Yearly Archives: 2023

Alpha in Impact: Strengthening Outcomes

Susan H. Mac Cormac is a Partner and Michael P. Santos is an Associate at Morrison Foerster LLP, and Divya Walia is a Research Fellow at Impact Capital Managers. This post is based on a Morrison Foerster and Impact Capital Managers memorandum by Ms. Mac Cormac, Mr. Santos, Ms. Walia, Harry M. Stanwick, Daniel J.  Irvin, and Marieka Spence. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance (discussed on the Forum here) by Lucian A. Bebchuk and Roberto TallaritaHow Much Do Investors Care about Social Responsibility? (discussed on the Forum here) by Scott Hirst, Kobi Kastiel, and Tamar Kricheli-Katz; Does Enlightened Shareholder Value add Value (discussed on the Forum here) by Lucian Bebchuk, Kobi Kastiel, Roberto Tallarita; and Reconciling Fiduciary Duty and Social Conscience: The Law and Economics of ESG Investing by a Trustee (discussed on the Forum here) by Max M. Schanzenbach and Robert H. Sitkoff.

Introduction

Executive Summary

Impact Capital Managers represents over $60 billion of impact-focused capital and connects a network of 100+ of the leading private capital investment funds seeking competitive, market rate returns. As market-rate investors, the challenge for ICM member organizations is to prove that impact can and does drive financial return. Inconsistency in impact measurement and reporting makes it difficult to establish a quantitative correlation between impact and financial performance. However, ICM member examples demonstrate that, when done right, effective investment stewardship from an impact perspective is the same as effective stewardship from a financial perspective. Nowhere is this clearer than at the exit stage, where impact and financial value creation during the life of the investment are realized. This report is interested in showing the impact-specific drivers that most influenced exit outcomes for ICM portfolio companies. While this report centers on ICM members’ firms, we hope the findings can be useful for the private capital impact investing landscape more broadly.

ICM member organizations represent just one pillar of the effort to mobilize capital towards crucial social and environmental issues. As market-rate investors, ICM funds should be assessed independently from other investors on the impact capital spectrum, including concessionary rate investment funds, philanthropy, and public organizations. ICM members also differ from other areas of the sustainable investing landscape in that they represent mainly private capital. On one hand, this gives investors freedom from short term shareholder pressure and allows for a focus on long-term impact creation. However, this also creates opacity around their impact and its relationship to realized financial value.

This report attempts to reduce some of that opacity by including transaction-level information that show both impact and financial return. This report is also focused on specific considerations that impact investors face at exit. Unlike traditional investors, realized financial value is not the only outcome that matters. As mission-driven capital allocators, most ICM firms are interested in impact created and future impact potential as metrics of exit success. Impact investors are also concerned with how to protect that impact at exit. Many general partners have committed to their limited partners in their governing documents that they will seek to create impact with their investments. Protecting impact at exit and fulfilling their commitments to their limited partners is thus of particular importance. In addition to exit-level analysis, the report includes a discussion of impact tools used by investors to create and maintain impact at exit.

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Show and Tell: An Analysis of Corporate Climate Messaging and Its Financial Impacts

Zachery M. Halem is the Director of the Climate Center at Lazard Freres & Co. This post is based on a recent paper by Mr. Halem, Joseph E. Aldy, Professor of the Practice of Public Policy at the John F. Kennedy School of Government at Harvard University; Patrick Bolton, the Barbara and David Zalaznick Professor Emeritus of Business at Columbia Business School, Marcin T. Kacperczyk, Professor of Finance at Imperial College London Business School, and Peter R. Orszag, CEO of Financial Advisory at Lazard Freres & Co.

With growing public attention to the risks posed by a changing climate, investors have increasingly scrutinized corporations about the environmental impact of their operations. Capital markets reflect this enhanced focus on climate change risks and the risks associated with a decarbonized energy transition. In our recent research, we show how such transition risk exposure is already priced into equities and bonds issued by publicly-traded corporations (Bolton and Kacperczyk, 2021; Lazard Climate Center, 2021; Bolton et al., 2022). This attention on firm-level greenhouse gas emissions has prompted corporations to assess their transition risk exposure and, in recent years, to communicate their assessments of and, in some cases, strategies for managing these risks.

In our recent study, we examine corporate communication strategies on climate change-related transition risk of Russell 3000 constituents over a 2011-2020. There are three complementary channels through which companies can communicate about their climate change-related risks and goals: 1) disclosure of greenhouse gas emissions from operations and supply chains, 2) commitments to reduce the carbon footprint of operations, supply chains, or investments, and 3) soft information messaging through earnings calls or press releases. We observe several patterns around climate communication.

