Yearly Archives: 2022

Weekly Roundup: March 4-10, 2022


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This roundup contains a collection of the posts published on the Forum during the week of March 4-10, 2022.

SEC Proposes Additional Private Fund Disclosures


The Further Erosion of Investor Protection: Expanded Exemptions, SPAC Mergers, and Direct Listings


Women in the Boardroom: 2022 Update


Remarks by Commissioner Lee at PLI’s Corporate Governance


Biotech’s ESG Crossroads


SEC Proposes Amendments to Schedules 13D and 13G


Four Takeaways from the SEC’s Proposed Cybersecurity Rules


The Effect of Media-Linked Directors on Financing and External Governance


Gender Pay Gap


How Sarah Bloom Raskin’s Confirmation May Affect Climate-Related Banking Regulation


Board Diversity Matters: An Empirical Assessment of Community Lending at Federal Reserve-Regulated Banks


DOJ Delivers Stark Message About Corporate Cooperation



Workforce Diversity Data Disclosure


The Perils and Questionable Promise of ESG-Based Compensation


Proposed Rule Changes to SEC Beneficial Ownership Reporting


Statement by Commissioner Peirce on Proposal for Mandatory Cybersecurity Disclosures


Statement by Chair Gensler on Proposal for Mandatory Cybersecurity Disclosures

Statement by Chair Gensler on Proposal for Mandatory Cybersecurity Disclosures

Gary Gensler is Chair of the U.S. Securities and Exchange Commission. This post is based on his recent public statement. 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.

Today [March 9, 2022], the Commission is considering a proposal to mandate cybersecurity disclosures by public companies. I am pleased to support this proposal because, if adopted, it would strengthen investors’ ability to evaluate public companies’ cybersecurity practices and incident reporting.

We’ve been requiring disclosure of important information from companies since the Great Depression. The basic bargain is this: Investors get to decide what risks they wish to take. Companies that are raising money from the public have an obligation to share information with investors on a regular basis.

Over the years, our disclosure regime has evolved to reflect evolving risks and investor needs.

Today, cybersecurity is an emerging risk with which public issuers increasingly must contend. The interconnectedness of our networks, the use of predictive data analytics, and the insatiable desire for data are only accelerating, putting our financial accounts, investments, and private information at risk. Investors want to know more about how issuers are managing those growing risks.

Cybersecurity incidents, unfortunately, happen a lot. They can have significant financial, operational, legal, and reputational impacts on public issuers. Thus, investors increasingly seek information about cybersecurity risks, which can affect their investment decisions and returns.

A lot of issuers already provide cybersecurity disclosure to investors. I think companies and investors alike would benefit if this information were required in a consistent, comparable, and decision-useful manner.

Today’s release would enhance issuers’ cybersecurity disclosures in two key ways:

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Statement by Commissioner Peirce on Proposal for Mandatory Cybersecurity Disclosures

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

Thank you, Renee, Ian, and Jessica. Cybersecurity risk is top of mind for everyone. The Commission’s consideration of this topic—whether for investment advisers, as we did a month ago, [1] or public companies, as we are doing today—is, therefore, reasonable. We must approach this topic, of course, through the prism of our mission. We have an important role to play in ensuring that investors get the information they need to understand issuers’ cybersecurity risks if they are material. This proposal, however, flirts with casting us as the nation’s cybersecurity command center, a role Congress did not give us. Accordingly, I respectfully dissent.

Our role with respect to public companies’ activities, cybersecurity or otherwise, is limited. The Commission regulates public companies’ disclosures; it does not regulate public companies’ activities. Companies register the offer and sale, and classes of securities with the Commission; they themselves are not registered with us, and we do not have the same authority over public companies as we do over investment advisers, broker-dealers, or other registered entities.

The proposal, although couched in standard disclosure language, guides companies in substantive, if somewhat subtle, ways. First, the governance disclosure requirements embody an unprecedented micromanagement by the Commission of the composition and functioning of both the boards of directors and management of public companies. First, the proposal requires issuers to disclose the name of any board member who has cybersecurity expertise and as much detail as necessary to fully describe the nature of the expertise. Second, the proposal requires issuers to disclose whether they have a chief information security officer, her relevant expertise, and where she fits in the organizational chart. Third, the proposal requires granular disclosures about the interactions of management and the board of directors on cybersecurity, including the frequency with which the board considers the topic and the frequency with which the relevant experts from the board and management discuss the topic.

