Weekly Roundup: August 5

This roundup contains a collection of the posts published on the Forum during the week of August 5 – 11, 2022.

Chancery Decision Expands the Court’s Approaches on Director Independence

Posted by Gail Weinstein, Steven J. Steinman, and Brian T. Mangino, Frank, Harris, Shriver & Jacobson LLP, on Friday, August 5, 2022

Tags: Delaware cases, Delaware law, DGCL Section 220, Fiduciary duties, Merger litigation, Mergers & acquisitions, Shareholder activism, Short-termism

SEC Expects to Issue Final Clawback Regulations by October ’22

Posted by Mike Kesner and John Ellerman, Pay Governance LLC, on Friday, August 5, 2022

Tags: Clawbacks, Dodd-Frank Act, Executive Compensation, Restatements, SEC, SEC rulemaking, Securities enforcement, Securities regulation

Amendments to Form 13F

Posted by Stephen P. Wink and Naim Culhaci, Latham & Watkins LLP, on Saturday, August 6, 2022

Tags: Disclosure, Form 13F, Fund managers, Institutional Investors, Investment advisers, SEC, Securities regulation

Back to Basics: Board Committees

Posted by Natalie Cooper and Robert Lamm (Deloitte LLP), and Randi Val Morrison (Society for Corporate Governance), on Saturday, August 6, 2022

Tags: Audit committee, Board dynamics, Board oversight, Board performance, Boards of Directors, Compensation committees, Risk oversight, Surveys

SEC Proposes Narrowing Grounds for Excluding Shareholder Proposals

Posted by Richard Alsop, Harald Halbhuber, and Lona Nallengara, Shearman & Sterling LLP, on Sunday, August 7, 2022

Tags: ESG, Institutional Investors, No-action letters, Rule 14a-8, SEC, SEC rulemaking, Securities regulation, Shareholder proposals, Shareholder voting

SEC Reverses Aspects of Proxy Voting Advice Regulations

Posted by Marc Treviño and Bob Downes, Sullivan & Cromwell LLP, on Monday, August 8, 2022

Tags: Disclosure, Proxy advisors, Proxy voting, Rule 14a-2, SEC, SEC rulemaking, Securities regulation, Shareholder voting

Does ESG Negative Screening Work?

Posted by Robert Eccles (Oxford University), Shivaram Rajgopal (Columbia University), and Jing Xie (Hong Kong Polytechnic University), on Monday, August 8, 2022

Tags: Corporate Social Responsibility, ESG, Firm performance, Institutional Investors, Reputation, Responsible investing

Welcoming the Universal Proxy

Posted by Kai Liekefett, Derek Zaba, and Leonard Wood, Sidley Austin LLP, on Monday, August 8, 2022

Tags: Institutional Investors, Proxy contests, Proxy voting, SEC, SEC rulemaking, Securities regulation, Shareholder activism, Shareholder nominations, Shareholder voting, Universal proxy ballots

Emerging Fraud Risks to Consider: ESG

Posted by Michael Brodsky and Amy Edwards, Deloitte, on Tuesday, August 9, 2022

Tags: Audit committee, Audits, Climate change, Corporate fraud, Cybersecurity, ESG, Greenwashing, Human capital, Risk, Risk oversight

Hidden Gems: Do Compensation Disclosures Reveal Performance Expectations?

Posted by C. Edward Fee (Tulane University), Zhi Li (Chapman University), and Qiyuan Peng (University of Dayton), on Tuesday, August 9, 2022

Tags: Compensation disclosure, Disclosure, Earnings announcements, Equity-based compensation, Executive Compensation, Firm performance, Incentives, Information environment, Pay for performance

Delaware and Caremark: An Update

Posted by Theodore N. Mirvis, David A. Katz, and Sabastian V. Niles, Wachtell, Lipton, Rosen & Katz, on Tuesday, August 9, 2022

Tags: Board oversight, Boards of Directors, Compliance & ethics, Corporate liability, Delaware cases, Delaware law, In re Caremark, Risk

Second Circuit on Stating a Claim for Scheme Liability

Posted by Israel David, Samuel P. Groner, and Harrison D. Polans, Fried, Frank, Harris, Shriver & Jacobson LLP, on Wednesday, August 10, 2022

Tags: Corporate liability, Disclosure, Liability standards, Rule 10b-5, SEC, SEC enforcement, Securities enforcement, Securities fraud, Securities litigation, Supreme Court, U.S. federal courts

The Market for CEOs: Evidence from Private Equity

Posted by Paul A. Gompers (Harvard Business School), Steven N. Kaplan (University of Chicago), and Vladimir Mukharlyamov (Georgetown University), on Wednesday, August 10, 2022

Tags: Executive Compensation, Executive turnover, Human capital, Labor markets, Management, Private equity

Twitter v. Musk: Plaintiff’s Response to Defendant’s Counterclaim

Posted by Anna Restuccia (Harvard Law School), on Wednesday, August 10, 2022

Tags: Adverse effects, Disclosure, Elon Musk, Materiality, Merger litigation, Mergers & acquisitions, Termination, Twitter

Proposed Amendments to the Shareholder Proposal Rules

Posted by Marc S. Gerber, Richard J. Grossman, and Raquel Fox, Skadden, Arps, Slate, Meagher & Flom LLP, on Thursday, August 11, 2022

Tags: Institutional Investors, No-action letters, Proxy voting, Rule 14a-8, SEC, SEC rulemaking, Securities regulation, Shareholder proposals, Shareholder voting

Statement by Commissioner Uyeda on Proposed Joint Amendments to Form PF

Posted by Mark T. Uyeda, U.S. Securities and Exchange Commission, on Thursday, August 11, 2022

Tags: CFTC, Disclosure, Form PF, Hedge funds, Institutional Investors, Private equity, Private funds, SEC, SEC rulemaking, Securities regulation

Statement by Chair Gensler on Proposed Joint Amendments to Form PF

Posted by Gary Gensler, U.S. Securities and Exchange Commission, on Thursday, August 11, 2022