Monthly Archives: June 2022

Weekly Roundup: May 27-June 2, 2022


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This roundup contains a collection of the posts published on the Forum during the week of May 27-June 2, 2022.

Statement by Commissioner Peirce on Proposed Updates to Names Rule


Statement by Chair Gensler on Proposed Updates to Names Rule


Repricing Underwater Options


2021 Climate & Voting Review and Global Trends


Top Three ESG Legal Issues to Watch in 2022


Board Gender Diversity


Transparency Paves the Road to Net Zero


Corporate Governance Update: Solving the Board Composition Puzzle


Board Gatekeepers


ESG Task Force “Lifts the Vale” on Its Scrutiny of ESG Disclosures



The Modern State and the Rise of the Business Corporation


Revisiting the Board’s Oversight Role After In re: Boeing Co.


Conducting Effective Board Assessments


Executive Stock Options and Systemic Risk


Climate Stewardship

Climate Stewardship

Benjamin Colton is Global Head of Asset Stewardship, and Devika Kaul and Michael Younis are Vice Presidents in Asset Stewardship at State Street Global Advisors. This post is based on their SSgA memorandum.

Climate change is a key systemic risk, representing both a strategic and business challenge for all companies in our portfolios. Since 2014, we have prioritized climate change as a core theme of our stewardship activities.

Voting and Engagement

Voting Policy

We believe climate change poses a systemic risk to all companies in our portfolios. The Task Force for Climate-related Financial Disclosures (TCFD) framework has become table stakes for any climate-related discussion, with investors increasingly using this new information to tilt, or even transform, their portfolios for the future. To drive broad climate action and TCFD adoption in the market, we will begin taking voting action in 2022 against companies in major indices in the US, Canada, UK, Europe, and Australia, if companies fail to meet our climate-related disclosure expectations.

As is typical across ESG issues, we will first approach our climate-related disclosure expectations with companies through engagements. If we encounter laggards that are not making sufficient progress as a result of our engagements, we will consider taking action using our votes, either by supporting relevant shareholder proposals or voting against directors at an upcoming shareholder meeting.

Our Voting Record on Climate-related Shareholder Proposals

100+

Climate-related shareholder proposals submitted to our portfolio companies going to vote during 2021

49%

Climate-related proposals we supported in 2021

54%

Proposals requesting GHG emissions reduction targets we supported in 2021

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Executive Stock Options and Systemic Risk

Christopher Armstrong is the EY Professor of Accounting, and Allison Nicoletti and Frank Zhou are Assistant Professors of Accounting at the Wharton School of the University of Pennsylvania. This post is based on their recent paper, forthcoming in the Journal of Financial Economics. Related research from Program on Corporate Governance includes The CEO Pay Slice by Lucian Bebchuk, Martijn Cremers and Urs Peyer (discussed on the Forum here); and Golden Parachutes and the Wealth of Shareholders by Lucian Bebchuk, Alma Cohen, and Charles C. Y. Wang (discussed on the Forum here).

Banks’ role in financial intermediation and the provision of other specialized financial services not only places them at the center of many important global financial markets, but also ties their health to that of other financial institutions, industrial firms, and consumers. The vast reach of banks’ activities was made apparent during the financial crisis of 2007-2009, which also highlighted the acute need for a better understanding of whether, how, and the extent to which banks contribute to systemic risk in the economy (i.e., the risk that many financial institutions fail together). Prior research into the sources of systemic risk largely focuses on the outcomes of banks’ risky activities (e.g., the composition of banks’ financing or the correlation of banks’ asset returns). However, these and other risky activities are ultimately the result of bank managers’ decisions which, we argue, are shaped by their contractual incentives. Following this intuition, we study whether and how bank executives’ compensation contracts lead to the systemic risk of their institutions.

We do so by focusing on bank executives’ equity portfolio (i.e., stock and option) “vega,” which captures the sensitivity of their equity portfolio’s value to their firm’s stock return volatility. We expect to find a positive relationship because the highly levered nature of banks’ capital structure should encourage the pursuit of activities that could entail systemic risk. In addition, compensation contracts enhance strategic complementarities in bank risk-taking; that is, one bank’s increased risk encourages other banks to do likewise, thereby increasing the overall systemic risk in the industry.

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Conducting Effective Board Assessments

Maria Castañón Moats is Leader, Paul DeNicola is Principal, and Catie Hall is Director of the Governance Insights Center, PricewaterhouseCoopers LLP. This post is based on their PwC memorandum.

Board and committee assessments are a critical part of driving continuous improvement in board performance. A well-executed assessment can help provide real insights into how a board operates and how directors work with one another. It will include both quantitative and qualitative aspects. And it leads to actionable takeaways that can make a real difference.

In our 2021 Annual Corporate Directors Survey, 47% of directors indicated that at least one of their peers should be replaced. Having a robust assessment framework shouldn’t be viewed as a way to get rid of underperformers. Rather, it should be viewed as a means to provide constructive feedback as part of the board’s continuous improvement process. Many directors tend to view assessments in a “check-the-box” manner and believe it’s difficult to be frank. [1]

So what are the leading practices? And, how are boards using assessments to become more efficient, evaluate gaps in board composition and improve their oversight of management?

What is the purpose of the assessment?