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Ten Questions for Board Chairs Preparing for Activism and Hostile Takeovers

Shaun J. Mathew and  Daniel E. Wolf are Partners at Kirkland & Ellis LLP. This post is based on a Kirkland & Ellis memorandum by Mr. Mathew, Mr. Wolf, Sarkis Jebejian, Eric L. Schiele, Erin Nealy Cox, Bob M. Hayward and several other Kirkland partners. Related research from the Program on Corporate Governance includes The Long-Term Effects of Hedge Fund Activism (discussed on the Forum here) by Lucian Bebchuk, Alon Brav, and Wei Jiang; Dancing with Activists (discussed on the Forum here) by Lucian A. Bebchuk, Alon Brav, Wei Jiang, and Thomas Keusch; and Who Bleeds When the Wolves Bite? A Flesh-and-Blood Perspective on Hedge Fund Activism and Our Strange Corporate Governance System by Leo E. Strine Jr.

As the 2023 proxy season comes to a close, attacks by high profile activist hedge funds at blue-chip companies continue to dominate headlines, and a close review of campaigns conducted during the first season under the SEC’s new universal proxy rules reveals changes to strategy and tactics that companies, activists and their advisors are carefully considering. As such, it’s no surprise that activism preparedness continues to rank high on the priority list of many public company boards.

But as this past year has shown, a public attack by an activist is not the only form of corporate crisis. The current macroeconomic environment and depressed valuations have led to bidders (both strategic and financial sponsors) more regularly making unsolicited and, in some cases, even openly hostile M&A approaches. Sophisticated hedge funds specializing in short attacks are growing bolder and expanding their targets to more mature, global companies, with several campaigns leading to significant stock price reactions, governmental investigations and executive departures. ESG continues to be a focus, but companies now face increasing tension between pro-ESG and anti-ESG groups, with areas of vulnerability expanding beyond shareholder proposals to litigation, state legislation, and possible state AG investigations and federal Congressional investigations, as well as potentially significant business, reputational and financial risks (e.g., via boycotts or aggressive social media campaigns), all of which can be interrelated and even fuel one another. The landscape for director (and officer) liability for Caremark (oversight) claims continues to evolve, in cases ranging from cyberattacks and allegations of employee sexual misconduct to more traditional areas of risk including natural disasters, critical regulatory and enforcement compliance issues and fraud. Boards now also find themselves operating in an era of rapid-fire and unprecedented regulatory change in critical areas, including antitrust and environmental policy — not to mention accelerating business and industrial change via technological disruption (including GenAI) that continues to upend and threaten business models.

In our experience, the boards that respond most effectively to major corporate crises are those that approach crisis preparedness proactively and holistically rather than from a reactive posture focused on individual risk silos. While there is no one-size-fits all approach and each company (and each board) is different, the following questions may be helpful to consider in making sure the board is prepared.

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The SEC’s Climate Change Disclosure Rules are in Double Constitutional Trouble

Donald J. Kochan is a Professor of Law and the Executive Director of the Law & Economics Center at George Mason University’s Antonin Scalia Law School. This post is based on his recent piece. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance (discussed on the Forum here) by Lucian A. Bebchuk and Roberto Tallarita; and For Whom Corporate Leaders Bargain (discussed on the Forum here) by Lucian Bebchuk, Kobi Kastiel, Roberto Tallarita; Stakeholder Capitalism in the Time of COVID (discussed on the Forum here) by Lucian Bebchuk, Kobi Kastiel, 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.

The SEC’s climate change disclosure rules are in double constitutional trouble.  Two distinct but recently blurred administrative law doctrines loom to challenge the constitutionality of the Security and Exchange Commission’s (SEC) anticipated climate change disclosure rules.  Policymakers and courts alike should better understand the independence of these two doctrines and their capacity to defeat the SEC’s power grab.

In a March 2022 rulemaking that is still pending, the SEC proposed a set of expansive and costly regulations that would require exchange “registrants to provide certain climate-related information in their registration statements and annual reports” as well as “require information about a registrant’s climate-related risks that are reasonably likely to have a material impact on its business, results of operations, or financial condition.”  It also proposed requiring not just disclosure of a registrant’s direct, or Scope 1, greenhouse gas emissions, but also the Scope 2 greenhouse gas emissions from its purchases of electricity and investigate and report on the Scope 3 emissions of all of its partners in the supply chain.  Furthermore, “certain climate-related financial metrics” must be provided in audited financial statements if the rule is finalized as proposed.  This is an extraordinary regulatory burden designed to regulate corporate behavior regarding the environment under the guise of being “disclosure.”

