Yearly Archives: 2022

Weekly Roundup: October 7-13, 2022


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This roundup contains a collection of the posts published on the Forum during the week of October 7-13, 2022.

DEI Initiatives under Attack by Activists


DOJ Revamps Corporate Criminal Enforcement Policies with Continued Emphasis on Compliance


2023 US Proxy and Annual Reporting Season


What It Means for a Board To Exercise Oversight




Navigating the ESG landscape: Comparison of the “Big Three” Disclosure Proposals


Voluntary ESG “Materiality” Assessments — Legal Considerations and Dos and Don’ts


Green Energy Depends on Critical Minerals. Who Controls the Supply Chains?


Private Company Board Compensation and Governance


Despite Slowdown in SPAC Activity, Opportunities Remain



Private equity considerations from the SEC’s climate proposal


Second Circuit (re)opens the door to offshore M&A litigation being filed in the U.S.


Going Beyond Climate: A Closer Look at Environmental Proposals


What’s ESG Got to Do With It?


What’s ESG Got to Do With It?

Martha Carter is Vice Chairman & Head of Governance Advisory, Matt Filosa is Senior Managing Director, and Rhea Brennan is Vice President at Teneo. This post is based on a Teneo memorandum by Ms. Carter, Mr. Filosa, Ms. Brennan, Oliver Parry, Lisa R. Davis, and Gaby Sulzberger. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance (discussed on the Forum here) and Will Corporations Deliver Value to All Stakeholders? (discussed on the Forum here) both by Lucian A. Bebchuk and Roberto Tallarita; Restoration: The Role Stakeholder Governance Must Play in Recreating a Fair and Sustainable American Economy—A Reply to Professor Rock (discussed on the Forum here) by Leo E. Strine, Jr; and Stakeholder Capitalism in the Time of COVID (discussed on the Forum here) by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita.

Executive Summary

In 2022, global companies have encountered a fractured ESG landscape marked by widely divergent views. On the one hand, regulators are mandating more robust ESG disclosures from both companies and institutional investors. Regulators are also cracking down on so-called “greenwashing” – trying to hold companies accountable to ESG commitments. On the other hand, the anti-ESG movement is increasingly vocal, with some questioning the very legitimacy of stakeholder capitalism and ESG investing. To complicate matters further, an increasingly bearish stock market is presenting the first real stress-test of ESG matters in the eyes of markets and investors.

We believe it is imperative for companies to stay sharply focused on the ESG issues that are most important to their businesses and stakeholders. Large investors have expressed a strong belief that certain ESG factors can have a material impact on a company’s long-term financial health, and there are no signs that investors are backing away from that stance. In fact, as discussed in our annual proxy season review, “anti-ESG” shareholder proposals fared poorly again in 2022, averaging less than 3% support, with many failing to meet the 5% threshold for resubmission. Investors are likely to continue demanding that companies proactively manage their material ESG risks and opportunities appropriately. However, as companies continue to act on ESG, questions remain over what companies should disclose and how.

To help companies answer these and other important questions around ESG disclosure, Teneo analyzed 200 sustainability reports from S&P 500 companies published between January 1 – June 30, 2022 (“Sustainability Reports”). In this report, we have highlighted common content and design elements of 2022 Sustainability Reports, along with useful examples and recommendations.

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Going Beyond Climate: A Closer Look at Environmental Proposals

J. T. Ho is partner at Orrick, Herrington & Sutcliffe LLP. This post is based on his recent Orrick memorandum. Related research from the Program on Corporate Governance includes Social Responsibility Resolutions by Scott Hirst.

ESG-related shareholder proposals featured prominently in the most recent proxy season, with nearly 40% of large-cap public companies facing a shareholder vote on ESG topics over the first half of 2022. As introduced in an earlier article, we continue to review ESG-related proposals submitted to companies in the Fortune 250 during this period to identify new trends and to anticipate future proposals.