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Proposed Rule Changes to SEC Beneficial Ownership Reporting

Eleazer Klein and Adriana Schwartz are partners and Clara Zylberg is special counsel at Schulte Roth & Zabel LLP. This post is based on their SRZ memorandum. Related research from the Program on Corporate Governance includes The Law and Economics of Blockholder Disclosure by Lucian Bebchuk and Robert J. Jackson Jr. (discussed on the Forum here) and Pre-Disclosure Accumulations by Activist Investors: Evidence and Policy by Lucian Bebchuk, Alon Brav, Robert J. Jackson Jr., and Wei Jiang.

On Feb. 10, 2022, the Securities and Exchange Commission (“SEC”) proposed amendments to the rules governing beneficial ownership reporting (“Proposal”). [1] The Proposal seeks to:

  • Tighten filing deadlines for Schedule 13D and Schedule 13G;
  • Require inclusion of certain cash-settled derivative securities (other than cash settled swaps) in determining beneficial ownership for Schedule 13D filers and require disclosure of all cash settled derivative securities in Item 6 of Schedule 13D;
  • Clarify when persons form a “group”; and
  • Require that Schedules 13D and 13G be filed using a structured, machine-readable data language.

The following is an overview of the Proposal.

Initial Filing Deadlines

  • Schedule 13D. The Proposal shortens the Schedule 13D filing deadline from 10 days to 5 days following the acquisition of beneficial ownership of more than 5% or losing eligibility to file a Schedule 13G.
  • Institutional/Exempt Schedule 13G. The Proposal requires an initial Schedule 13G filing for institutional investors and exempt investors by the 5th business day after month-end in which their beneficial ownership exceeds 5% (in place of the current 45 days after the calendar-year-end in most circumstances).
  • Passive Schedule 13G. The Proposal shortens the initial Schedule 13G filing deadline for passive investors from 10 days to 5 days after acquiring beneficial ownership of more than 5%.

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The Perils and Questionable Promise of ESG-Based Compensation

Lucian Bebchuk is the James Barr Ames Professor of Law, Economics, and Finance and Director of the Program on Corporate Governance at Harvard Law School; and Roberto Tallarita is a Lecturer on Law and Associate Director of the Program on Corporate Governance at Harvard Law School. 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); Stakeholder Capitalism in the Time of COVID, by Lucian Bebchuk, Kobi Kastiel, and Roberto Tallarita (discussed on the Forum here); and Will Corporations Deliver Value to All Stakeholders?, by Lucian A. Bebchuk and Roberto Tallarita.

With the rising support for stakeholder capitalism and at the urging of its advocates, companies have been increasingly using ESG metrics for CEO compensation. In a recently released study, The Perils and Questionable Promise of ESG-Based Compensation, we provide a conceptual and empirical analysis of this practice, and we expose its fundamental flaws and limitations. The use of ESG-based compensation, we show, has questionable promise and poses significant perils.

Based partly on an empirical analysis of the use of ESG compensation metrics in S&P 100 companies, we identify two structural problems. First, ESG metrics commonly attempt to tie CEO pay to limited dimensions of the welfare of a limited subset of stakeholders. Therefore, even if these pay arrangements were to provide a meaningful incentive to improve the given dimensions, the economics of multitasking indicates that the use of these metrics could well ultimately hurt, not serve, aggregate stakeholder welfare.

Second, the push for ESG metrics overlooks and exacerbates the agency problem of executive pay, which have received closed attention from both scholars and policymakers. In particular, we warn that the use of ESG metrics threatens to reverse the progress achieved in the past few decades in making executive pay more transparent, more sensitive to actual performance, and more open to outside oversight and scrutiny.

To ensure that they are designed to provide effective incentives rather than serve the interests of executives, pay arrangements need to be subject to effective scrutiny by outsiders. However, our empirical analysis shows that in almost all cases in which S&P 100 companies use ESG metrics, it is difficult if not impossible for outside observers to assess whether this use provides valuable incentives or rather merely lines CEOs’ pockets through performance-insensitive pay. Encouraging and expanding the use of ESG-based compensation, we explain, gives self-interested executives a powerful tool to increase their payoffs without creating any significant incentives to deliver value to either stakeholders or shareholders.