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Supreme Court Confirms the Scope of Section 11’s Tracing Requirement

Samuel P. Groner and Michael P. Sternheim are Partners and Katherine L. St. Romain is an Associate at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Mr. Groner, Ms. St. Romain, Mr. Sternheim, Lee T. Barnum, Mark Hayek, and Peter L. Simmons.

In Slack Technologies, LLC v. Pirani, 2023 WL 3742580 (June 1, 2023), a unanimous Supreme Court held that in order to state a viable claim under Section 11 of the Securities Act of 1933 (the “Securities Act”), a shareholder must plead (and ultimately prove) that the purchased shares can be traced back to a specific registration statement of the issuer. The Court rejected the Ninth Circuit’s recent attempt to create an exception to what had previously been considered a fairly settled tracing requirement for unregistered shares purchased as part of direct listings. In light of the Court’s insistence that Section 11’s tracing requirement is equally applicable whether an issuer conducts a traditional IPO or a listing that includes both a registered offering and a direct listing of previously issued unregistered shares, this decision will make it more difficult for shareholder plaintiffs to establish their standing to bring a Section 11 claim against an issuer that has gone public via a direct listing that encompasses both registered and unregistered shares.

I. Background

In 2019, Slack, a workplace messaging company, went public on the New York Stock Exchange via a direct listing instead of a traditional IPO. Unlike in a traditional IPO, where all of the shares are registered pursuant to a registration statement filed with the Securities and Exchange Commission under the Securities Act, Slack’s direct listing simultaneously offered 118 million newly issued shares being registered under the Securities Act and 165 million unregistered shares, which had been issued pursuant to exemptions from registration or in private offerings to Slack’s pre-IPO shareholders. All 283 million shares were offered together as part of the direct listing, which the district court noted would make tracing of any particular shares impossible due to the simultaneous listing of registered and unregistered shares. Pirani v. Slack Tech., Inc., 445 F. Supp. 3d 367, 379 (N.D. Cal. 2020). In other words, purchasers of Slack shares after the direct listing event would have significant difficulty in determining whether the particular shares they purchased were newly registered or purchased from the unregistered pool of pre-IPO shares being listed simultaneously with the registered shares.

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CEO Leadership Redefined

Christine DiBartolo and Brent McGoldrick are Senior Managing Directors and Elly DiLeonardi is a Strategic Communications Advisor at FTI Consulting. This post is based on a FTI Consulting memorandum by Ms. DiBartolo, Mr. McGoldrick, Ms. DiLeonardi, James Condon, Clare Marshall and Hamm Hooper. 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; Stakeholder Capitalism in the Time of COVID (discussed on the Forum here) by Lucian Bebchuk, Kobi Kastiel, Roberto Tallarita; and 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.

Navigating Stakeholders’ Evolving Expectations of CEOs

As a firm that helps CEOs with their most complex, business-critical issues, FTI Consulting set out in 2021 to better understand the changing demands that a company’s critical stakeholders, including employees and investors, had of executives during a period of social and political unrest amidst the COVID-19 pandemic. We recognize that the world today looks very different from 2021, when we first conducted FTI Consulting’s CEO Leadership Redefined [1] research, so we recanvassed employees and investors to determine how their expectations have changed. This year, we also asked a bipartisan group of D.C. policy influencers for their perspectives to provide a more comprehensive view of current stakeholder perceptions of CEOs.

People have different concerns today as compared to 2021. We are in a tighter labor market with daily headlines of layoff announcements driven by economic uncertainty and inflation concerns. Employees who worked remotely during the pandemic are now navigating a new hybrid work environment. And we have entered another presidential election cycle, where news headlines are different from 2020 when we were in the throes of the COVID-19 pandemic.

Throughout the past few years, CEOs have been more vocal on issues ranging from social justice to equality to climate change. Companies have taken significant steps to ensure their actions match their leaders’ words, placing a renewed focus on purpose and values, and using these bedrocks of their organization as the “north star” guiding strategy and decision-making.

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Key Components and Trends of CVRs in Life Sciences Public M&A Deals

Sally Wagner Partin and Sharon R. Flanagan are Partners and Hannah M. Brown is an Associate at Sidley Austin LLP. This post is based on their Sidley Austin memorandum. Related research from the Program on Corporate Governance includes Are M&A Contract Clauses Value Relevant to Target and Bidder Shareholders? (discussed on the Forum here) by John C. Coates, IV, Darius Palia, and Ge Wu; and The New Look of Deal Protection (discussed on the Forum here) by Fernan Restrepo, and Guhan Subramanian.