The first half of 2022 saw a significant increase across the Fortune 250 in proposals seeking supplemental disclosure reports about a range of environmental impact matters. While most environmentally focused proposals were related to climate change governance and disclosures, the first half of 2022 saw a growing number of proposals that covered additional environmental topics. We identified 13 such proposals in the first half of 2022, compared to just four during all of 2021. The majority (53%) requested disclosure reports detailing strategies, use and trend metrics, compliance efforts and similar information about single use plastic and packaging materials. The remainder requested similar disclosure reports about deforestation prevention (6%), pesticide use (6%), water management (6%), financing of fossil fuel supplies (6%), and similar environmental impact expenditures (23%).

Opposition statements by companies primarily acknowledged the risks posed to the business and the environment, expressed shared concern about the issue raised, and pointed to applicable existing disclosures, reports, and strategies as confirmation the company is already reacting. The opposition statements often concluded that preparing more reports would only create additional administrative burdens which would be better devoted to existing or planned operational initiatives in the area.

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Second Circuit (re)opens the door to offshore M&A litigation being filed in the U.S.

Jonathan K. Chang is counsel and Lawrence Portnoy and Brian S. Weinstein are partners at Davis Polk & Wardwell LLP. This post is based on their Davis Polk memorandum.

More shareholder challenges of offshore corporate transactions are likely to be filed in U.S. courts following a recent decision holding that a forum clause in a foreign issuer’s depositary agreement covers claims that, at their core, concern alleged breaches of fiduciary duty by directors and controlling shareholders, which are governed by Cayman law. The prevalence of mandatory forum selection clauses in depositary agreements means this decision is likely to have a significant impact.

Background

This is the latest in the long-running litigation concerning the 2016 going-private transaction of E-Commerce China Dangdang. Our prior summary of the case can be found here.

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Private equity considerations from the SEC’s climate proposal

Tania Carnegie, Elizabeth Ming, and Jeffrey M. Rojek are partners at KPMG LLP. This post is based on their KPMG memorandum. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance (discussed on the Forum here) by Lucian A. Bebchuk and Roberto Tallarita; For Whom Corporate Leaders Bargain (discussed on the Forum here) and Stakeholder Capitalism in the Time of COVID (discussed on the Forum here), both by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita; and Restoration: The Role Stakeholder Governance Must Play in Recreating a Fair and Sustainable American Economy—A Reply to Professor Rock (discussed on the Forum here) by Leo E. Strine, Jr.

Investment in environmental, social and governance (ESG) factors is a top priority for private equity, and it has been for quite some time. Thanks to the increasing belief that strong ESG scores command a higher premium, [1] ESG has rapidly transformed from a nice-to-have differentiator into an integral component of each stage of the investment life cycle, from the growing mandate for investment in ESG to asset owners’ calls for general partners (GPs) to apply an ESG lens to all potential investments. This change has also shifted the lens through which new investment strategies are underwritten. In fact, 72% of large private equity firms with annual revenues of $50 million to $1 billion have incorporated ESG strategies into their portfolio of asset classes. [2]

Investor demand has played a key role in this transformation, along with efforts from agencies such as the U.S. Securities and Exchange Commission (SEC) to enhance accountability and engender trust. In the first half of 2022, the SEC released its landmark proposal for climate risk disclosure: a proposal that, if enacted, would elevate the timeliness and rigor of ESG reporting to that of financial reporting. While written with U.S. public issuers at the forefront, the proposal has powerful implications for private equity firms, and it is time to prepare.

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Corporate Tax Breaks and Executive Compensation

Eric Ohrn is an Associate Professor of Economics at Grinell College. This post is based on his recent paper, forthcoming in the American Economic Journal. Related research from the Program on Corporate Governance includes Pay Without Performance: The Unfulfilled Promise of Executive Compensation and Executive Compensation as an Agency Problem both by Lucian A. Bebchuk and Jesse M. Fried.

Corporate Tax Breaks Increase Executive Compensation

Over the past 40 years, the value of compensation packages awarded to corporate executives in the US has risen dramatically. At the same time, a less well-known trend has shaped the US economy: in the presence of increased pretax corporate profits, effective corporate income tax rates have decreased significantly.

