Yearly Archives: 2023

Political grammars of justification and cost-benefit analysis in SEC rulemaking

Lisa Baudot is an Associate Professor of Accounting and Management Control at HEC Paris, and Dana Wallace is an Associate Professor of Accounting at University of Central Florida Kenneth G. Dixon School of Accounting. This post is based on their article forthcoming in the Journal of Accounting and Public Policy.

Evidence-based policymaking suggests an objective and systematic form of governing that upholds the authority of evidence in legitimizing regulatory decisions. Financial regulators confront contemporary trends and pressures to justify regulatory decisions in an evidence-based manner using cost-benefit analysis (CBA). However, as a mechanism for justifying financial regulation, CBA elicits polarized views. On the one hand, CBA is a quantified, scientific, and objective endeavor that reduces opportunities for regulatory capture and acts in a disciplinary capacity over regulators. However, in projecting the impacts of any given rule, it is difficult to achieve a fully quantified analysis of the benefits and costs of regulation, a problem that may be compounded when the impacts are social as well as economic. In considering that social benefits and costs may not lend well to quantification, we focus a new paper on understanding the discursive and justificatory aspects of CBA in relation to contemporary regulations purported to have important social implications.

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Corporate Governance Standards Proposed by FDIC

Lawrence A. Cunningham is Special Counsel, and Matthew Bisanz and Jeffrey Taft are Partners at Mayer Brown LLP. This post is based on a Mayer Brown memorandum by Mr. Cunningham, Mr. Bisanz, Mr. Taft, Anna Pinedo, Megan Webster, and Andrew Olmem.

On October 3, 2023, the Federal Deposit Insurance Corporation (“FDIC”) proposed standards for corporate governance and risk management for the institutions it regulates that have $10 billion or more in total assets (“Proposed Standards”).[1] The Proposed Standards would establish extensive and rigid requirements for a wide range of state-chartered banks.[2] Further, they would reverse decades of reliance on state law for establishing governance and oversight obligations. The FDIC board approved issuing the Proposed Standards by a 3-2 vote with Vice Chairman Travis Hill and Director Jonathan McKernan issuing dissents sharply critical of the proposals.[3]

The Proposed Standards lean toward a rules-based approach to corporate governance, in contrast to the principles-based approach that is prevalent under state law. Critics will observe that the Proposed Standards are presented as “good corporate governance” without appreciating that what is “good” for one bank may not be “good” for another and that achieving “good corporate governance” results not from uniform regulatory mandates but from default rules that can be tailored and fiduciary duties that can be fit.

The FDIC will accept comments on the Proposed Standards for 60 days after they are published in the Federal Register, which is expected shortly. In this Legal Update, we provide background on governance and risk management at state-chartered banks and discuss the Proposed Standards.

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Anthropic Long-Term Benefit Trust

John Morley is a Professor of Law at Yale Law School. David J. Berger and Amy L. Simmerman are Partners at Wilson Sonsini Goodrich & Rosati.

Artificial intelligence promises to be one of the most transformative technologies of our time. Can corporate governance evolve to ensure that it develops safely and responsibly? Anthropic, PBC, one of America’s leading AI labs, offers an innovative answer. This post describes the company’s attempt to fine-tune the levers of corporate governance through a novel arrangement called the “Anthropic Long-Term Benefit Trust.” The Trust brings together a group of experts in AI and ethics and grants them the power over time to elect a majority of Anthropic’s board of directors. We served as outside counsel for Anthropic in designing and drafting this arrangement.[1] This post outlines some of the key components of the Trust and the company’s motives for adopting it.

The Trust’s origins began with a deep commitment among Anthropic’s founders to social good. Anthropic’s founders believe that AI may soon become immensely powerful. They also acknowledge, however, that the companies developing AI have yet to be limited from the outside by the sorts of laws and norms that constrain other powerful technologies. The founders further believe that the safety and social benefit of AI technology go hand in hand with profits and commercial success. Anthropic can only be a leader on safety if it is also a leader in technical development and commercialization. Anthropic thus wanted to design a legal architecture that could commit the company to safety and responsibility while also allowing to achieve profits for investors.

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Implementation of Share Buybacks and Their Impact on Corporate Governance

Michael Seigne is the Founder of Candor Partners Limited, and Joerg R. Osterrieder is Professor of Finance and Artificial Intelligence at the University of Twente. Related research from the Program on Corporate Governance includes Short-Termism and Capital Flows (discussed on the Forum here) by Jesse Fried and Charles C. Y. Wang; and Share Repurchases, Equity Issuances, and the Optimal Design of Executive Pay (discussed on the Forum here) by Jesse Fried.

