021

The Strategic Audit Committee: Navigating 2021

Maureen Bujno is Managing Director and Audit & Assurance Governance Leader and Krista Parsons is Managing Director and Audit Committee Programs Leader at the Center for Board Effectiveness, Deloitte & Touche LLP. This post is based on their Deloitte memorandum.

Introduction

It’s been said a lot: 2020 was a difficult year. The effects of the COVID-19 pandemic have led to unprecedented economic conditions and continued uncertainty in the business environment. This has resulted in increased complexities and risks that may have long- term implications. Seemingly overnight, employees began working virtually, and boards and audit committees had to find new ways to engage with management and their auditors in order to effectively execute their oversight responsibilities.

As companies continue dealing with the impact of the pandemic, the audit committee’s agenda and its processes will need to remain flexible to address issues and challenges as they arise. To provide effective oversight and help management navigate these challenging times, audit committees need to ask direct, targeted questions to understand management’s processes and decisions, as well as alternatives that were considered when addressing key issues.

We’ve been operating in this environment for three quarters and have learned much. Audit committees will continue to face an expanding agenda, and prioritization will be critical. While the role of the audit committee is vast, this publication focuses on two areas of oversight that may be critical for audit committees in the upcoming year: financial reporting and internal controls, and risk. Our focus is on providing a set of topics and additional resources for audit committees to consider as they manage their 2021 activities.

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2021 Proxy Season Preview: U.S.

Kern McPherson is Vice President of Research & Engagement; Courteney Keatinge is Senior Director of ESG Research; and Julian Hamud is Senior Director of Executive Compensation Research at Glass, Lewis & Co. This post is based on their Glass Lewis memorandum.

Environmental, Social & Governance (ESG)

Climate Change

Issues of climate change have been among the most prominent issues facing investors and companies in recent years. Emissions-intensive companies are under increasing regulatory pressure from governments seeking to curb climate impacts and mitigate climate-related risks. Moreover, with 2020 bringing an unprecedented number of storms as well as devastating fires in Australia and the West Coast of the United States, it is becoming very challenging for companies and investors to ignore the significant risks posed by the physical impacts of a changing climate.

Investors have traditionally targeted companies with the greatest exposure to issues of climate risk, such as those in the energy, materials or other extractives industries. However, we are seeing this focus grow to encompass companies that may be outside of these industries. These companies are increasingly being asked to provide, and shareholders are increasingly supporting, enhanced disclosure concerning their climate impacts and risks.

However, this has not alleviated the pressure on companies in more extractive industries, which are increasingly being asked to set Scope 3 emissions reductions targets and are facing coordinated engagements from groups like the Climate Action 100+. Accordingly, we anticipate seeing the submission of and strong investor support for resolutions on this topic.

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Statement by Commissioners Peirce and Roisman on the SEC’s Enhanced Climate Change Efforts

Hester M. Peirce and Elad L. Roisman are Commissioners at the U.S. Securities and Exchange Commission. This post is based on their recent public statement. The views expressed in this post are those of Ms. Peirce and Mr. Roisman and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Over the past two weeks, we and the public have seen a steady flow of SEC “climate” statements and press releases. [1] Our Divisions of Corporation Finance, Examinations, and Enforcement all have announced climate- or ESG-related initiatives. What does this “enhanced focus” on climate-related matters mean? The short answer is: it’s not yet clear. Do these announcements represent a change from current Commission practices or a continuation of the status quo with a new public relations twist? Time will tell. In the meantime, it is important to contextualize the recent announcements by providing some historical and procedural background.

The Division of Corporation Finance, per a recent statement by the Acting Chair, will enhance its focus on climate-related disclosure in public company filings and embark on the task of updating the Commission’s guidance in this area. [2] The staff of our Corporation Finance Division has been reviewing companies’ disclosures, assessing their compliance with disclosure requirements under the federal securities laws, and engaging with them on climate change and a variety of issues that fall under the ESG umbrella, for decades. For example, the Commission approved the 2010 Commission Guidance Regarding Disclosure Related to Climate Change, [3] and Division staff regularly assesses whether climate-related disclosures comply with our rules. [4] Indeed, even before the Commission issued its 2010 guidance, our disclosure regime encompassed climate-related issues. [5] All of the Division’s work has been rooted in materiality, the touchstone we use in assessing issuer disclosure on all topics, including climate.