These trends motivate an obvious, but empirically unaddressed question: Do corporate tax breaks increase executive compensation? There is, of course, mechanical reason to believe this relationship exists. Corporate tax breaks increase after-tax income that can be used to increase executive compensation via either a competitive market for managerial talent or rent capture by the executives.

Understanding whether and to what extent tax breaks are used to increase executive compensation is important as policymakers, ostensibly, design corporate tax breaks to incentivize desired behaviors such as job creation, capital investment, or the adoption of clean energy sources, rather than to pad the pockets of corporate executives. Answers to these questions are also timely as the Tax Cuts and Jobs Act (TCJA) has accelerated the decline in effective corporate tax rates in the US and placed additional downward pressure on corporate tax rates worldwide.

In a new study, I address this question by measuring the effect of two recent US federal corporate tax expenditures (or “breaks”) on the value of compensation awarded to executives at large publicly traded corporations. I find both corporate tax breaks significantly increase executive compensation. I estimate that for every dollar generated by the tax breaks, compensation of the top five highest paid executives at publicly traded US firms increased by 17 to 25 cents.

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Despite Slowdown in SPAC Activity, Opportunities Remain

Christopher M. BarlowC. Michael Chitwood, and Gregg A. Noel, are partners at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on a Skadden memorandum by Mr. Barlow, Mr. Chitwood, Mr. Noel, Raquel FoxHoward L. Ellin, and P. Michelle Gasaway. Related research from the Program on Corporate Governance includes SPAC Law and Myths (discussed on the Forum here) by John C. Coates.

Key Points

  • SPAC activity continued to slow in the first half of 2022, a sharp decline from the number of deals and IPOs in the same period in 2021. Redemption rates soared, and a record number of SPAC deals were terminated.
  • Factors contributing to the slowdown include disappointing performance by newly de-SPACed companies, rising inflation, macroeconomic uncertainty and increased regulatory scrutiny from the SEC.
  • Lawsuits and demands continue throughout the SPAC life cycle. Filings of SPAC-related securities lawsuits through the first half of 2022 are on pace to exceed the total number of SPAC-related lawsuits filed in 2021.
  • SPAC participants have to consider the new 1% excise tax on stock buybacks by U.S. public corporations starting in 2023.
  • Despite the challenges, opportunities remain in the SPAC market, and we expect participants will continue to explore innovative strategies to pursue transactions.

Slowdown in SPAC Activity in the First Half of 2022

The first half of 2022 experienced a slowdown in SPAC activity when compared to recent years. Only 77 de-SPAC M&A deals were announced in the first half of 2022, compared to 167 de-SPAC transactions in the same period of 2021. In addition, only 69 SPAC IPOs were priced in the first half of 2022, compared to 362 SPAC IPOs priced in the first half of 2021. [1]

2022 has also had the highest number of withdrawn SPAC deals on record, with 143 SPAC IPOs withdrawn and 46 de-SPAC transactions terminated through the end of August 2022. SPACs that went public during the SPAC boom of 2020 are now approaching their deadlines to complete initial business combinations and must make the choice to either seek an extension (and likely see high redemptions) or dissolve.

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Private Company Board Compensation and Governance

Susan Schroeder and Bertha Masuda are partners and Bonnie Schindler is principal at Compensation Advisory Partners. This post is based on a CAP report by Ms. Schroeder, Ms. Masuda, Ms. Schindler, Mr. Evans and Mr. Brown.  Related research from the Program on Corporate Governance includes The Perils and Questionable Promise of ESG-Based Compensation (discussed on the Forum here) by Lucian A. Bebchuk and Roberto Tallarita; and Paying for Long-Term Performance (discussed on the Forum here) by Lucian A. Bebchuk and Jesse M. Fried.

Introduction

Board members at privately held and family-owned companies play an important role in governance and oversight and should be appropriately compensated for their contributions and efforts. However, the appropriate amount of compensation has been difficult to determine due to the lack of available market data on private company board pay.