In recent decades, share buybacks have emerged as a global corporate phenomenon, albeit one accompanied by escalating controversy. While companies put forth various reasons for pursuing share buybacks, it is the argument that frames them as an attractive alternative to dividends for returning capital to shareholders that generates the most contention. The flexibility for the company and potential tax advantages offered to investors in certain scenarios are among the touted benefits. In this article, we shed light on the potential pitfalls associated with the implementation of share buybacks, a topic that merits exploration in the realm of corporate governance.

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Weekly Roundup: October 20-26, 2023


More from:

This roundup contains a collection of the posts published on the Forum during the week of October 20-26, 2023

Transaction Satisfied “Entire Fairness,” Despite Serious Sale Process Flaws—BGC Partners


TNFD Recommendations for Nature Related Disclosures


California enacts major climate-related disclosure laws


The 401(k) Conundrum in Corporate Law


The CEO Shareholder: Straightforward Rewards for Long-term Performance


SEC Adopts Updates to Schedule 13D and 13G Reporting


Good and Bad CEOs


Boards of Directors in Disruptive Times: Improving Corporate Governance Effectiveness


CPA’s Guide to Corporate Political Spending: A Practical Checklist for Management


What Would Happen to ESG Proposals If Vanguard, BlackRock and State Street Didn’t Vote?


Remarks by Chair Gensler Before the 2023 Securities Enforcement Forum


Remarks by Chair Gensler Before the 2023 Securities Enforcement Forum

Gary Gensler is Chair of the U.S. Securities and Exchange Commission. This post is based on his recent remarks. The views expressed in this post are those of Chair Gensler, and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

I am pleased to join you at the 2023 Securities Enforcement Forum. As is customary, I’d like to note that my views are my own as Chair of the Securities and Exchange Commission, and I am not speaking on behalf of my fellow Commissioners or the SEC staff.

When I spoke with you two years ago, I shared what the SEC’s first chair, Joseph Kennedy, said in his first speech: “The Commission will make war without quarter on any who sell securities by fraud or misrepresentation.”[1]

In a subsequent speech, just four months later, Kennedy emphasized: “We are not prosecutors of honest business, nor defenders of crookedness. We are partners of honest business and prosecutors of dishonesty. We shall not prejudge, but we shall investigate.”[2]

These words remain just as true today.

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What Would Happen to ESG Proposals If Vanguard, BlackRock and State Street Didn’t Vote?

Lindsey Stewart is Director of Investment Stewardship Research at Morningstar, Inc. This post is based on his Morningstar memorandum. Related research from the Program on Corporate Governance includes The Agency Problems of Institutional Investors (discussed on the Forum here) by Lucian Bebchuk, Alma Cohen, and Scott Hirst; Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy (discussed on the forum here) and The Specter of the Giant Three (discussed on the Forum here), both by Lucian Bebchuk and Scott Hirst; and The Limits of Portfolio Primacy (discussed on the Forum here) by Roberto Tallarita.

Key Takeaways

BlackRock, Vanguard, and State Street Have a Significant Impact on Voting Outcomes

  • Overall, there were fewer key resolutions in 2023 partly because of the Big
  • BlackRock and Vanguard sharply reduced their support for key resolutions in State Street’s support increased.
  • Given their weight in the market, we look at how excluding the Big Three’s votes affects support for environmental and social (E&S)

More Key Resolutions if We Exclude the Big Three

  • Among S. large caps, we estimate there would have been 59 instead of 28 key resolutions in 2023 if the Big Three hadn’t voted—more than double.
  • Adjusted support for near-miss resolutions in 2023 was 34%, but this rises to 44% if we exclude the Big
  • Several resolutions would have achieved majority adjusted support, including proposals on lobbying, climate, and workplace issues at Apple, Boeing, Chevron, and IBM.
  • This would have sent a clearer signal to companies on which E&S issues are important to

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CPA’s Guide to Corporate Political Spending: A Practical Checklist for Management

Bruce F. Freed is President and Co-founder, Jeanne Hanna is Research Director, and Karl J. Sandstrom is Strategic Advisor at the Center for Political Accountability. This post is based on their CPA publication. Related research from the Program on Corporate Governance includes Corporate Political Speech: Who Decides? (discussed on the Forum here) by Lucian Bebchuk, Robert J. Jackson Jr.; The Untenable Case for Keeping Investors in the Dark (discussed on the Forum here) by Lucian Bebchuk, Robert J. Jackson, Jr., James Nelson, and Roberto Tallarita; The Politics of CEOs (discussed on the Forum here) by Alma Cohen, Moshe Hazan, Roberto Tallarita, and David Weiss; and Shining Light on Corporate Political Spending (discussed on the Forum here) by Lucian Bebchuk, and Robert J. Jackson Jr.