The current use of ESG metrics, we conclude, likely serves the interests of executives, not of stakeholders. Expansion of ESG metrics should not be supported even by those who care deeply about stakeholder welfare.

Below is a more detailed account of our analysis:

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Workforce Diversity Data Disclosure

Kavya Vaghul is Senior Director of Research and Aleksandra Radeva and Kim Ira are Research Analysts at JUST Capital. This post is based on their JUST Capital memorandum. 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), and Duty and Diversity by Chris Brummer and Leo E. Strine, Jr. (discussed on the Forum here).

Key Findings

  • As of September 2021, the majority of companies in the Russell 1000 (55%) disclose some type of racial and ethnic workforce data, a notable increase since January 2021, when only 32% of companies disclosed racial and ethnic data.
  • Between September 2020 and September 2021, the share of companies disclosing an EEO-1 Report or Intersectional Data, the gold standard for demographic data reporting, has more than doubled, from 4% to 11%.
  • While EEO-1 Report or Intersectional Data disclosure has historically been concentrated in the Technology industry (24 companies at the time of this analysis), the number of companies disclosing this data in the Financials industry has nearly caught up, more than doubling between January 2021 and September 2021, from nine companies to 22 companies.

After a year and half of pledges and promises to help advance racial equity, totaling at least $50 billion in both internal and external initiatives, investors, regulators, employees, and other key stakeholders are still looking for signals of action from corporate America. For many, a first step is transparency around corporate diversity, equity, and inclusion (DEI) efforts and, in particular, around racial and ethnic workforce and board demographics as an indicator of the state of representation.

While stakeholders recognize that this is a work in progress for companies, and that they can’t expect perfection, they’re making it clear that they’re no longer willing to accept inaction or silence on what steps companies have taken. Of Americans JUST Capital and The Harris Poll surveyed, 84% agreed that companies “often hide behind public declarations of support for stakeholders but don’t walk the walk.” Shareholder proposals on DEI soared last proxy season. Following New York City Comptroller Scott Stringer’s call to 67 S&P 100 companies to share the racial, ethnic, and gender breakdown of their workforces, half of this group has either disclosed or committed to disclose this data. The SEC has noted that disclosure of human capital metrics—workforce-related data, policies, and practices—is a key area of focus and that it could be issuing standards for disclosure on these measures this year.

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SEC Proposes New Rules for Private Fund Advisers

David N. Solander is partner at McDermott Will & Emery LLP. This post is based on his MWE memorandum.

US Securities and Exchange Commission (SEC) Chairman Gary Gensler has ramped up an aggressive regulatory agenda that zeroes in on advisers to private funds. On February 9, 2022, the SEC commissioners approved several proposed rules under the Investment Advisers Act of 1940 (the Proposed Rules) which, if passed, would have significant effects on the operation of private funds. The Proposed Rules will include new requirements for investor quarterly statements, private fund audits, adviser-led secondaries, side letter practices and annual reviews, and the outright prohibition of certain activities. Several of the Proposed Rules will also apply to investment advisers not registered with the SEC, including venture capital fund advisers, smaller private fund advisers and many non-US advisers.

Below is a summary of the significant changes under the Proposed Rules. Comments to the Proposed Rules are due on the later of (a) 30 days after the Proposing Release is published in the Federal Register or (b) April 11, 2022.

In Depth

Prohibited Activities

Under the Proposed Rules, advisers to private fund managers (including SEC-registered and unregistered advisers) would be subject to the following:

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DOJ Delivers Stark Message About Corporate Cooperation

John F. Savarese, Ralph M. Levene, and Sarah K. Eddy are partners at Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell memorandum by Mr. Savarese, Mr. Levene, Ms. Eddy, David B. Anders, and Jeohn Salone Favors.

