Daily Archives: Wednesday, August 24, 2022

ESG Ratings: A Compass without Direction

Brian Tayan is a researcher with the Corporate Governance Research Initiative at Stanford Graduate School of Business. This post is based on a recent paper by Mr. Tayan; David Larcker, Professor of Accounting at Stanford Graduate School of Business; Edward Watts, Assistant Professor of Accounting at Yale School of Management; and Lukasz Pomorski, Lecturer at Yale School of Management.

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 Bebchuk, Kobi Kastiel, and Roberto Tallarita.

ESG ratings are intended to provide information to market participants (investors, analysts, and corporate managers) about the relation between corporations and non-investor stakeholders interests. They do so by sifting masses of data to extract insights into various elements of environmental, social, and governance performance and risk. Investors rely on this information to make investment decisions, while corporations use ratings to gain third-party feedback on the quality of their sustainability initiatives.

Recently, ESG ratings providers have come under scrutiny over concerns of the reliability of their assessments. In this post, we examine these concerns. We review the demand for ESG information, the stated objectives of ESG ratings providers, how ratings are determined, the evidence of what they achieve, and structural aspects of the industry that potentially influence ratings. Our purpose is to help companies, investors, and regulators better understand the use of ESG ratings and to highlight areas where they can improve. We find that while ESG ratings providers may convey important insights into the nonfinancial impact of companies, significant shortcomings exist in their objectives, methodologies, and incentives which detract from the informativeness of their assessments.

Demand for ESG Information

Demand for ESG information has exploded in recent years. Ten years ago, the term ESG—although in existence—was rarely used by the investment community or in corporate boardrooms. Instead, public and professional interest was focused on the general concepts of corporate responsibility, sustainability, and impact investing. Only recently has the focus on ESG (environmental, social, and governance) as a unique concept come to the forefront and with it an explosion in the demand for information (see Exhibit 1).

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Top 5 SEC Enforcement Developments

Jina Choi, Michael D. Birnbaum, and Haimavathi V. Marlier are partners at Morrison & Foerster LLP. This post is based on their MoFo memorandum.

In order to provide an overview for busy in-house counsel and compliance professionals, we summarize below some of the most important SEC enforcement developments from the past month, with links to primary resources. This month we examine:

  • A framework for CCO liability;
  • Whether scheme liability claims under Rule 10b-5 require more than misstatements or omissions;
  • Charges against a former Coinbase product manager in a crypto asset insider trading action;
  • A blast of insider trading actions generated by the SEC’s own data analysis; and
  • Fines for three financial institutions for inadequate identity theft controls, in violation of Regulation S-ID.

1. SEC Holds Chief Compliance Officer (CCO) Liable for Failing to Implement Policies and Procedures

On July 1, 2022, Commissioner Hester M. Pierce issued a statement in support of a settled administrative hearing brought the day before against Hamilton Investment Counsel LLC (“Hamilton”), a registered investment adviser based in Georgia, and its CCO. Hamilton was found to have violated Section 206(4) of the Investment Advisers Act of 1940 and Rule 206(4)-7 thereunder, which require that registered investment advisers adopt and implement written compliance policies and procedures reasonably designed to prevent violations of the Advisers Act; the CCO was charged with aiding and abetting those violations. Commissioner Pierce’s support of this action is significant given her prior statements setting forth her concerns regarding personal liability for CCOs and her analysis of how one framework could be adopted for this analysis.

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DOL Proposes Significant Amendments to Prominent ERISA Exemption

Brian Robbins and Erica Rozow are partners and George Gerstein is senior counsel at Simpson Thacher & Bartlett LLP. This post is based on a Simpson Thacher memorandum by Mr. Robbins, Ms. Rozow, Mr. Gerstein, and Jeanne Annarumma.

On July 27, 2022, the U.S. Department of Labor (the “DOL”) proposed major changes (the “Proposal”) [1] to a core exemption used by many investment managers that have discretionary responsibility over the assets of funds and accounts that are deemed to hold “plan assets” under the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”). [2] The exemption, commonly known as the “QPAM Exemption,” [3] allows a manager of a “plan assets” fund or account (i.e., the “QPAM”) to enter into a myriad of transactions on behalf of the fund/account that would otherwise be prohibited under Section 406(a) of ERISA and Section 4975 of the U.S. Internal Revenue Code of 1986, as amended.

Should the DOL finalize these amendments, those that manage “plan assets” on a discretionary basis should reconsider whether it can, or is willing to, continue relying on the QPAM Exemption. Moreover, investment managers would most likely need to revise investment management agreements and provisions in ISDAs and other trading agreements, if representations regarding QPAM-status are included. Private fund sponsors will also be affected, namely, they will need to (i) evaluate whether the QPAM Exemption remains available, if a fund holds “plan assets,” and, if not, whether an alternative exemption may be available, (ii) revise, as necessary, subscription and offering documents that refer to the QPAM Exemption, and (iii) consider whether any of its portfolio companies act or intend to act as a QPAM and whether such companies can continue doing so. [4]

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