In recent months, the life sciences industry has seen the reemergence of contingent value rights, or CVRs, in public company acquisitions as a way to bridge a valuation gap between buyers and sellers. Recent public deals with CVRs include AstraZeneca’s acquisition of CinCor Pharma completed in February 2023, French biopharmaceutical company Ipsen’s acquisition of Albireo Pharma completed in March 2023, and announcements in April 2023 of the pending acquisition by Assertio Holdings of Spectrum Pharmaceuticals and the pending acquisition by Shin Nippon Biomedical Laboratories of Satsuma Pharmaceuticals. Even in deals that ultimately do not include CVRs, they are frequently being discussed behind the scenes by buyers and sellers as a way to address a lack of alignment on valuation.

Executive Summary

  • This study addresses CVRs, the public M&A analog to the earnout used in private deals, which can be price-driven (e.g., providing CVR holders a payment if the average market price of the issuer’s equity security is less than a preset target price) or event-driven (e.g., providing CVR holders a payment if certain regulatory milestones are achieved).
  • CVRs are more common in life sciences transactions than in other industries. Of the 1,119 public deals announced across all industries from January 1, 2018 through April 30, 2023, only 37 (or 3%) included CVRs; however, of those deals, 84% were in the life sciences industry. [1]

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Weekly Roundup: June 9-15, 2023


More from:

This roundup contains a collection of the posts published on the Forum during the week of June 9-15, 2023.

Embracing Environmental Justice Initiatives to Advance Corporate Objectives


Drag-Along Provisions and Covenants Not to Sue in the Private Company M&A Context


The Never-Ending Story: CEO Succession Planning



Insider Trading Disclosure Update: Rulemaking Activity


Congressional Sustainable Investing Caucus


Comment on PCAOB’s Proposed Auditing Standard


Voice Through Divestment


SEC Enforcement Mid-Year Review



ESG and Fiduciaries: A New Age Dawns


ESG and Fiduciaries: A New Age Dawns

James C. Woolery is a Partner and founder at Woolery & Co, and Tim Martin is a Partner at Kaplan Hecker & Fink LLP. This post is based on a Woolery & Kaplan Hecker & Fink piece by Mr. Woolery, Mr. Martin, Trevor Morrison, Carmen Iguina Gonzalez, and Matt Saur. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance (discussed on the Forum here) by Lucian A. Bebchuk and Roberto Tallarita; Does Enlightened Shareholder Value add Value (discussed on the Forum here) and Stakeholder Capitalism in the Time of COVID (discussed on the Forum here) both by Lucian Bebchuk, Kobi Kastiel, 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 Corporate Purpose and Corporate Competition (discussed on the Forum here) by Mark J. Roe. 

Overview

  • Corporate directors and fiduciary leaders have long known about ESG, but the discussion has intensified in recent years. And this is just the beginning: ESG is the new frontier in defining fiduciary duties.
  • Being reactive is no longer an option – directors and fiduciary leaders must usher their enterprise into the new era by incorporating ESG into their business and investment strategies.
  • Woolery & Co. and Kaplan Hecker & Fink have outlined a strategy to help directors and fiduciary leaders make the business, investment, and legal case for ESG.

Fiduciaries are facing a daunting new era in the world of environmental, social and governance (“ESG”) considerations. Of course, the push for socially-conscious business and investing decisions is familiar. But in recent years, the ESG discussion has intensified, demanding corporate and investment fiduciaries’ renewed attention. What many don’t realize is that this is just the beginning: ESG is the new frontier in defining fiduciary duties.

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Market Power, Not Consumer Welfare: A Return to the Foundations of Merger Law

Eric A. Posner is the Kirkland and Ellis Distinguished Service Professor of Law at the University of Chicago. This post is based on his recent paper.

Section 7 of the Clayton Act prohibits mergers and acquisitions where “the effect may be substantially to lessen competition, or to tend to create a monopoly.” The statute plainly does not say that mergers that substantially lessen competition are nevertheless permitted if they advance efficiency or lower prices. The “competition” test of section 7 envisions an ideal of markets in which multiple firms compete for the business of trading partners. The reduction of n firms to n-1 through a merger violates the statute when that reduction in competition exceeds a de minimis threshold left to the courts to determine by reference to congressional purpose.

Yet today the statute is understood in most legal and economic circles in a completely different fashion: as a kind of cost-benefit analysis that prohibits mergers that increase prices—under what I call the “price test,” though it is more familiarly known as the “consumer welfare standard.” Taken to its logical extreme, this view implies that a merger to monopoly—a merger of two firms into one—could be lawful even though plainly the replacement of a duopoly with a monopoly substantially lessens competition, and even more obviously tends to create a monopoly, in the words of the usually overlooked second clause of section 7. This implicit revision of section 7 has weakened merger enforcement, and weaker merger enforcement has been blamed for a range of social ills—including growing concentration, rising prices, stagnant growth, and soaring inequality—resulting in calls for a revival of antitrust law.

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