To address this data deficiency, Compensation Advisory Partners (CAP) and Family Business and Private Company Director magazines conducts our Private Company Board Compensation and Governance Survey. The new 2022 third edition of the survey contains over 1,200 responses, an increase of about 300 participants from the prior full version of the survey in 2020. The high number of survey participants illustrates the enthusiasm and need for this data.

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Green Energy Depends on Critical Minerals. Who Controls the Supply Chains?

Adnan Mazarei is a nonresident senior fellow at the Peterson Institute for International Economics, and Luc Leruth is a visiting resident scholar at the International School of Economics at Tbilisi University and an associate researcher at the University of Clermont-Ferrand. This post is based on a recent paper by Mr. Mazarei, Mr. Leruth, Pierre Régibeau, chief competition economist in DG Competition at the European Commission, and Luc Renneboog, Professor of Corporate Finance at Tilburg University and associate researcher at the European Corporate Governance Institute.

With the accelerating transition away from fossil fuels, awareness of the role of minerals critical to the production of clean energy (including cobalt, copper, lithium, nickel, and rare earth elements) has increased. There is a sharper focus on rising prices; production; delivery delays; as well as on the vulnerability of their supply chains. The Russian invasion of Ukraine has exacerbated these concerns.

Several of the factors that increase the risks to the stability and reliability of the supply chains of green energy are well researched. These include geographical concentration of the main components of the supply chain; climate risks; and environmental, social, and governance (ESG) issues. The concentration of production in one or a few countries makes the supply chains relying on those minerals vulnerable not only to market power and logistical risks but also to geopolitically induced disruptions, especially through trade restrictions.

The issue of who ultimately controls the production of minerals and the governance context in which they operate are also very important but much less researched. Production of a mineral could be widely dispersed globally, but a particular entity (a holding company or a few competing companies located in a country where authorities have the power to force a coalition if it suits their geopolitical interest) may have ultimate control (including through subsidiaries) over the decisions of the top firms producing that mineral, even if they are in different countries. That entity would then have a high degree of control, including market power, over the global production of that mineral and the supply chains that use it. More generally, there is a risk associated with imperfect information about entities that control a (mining) process, including their ultimate objectives, the geopolitical tendencies of the country in which they are located, and the length of time they intend to hold the controlling shares.

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Voluntary ESG “Materiality” Assessments — Legal Considerations and Dos and Don’ts

Paul A. Davies, Sarah E. Fortt, and Betty M. Huber are partners and Global Co-Chairs of Latham & Watkins’ Environmental, Social, and Governance practice. This post is based on a Latham memorandum by Mr. Davies, Ms. Fortt, Ms. Huber, Mr. Green, Ms. Grewal and Mr. Pierce. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance (discussed on the Forum here) by Lucian A. Bebchuk and Roberto TallaritaDoes Enlightened Shareholder Value add Value (discussed on the Forum here) and Stakeholder Capitalism in the Time of COVID (discussed on the Forum here) both by Lucian A. Bebchuk, Kobi Kastiel and Roberto Tallarita; Restoration: The Role Stakeholder Governance Must Play in Recreating a Fair and Sustainable American Economy – A Reply to Professor Rock (discussed on the Forum here) by Leo E. Strine, Jr., and Corporate Purpose and Corporate Competition (discussed on the Forum here) by Mark J. Roe.

ESG and Legal Liability Risks

As ESG continues to grow in importance, regulators, investors, and other stakeholders have increasingly sharpened their scrutiny of companies’ ESG actions and reporting. ESG-related disclosures have already triggered claims based on public reporting (or the absence of public reporting) in both formal and informal venues. Additionally, public watchdog groups will likely double down on their attempts to bring about ESG reform via litigation geared towards marketing and other representations. A well-conducted ESG materiality assessment serves as a key step in a company’s process of understanding the ESG risks and opportunities relevant to its business and stakeholders, and in managing possible ESG-related legal liability risks.

While “ESG materiality assessment” has become a term of art, companies should take care to clarify that the term materiality in this context is intended to reflect priority ESG issues, and specifically flag that the term does not carry the same meaning as it does under securities and other laws in the US or other jurisdictions.

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