As we noted in our year-end post, DOJ previewed last fall a crackdown on corporate misconduct and the resurrection of Obama-era policies that make it harder for companies to earn cooperation credit and leniency.  Yesterday, speaking at the ABA Institute on White Collar Crime, Attorney General Merrick Garland and Assistant Attorney General for the Criminal Division Kenneth Polite furthered that message:  Companies under investigation must identify everyone connected to the suspected misconduct, and credit-worthy remediation may in some circumstances mean cleaning house at the top even where the most senior executives were not directly involved.

In his speech, AG Garland underscored DOJ’s renewed focus on individual corporate malefactors and announced that DOJ was backing this commitment with more funding, more investigative agents, more DOJ attorneys, and “force-multipliers” to support white-collar enforcement initiatives.  One force-multiplier is corporate cooperation:  “[T]o be eligible for any cooperation credit, companies must provide [DOJ] with all non-privileged information” about “all individuals” involved in or connected to the conduct under investigation, “regardless of their position, status, or seniority, and regardless of whether a company deems their involvement as ‘substantial.’”

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Board Diversity Matters: An Empirical Assessment of Community Lending at Federal Reserve-Regulated Banks

Brian D. Feinstein is Assistant Professor of Legal Studies & Business Ethics at The Wharton School of the University of Pennsylvania; Peter Conti-Brown is Class of 1965 Associate Professor of Financial Regulation and Associate Professor of Legal Studies & Business Ethics at The Wharton School of the University of Pennsylvania; and Kaleb Nygaard is a Research Associate at the Yale Project on Financial Stability. 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); and Duty and Diversity by Chris Brummer and Leo E. Strine, Jr. (discussed on the Forum here).

A crucial set of questions in banking law and corporate governance is what effect, if any, does the diversity of decisionmakers have on specific outcomes. The challenge in answering the question, though, is that the more senior these decisionmakers become, the further removed they are from the policy outcomes whose consequences we want to predict. These two areas are important examples of this phenomenon: in corporate governance, the diversity of corporate boards is a perennial question, despite the reality that boards function far removed from corporate decision-making. In banking, it is even more complex: given how much the public and private sectors interact in formulating bank policy, what is the consequence of the diversity of regulators?

In Board Diversity Matters: An Empirical Assessment of Community Lending at the Federal Reserve-Regulated Banks, we exploit some idiosyncratic aspects of US banking to render these questions answerable. We conclude that the increased presence of minority directors on the twelve regional Federal Reserve Banks—the quasi-governmental entities responsible for evaluating many commercial banks’ lending to underserved, and disproportionately majority-minority, communities—is associated with greater lending to these communities. In other words, the more diverse these boards, the better the outcomes for underserved minorities.

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How Sarah Bloom Raskin’s Confirmation May Affect Climate-Related Banking Regulation

Jason Halper and Rachel Rodman are partners and Sara Bussiere is an associate at Cadwalader, Wickersham & Taft LLP. This post is based on a Cadwalader memorandum by Mr. Halper, Ms. Rodman, Ms. Bussiere, Daniel Meade, Timbre Shriver, and Victor Celis. 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?, both by Lucian A. Bebchuk and Roberto Tallarita; 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).

On February 3, 2022, the U.S. Senate Committee on Banking, Housing, and Urban Affairs (the “Committee”) considered President Biden’s nomination of Sarah Bloom Raskin for Vice Chair for Supervision and a Member of the Board of Governors of the Federal Reserve System (the “Federal Reserve”), along with the nominations of Dr. Lisa Cook and Dr. Philip Jefferson to be members of the Board of Governors. [1] Ms. Raskin, a former deputy secretary of the U.S. Department of Treasury and former governor of the Federal Reserve Board, seemed to be more controversial than her fellow nominees given her past statements arguing that the Federal Reserve, and other bank regulators, should take a more active role in promulgating regulations aimed at climate-related financial risks. [2] The Committee was scheduled to vote on February 15, 2022 to move President Biden’s nominees out of committee to the full U.S. Senate, but Republican committee members boycotted the vote, delaying a full Senate vote. [3]

In a May 2020 op-ed, Ms. Raskin questioned efforts to amend the Federal Reserve’s Main Street Lending Program that would allow companies in the fossil fuel industry to receive loans from the Federal Reserve. [4] She later opined that “. . . all US regulators can—and should—be looking at their existing powers and considering how they might be brought to bear on efforts to mitigate climate risk.” [5]

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