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A Survey of Sustainability Disclosures by Small and Mid-Cap Companies

Granville J. Martin is General Counsel at the Society for Corporate Governance, and Maia Gez and Dov Gottlieb are partners at White & Case LLP. This post is based on a memorandum by White & Case and The Society for Corporate Governance by Mr. Martin, Ms. Gez, Mr. Gottlieb, Danielle Herrick, Colin Diamond, and Era Anagnosti. 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); 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 light of the continued focus on improving sustainability reporting, White & Case conducted its second annual survey and in-depth review of ESG website disclosures of 80 small- and mid-cap US public reporting companies:

  • Overall, more than half of the surveyed companies (approximately 51 percent, or 41 out of 80 companies) provided some form of voluntary sustainability disclosure on their websites. This represents a 16 percent increase from 2019, in which 35 percent of small- and mid-cap companies surveyed had website sustainability
  • Of the 41 companies that provided ESG website disclosure in 2020, at least 13 (or 32 percent) did not engage in any ESG website disclosure in 2019, suggesting a quickening trend of voluntary ESG website
  • Website sustainability disclosures ranged in length from a paragraph to multiple website pages or a stand-alone sustainability report.

Key trends and takeaways from our survey, which are set forth below, explain important factors driving the pace of sustainability disclosure journeys for US public companies, as described in the following sections of this post:

  • Industry Trends
  • Market Cap Trends
  • Disclosure Trends: Length of Time Since IPO
  • Use of Reporting Standards
  • Inclusion of Disclaimer Language
  • Sustainability Topics Discussed
  • Considerations and Key Takeaways

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Weekly Roundup: February 26-March 4, 2021


More from:

This roundup contains a collection of the posts published on the Forum during the week of February 26-March 4, 2021.


New Tactics and ESG Themes Change the Direction of Shareholder Activism



How Boards Can Prepare for Activism’s Next Wave


Recent Proxies Highlight COVID-Related Incentive Actions for FYE Companies


Intelligently Evolving Your Corporate Compliance Program



An Introduction to Activist Stewardship


SEC Division of Corporation Finance Directed to Focus on Climate-Related Disclosures


Biden’s “Money Cop” to Shine a Light on ESG Disclosure


Climate Risk and the Transition to a Low-Carbon Economy


SEC Acknowledges that Disgorgement Principles Apply to Administrative Proceedings


Gender Quotas and Support for Women in Board Elections


2021 Global and Regional Trends in Corporate Governance


2021 Compensation Committee



Duty and Diversity

Duty and Diversity

Chris Brummer is Professor at Georgetown Law; and Leo E. Strine, Jr., the former Chief Justice of the Delaware Supreme Court, is a Senior Fellow at the Harvard Law School Program on Corporate Governance; Ira M. Millstein Distinguished Senior Fellow at the Ira M. Millstein Center for Global Markets and Corporate Governance at Columbia Law School; Michael L. Wachter Distinguished Fellow in Law and Policy at the University of Pennsylvania Carey Law School; and Of Counsel at Wachtell, Lipton, Rosen & Katz. This post is based on their recent paper. 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); 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).

Fifty years ago, Milton Friedman told corporate fiduciaries that they should narrowly focus on generating profits for stockholders. Less focused upon, but explicit, was his view that corporations should not have a “social conscience” and take action to “eliminat[e] discrimination,” which he trivialized as a “watchword[] of the contemporary crop of reformers.” [1] Since then, Friedman and his adherents have espoused this cramped vision of fiduciary duty within the debate over corporate purpose. Even worse, while arguing that issues like DEI should be left to external law to address, they have simultaneously sought to erode the external laws promoting equality and inclusion.

In 2021, the problem Milton Friedman trivialized remains central. The inequality gap between Black and white Americans has grown since 1980, the period in which Friedman’s views became influential with directors and policymakers. And the ongoing pandemic’s unequal impact on minorities has underscored the persistence of profound inequality. So has ongoing violence against Black people like the killing of George Floyd. Likewise, economic inequality continues to adversely affect women.

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Proxy Advisory Firms Release First Reports on Latest Best Practices

Stephen Davis is a Senior Fellow at the Harvard Law School Program on Corporate Governance.

For the first time, six of the world’s most influential shareholder voting research and analysis firms (better known as “proxy advisors”), which help institutional investors vote shares at stock-exchange-listed companies worldwide, have each publicly released reports showing how they comply with the latest industry Best Practice Principles. [1]

Proxy advisors have been a target of corporate criticism ever since Institutional Shareholder Services (ISS) pioneered the voting-recommendation industry in 1985. Through its landmark 1988 Avon Letter, [2] the US Department of Labor first declared the share ballot an asset—making it all but mandatory that ERISA-regulated funds cast them. The rule paved the way for an expanded industry of voting research and advisory firms. But for decades many institutional investors commonly handled the responsibility as a low-status compliance exercise. In 2007 Lord Paul Myners, later UK City Minister, scathingly referred to proxy staff as the “open-toed sandal brigade” beavering in the basements of investment houses. [3]

That’s not the case today. Increasingly, investors are merging the voting responsibility with investor-corporate engagement in a new discipline that has become known as stewardship. Moreover, as asserted most prominently in annual letters from BlackRock’s Larry Fink [4] and State Street Global Advisors’ Cyrus Taraporevela, [5] stewardship is now seen as a central means for mainstream investors—not just activists—to seek and protect share value. As a result, institutions have piloted a steady drift away from routine endorsements of corporate management and toward more critical stances on executive pay, director nominations, ESG, and a host of other issues.