From the start, it’s essential for directors to agree on what they want to address in the assessment process. Some of the most common areas of focus include:

  • Evaluating board composition. The makeup of the board is critical. Boards need a mix of skills, expertise and experience to effectively oversee the company. Understanding any gaps is the first step to ensuring optimal board composition. Looking at board composition also provides an opportunity to address director underperformance and gives the board a perspective on where they may want to make changes.
  • Setting and monitoring board culture. Assessments are a great opportunity to look at board culture and dynamics. Does the culture encourage open discussion and disagreement? Does it promote continuous improvement, open feedback and coaching? Does it promote collaboration and information sharing? Or does it have directors who dominate discussions, closing off other points of view?
  • Improving board practices. Boards may also use assessments to analyze the quality and quantity of materials they receive from management, evaluate their governance practices or consider process changes to make going forward. Assessments can be used to determine if boards are using their time during meetings on the right topics and whether their agendas are balanced to include strategic, compliance and tactical topics.
  • Planning for board succession. Board assessments can be instrumental in board succession planning—helping to identify what skills and backgrounds will be required based on the company’s long-term strategy. And assessments can encourage boards to move to a more strategic and less reactive approach to board succession. In fact, nearly three-quarters (73%) of directors say conducting a full board or committee assessment is an effective way to promote board refreshment. [2]

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Revisiting the Board’s Oversight Role After In re: Boeing Co.

Cynthia Mabry, Kerry Berchem and John Goodgame are partners at Akin Gump Strauss Hauer & Feld LLP. This post is based on their Akin Gump 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 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 by Leo E. Strine, Jr. (discussed on the Forum here); and Stakeholder Capitalism in the Time of COVID, by Lucian Bebchuk, Kobi Kastiel, and Roberto Tallarita (discussed on the Forum here).

Recent rulings in the United States and overseas, coupled with the Securities and Exchange Commission’s (SEC) recently proposed disclosure rules covering climate-risk disclosures, underscore the attention boards of directors and management must continue to pay to climate change and its potential impact on business operations and the risks faced by companies across all sectors of the economy. Obviously, the energy industry is acutely attuned to these issues and last year’s decision in In re: Boeing Co. Derivative Litigation (discussed in detail below) only serves as the most recent reminder of the potential exposures (including personal liability) companies, boards of directors and management may face when they fail to consider these issues seriously.

May 26, 2021, marked the first time that a court imposed a bright-line emissions reduction requirement on a private corporation unrelated to an independent statutory or regulatory mandate. The District Court of The Hague ruled that Royal Dutch Shell must uphold a duty of care owed to Dutch citizens to reduce its carbon dioxide (CO2) emissions. The District Court of The Hague grounded the obligation in the “unwritten standard of care” enshrined in Dutch tort law that dictated “what may be expected of [Shell] . . . with respect to Dutch residents.” In its decision the District Court of The Hague considered a number of factors, including Shell’s and other actors’ contributions to and responsibilities for climate change, human rights concerns, climate science, regulatory pathways to address climate change and feasibility. The District Court of The Hague criticized Shell’s existing policy for merely monitoring developments, for being intangible and undefined, and for allowing other parties to take the lead in addressing climate change. Ultimately the District Court of The Hague ordered Shell to enact a new policy to address climate change.

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The Modern State and the Rise of the Business Corporation

Taisu Zhang and John Morley are Professors of Law at Yale Law School. This post is based on their recent paper, forthcoming in the Yale Law Journal.

The two great institutions of modernity are the corporation and the state. Together, these twin behemoths account for much of the bureaucracy, market-based exchange, impersonal social interaction, centralized power, and formal equality that characterize the experience of modern life.

In a new paper forthcoming in the Yale Law Journal, we ask why these two institutions tend so often to appear together. We show that throughout history, the rise of the modern state has almost always been a necessary precondition for the rise of the modern business corporation. In many different societies at many different times, businesspeople were unable to successfully form and operate modern business corporations until they have gained the support of modern states.

We argue that the linkage between the corporation and the state is a consequence of the modern state’s extraordinary capacity to enforce the law uniformly among a corporation’s many shareholders. In a modern corporation, large numbers of strangers from different social communities share ownership of residual claims in a single enterprise with guarantees of asset partitioning. This pattern of organization requires the rules of the corporate bargain to be enforced uniformly across the many stranger-owners. Because ownership of a corporation is zero sum, if one shareholder bends the law in order to take more, the other shareholders must necessarily suffer the consequences by taking less. Many prospective owners will therefore only cooperate if they believe the rules of the corporate bargain will be enforced uniformly.

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How Universal Proxy Card Notices Work

Michael R. Levin is founder and editor of The Activist Investor. Related research from the Program on Corporate Governance includes Universal Proxies by Scott Hirst (discussed on the Forum here).

Like all good and sound SEC regulations, the one on Universal Proxy Cards (UPC) calls for some new notices—to shareholders, from the company, among activist investors, to the SEC, etc. etc.

The new UPC rule has some novel notice requirements for activists. Others are similar to existing notice processes. Complying with these should be straightforward. Yet, it’s not hard to miss one or another of these, and then it’s difficult and possibly fatal for a proxy contest. Best to know the notice structure and plan ahead well.

Here we explain how these notices work, as simply as we can. Citations below refer to sections, pages, and footnotes in the final regulation. You can find more resources at universalproxycard.com.

Notices serve two purposes

First, UPC means the company and activist (or multiple activists) must present the same list of BoD nominees to shareholders. So, they need to exchange that information far enough ahead of a shareholder meeting to allow each to include all nominees. This is new and unique to the UPC.

Second, the activist needs to inform shareholders about its nominees, which might seem obvious. The particulars of the UPC rule makes it a little tricky. In short, the SEC requires an activist to handle an existing notice (proxy statement) in a new way.

You see, while the SEC requires all nominee names on the UPC, that’s it. The rule doesn’t require anything further, like biographical data. So, shareholders receive a company proxy statement with all the usual information, including glorious detail about the company nominees. They receive a company UPC listing those nominee names.

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