Companies today accept that political spending poses serious risks. A 2017 Iowa Law Review article, “Campaign Finance Reform Without Law,” spotlighted how companies increasingly were adopting political disclosure and accountability policies to better manage their spending. As the article pointed out, the number of companies doing so had reached the point where “private ordering” made those policies and practices the norm.

Since then, the Center for Political Accountability and the University of Michigan’s Erb Institute have gone further and developed frameworks for corporate political engagement. The Center, specifically, focused on election-related spending in developing the CPA-Zicklin Model Code of Conduct for Corporate Political Spending. The Erb Institute’s Principles for Corporate Political Responsibility are more general and included lobbying and general company conduct.

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Boards of Directors in Disruptive Times: Improving Corporate Governance Effectiveness

Jordi Canals is Professor of Strategic Management and the holder of Fundación IESE Chair in Corporate Governance at IESE Business School. This post is based on his book.

Disney’s board of directors fired CEO Bob Chapek on November 20, 2022. He  was nominated  for that job in February 2020 to replace Bob Iger -Disney CEO between 2005 and 2020-, after several board attempts in previous years to speed up Iger’s succession. The board brought back  Iger as  Disney CEO to replace Chapek in November 2020.  Disney’s board was facing complex strategic challenges that included, among others, the weak performance of Disney+ -the streaming business launched in 2019-, a falling share price, technology disruption threatening its core business, unsustainable debt levels, and the rising geopolitical risk in China. On top of this, Disney was facing a growing pressure from activist investor Nelson Peltz, whose Trian Fund had amassed a position close to 2 per cent of outstanding Disney equity by October 2023. Disney’s board daunting problems show how  the combination of technology disruption, growing competition in business models and platforms, activist pressure, geopolitical risks, and the CEO succession process present a formidable challenge for the most competent boards.

Over the past two decades, a guiding idea of institutional investors and capital markets regulators in the US and the EU was that board structure and composition, and board directors’ professional expertise and diversity, were features that would improve board effectiveness. There is a growing perception in academia and the business world today that the current model of boards of directors based on a majority of  independent board members,  the separation of the chair  and CEO jobs, active board committees and stronger compliance is not effective to help govern companies in times of complex disruptions. The recent cascade of corporate crises involving companies whose boards shared those positive features (such as Credit Suisse, Danone, GE, GSK, Wells Fargo and WeWork, among others) has opened up the discussion on how to improve the  board model and develop better corporate governance.

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Good and Bad CEOs

Dirk Jenter is a Professor of Finance at London School of Economics and Political Science, Egor Matveyev is a Senior Lecturer and Research Scientist in Finance at Massachusetts Institute of Technology, and Lukas Roth is an Associate Professor of Finance at University of Alberta. This post is based on their recent paper.

How important are individual CEOs for firm performance and value? CEOs are not randomly allocated to firms – e.g., better firms are likely to attract better CEOs – and their turnover is likely to be correlated with other changes that affect productivity. This makes it difficult to assess whether variation in performance is due to differences in leadership.

To make progress on this question, our paper “Good and Bad CEOs” analyzes changes in firm value, performance, and behavior caused by deaths of incumbent CEOs. This allows us to measure the contribution of the deceased CEO relative to that of their successor. Unlike other CEO turnovers, most CEO deaths are randomly allocated to firms and are not a decision made by the board of directors. Hence, any effects of CEO deaths on firms should be due to scarce CEO talent, changes in the division of value between shareholders and CEOs, or frictions in the matching of CEOs to firms.

Analyzing 449 CEO deaths in publicly traded US firms between 1980 and 2012, we find striking heterogeneity in the shareholder value effects of CEO deaths. While the average stock price reaction to CEO deaths is small, we document large negative reactions to many deaths and large positive ones to many others. In 10% of cases, stock prices drop by at least 13% in the four days around announcements, while in another 10% of cases, stock prices rise by at least 11%.

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