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2021 Compensation Committee

Kristin Davis and Michael Bergmann are counsel at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on a Skadden memorandum by Ms. Davis, Mr. Bergmann, Regina Olshan, Joseph Penko, Erica Schohn, and Joseph Yaffe.

Compensation committee (Committee) members’ duties and responsibilities generally are outlined in the Committee’s organizational charter (Charter) approved by the Board of Directors (Board) of the applicable company (Company), which should reflect requirements imposed by the securities exchanges, some of which are the result of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act or Dodd-Frank), applicable Securities Exchange Commission (SEC) regulations and other legal limitations. All of those obligations are discussed in greater detail later in this Handbook.

The Committee is responsible for establishing and overseeing an executive compensation program for the Company. The Committee should make executive compensation decisions within the context of its members’ executive compensation philosophies and the corporate governance standards applicable to directors generally.

This post provides an overview of the most important considerations that relate to the proper discharge of the Committee’s responsibilities, including the role of advisors to the Committee. The complete publication (available here) address those considerations in more detail.

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2021 Global and Regional Trends in Corporate Governance

Rusty O’Kelley III is leader of the firm’s Board & CEO Advisory Partners; Anthony Goodman is a member of the Board Consulting and Effectiveness Practice; and Laura Sanderson is a consultant at Russell Reynolds Associates. This post is based on a Russell Reynolds memorandum by Mr. O’Kelley, Mr. Goodman, Ms. Sanderson, Andrew Droste, Sarah Eades Oliva, and Alvin Chiang.

Introduction

This year, as in the previous five years, Russell Reynolds Associates interviewed over 40 global institutional and activist investors, pension fund managers, proxy advisors and other corporate governance professionals to identify the corporate governance trends that will impact boards and directors in 2021.

Global Trends Predicted for 2020

  1. Greater focus on the E&S of ESG
  2. Increasing importance of corporate purpose
  3. Better board oversight of corporate culture and HCM
  4. More expansive view of board diversity that includes ethnicity and race
  5. Companies facing wider forms of activism

At the time of publishing last year’s paper in January 2020, we could not have known just how painfully relevant many of the trends we predicted would turn out to be:

The COVID-19 pandemic and social justice movements have had far-reaching impacts on business and society around the world. In many ways, we are at a turning point. Corporate governance trends vary somewhat across regions, but corporations globally are experiencing a reckoning around their role in society. The expectations of the independent directors who oversee corporations have never been higher.

Global Trends Predicted for 2021

  1. Climate Change Risk
  2. Diversity, Equity & Inclusion (DE&I)
  3. Convergence of Sustainability Reporting Standards
  4. Human Capital Management
  5. Return of Activism and Increased Capital Markets Activity
  6. Virtual Board & Shareholder Meetings: Here to Stay

1. Climate Change Risk. The pandemic forced the “S” of ESG (environmental, social and governance factors) higher up the corporate agenda as companies sought to reassure stakeholders that they took the safety of their workers and communities seriously. In 2021, climate change will be back in focus.

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Gender Quotas and Support for Women in Board Elections

Marina Gertsberg is Assistant Professor of Finance at Monash University; Johanna Mollerstrom is Associate Professor of Economics at George Mason University; and Michaela Pagel is Associate Professor of Finance at Columbia Business School. This post is based on their recent paper. 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).

In September 2018 a quota for corporate boards was passed in California (CA Senate Bill 826). It requires all publicly held firms headquartered in the state to have at least one appointed female director by the end of 2019, and two (three) female board members by the end of 2021 for boards with five (six or more) members. Following the lead of several European countries, this made California the first US state to impose a binding gender quota on boards. The stock market reacted negatively to the quota (as documented by Hwang, Shivdasani, and Simintzi, 2018; Greene, Intintoli, and Kahle, 2020), a fact which has been interpreted as evidence that shareholders oppose the mandated addition of new female directors (e.g., because of scarcity of qualified female candidates leading to higher search costs, or to suboptimal trustees being appointed, see also Ahern and Dittmar, 2012) and prefer the current composition of the board.

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