Yearly Archives: 2023

Weekly Roundup: November 3-9, 2023


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This roundup contains a collection of the posts published on the Forum during the week of November 3-9, 2023

Understanding the Corporate Transparency Act’s Company Reporting Obligations


SEC Clawback Rules: Practical Considerations and FAQs


Unlocking Hidden Value Through Engagement


Divestment and Engagement: The Effect of Green Investors on Corporate Carbon Emissions


Cyber Governance: Growing Expectations for Information Security Oversight and Accountability


Rebuilding Banking Law: Banks as Public Utilities


Silicon Valley and S&P 100: A Comparison of 2023 Proxy Season Results


SEC Adopts Amendments to Beneficial Ownership Reporting Rules


Remarks by Commissioner Uyeda at the Practicing Law Institute’s 55th Annual Institute on Securities Regulation


Top 5 SEC Developments


Issues Facing Compensation Committees in 2024


Issues Facing Compensation Committees in 2024

Mike Kesner is Partner, Steve Pakela and  Lane Ringlee are Managing Partners at Pay Governance LLC. This post is based on their Pay Governance memorandum. Related research from the Program on Corporate Governance includes The Perils and Questionable Promise of ESG-Based Compensation (discussed on the Forum here) by Lucian Bebchuk and Roberto Tallarita; Paying for long-term performance (discussed on the Forum here); Stealth Compensation via Retirement Benefits both by Lucian Bebchuk and Jesse Fried; and Share Repurchases, Equity Issuances, and the Optimal Design of Executive Pay (discussed on the Forum here) by Jesse Fried.

Introduction

The current economic environment and geopolitical unrest have created substantial uncertainty as companies prepare annual budgets and long-term forecasts for 2024 and beyond. At the same time, the U.S. Securities and Exchange Commission (SEC)’s unprecedented release of new regulations and guidance has many companies scrambling to adopt new policies and comply with new disclosure requirements, and the onslaught of new rules does not appear to be abating anytime soon. Further, the number of proxy proposals this past year reached an all-time high as the SEC changed its rules, making it more difficult for companies to exclude such proposals.

Over the last several months, our Firm’s partners and consulting staff have attended hundreds of corporate Boards of Directors’ compensation committee meetings and engaged with company C-Suite executives on a regular basis in our role as executive compensation advisors. From these meetings, we have learned a great deal about the key issues and dominant themes that are on the minds of board members and have prepared a summary of these items along with some commentary.

The goal of this Viewpoint is to highlight the emerging issues and developments in executive compensation as Board committees and management teams prepare for 2024.

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Top 5 SEC Developments

Haimavathi V. Marlier, Michael Birnbaum, and Nicole Serfoss are Partners at Morrison & Foerster LLP. This post is based on a Morrison & Foerster memorandum by Ms. Marlier, Mr. Birnbaum, Ms. Serfoss, Jina Choi, and Justin Kareem Rezkalla.

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 string of settled charges for alleged violations of the Whistleblower Protection Rule;
  • Charges against an electronic trading firm and its broker-dealer subsidiary for allegedly making false and misleading disclosures regarding protecting customer trading data and preventing trader access to material non-public information (“MNPI”);
  • Settled charges against a registered investment adviser for alleged misstatements regarding the integration of environmental, social, and governance (“ESG”) factors into its investment process;
  • Two revenue recognition enforcement actions against public companies and certain senior executives for accounting fraud and misleading disclosure violations; and
  • Enforcement sweeps focused on alleged violations of the Marketing Rule and failures by both corporate insiders and the public companies where they worked to timely report holdings and transactions of public company stock.

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Remarks by Commissioner Uyeda at the Practicing Law Institute’s 55th Annual Institute on Securities Regulation

Mark T. Uyeda is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on his recent remarks. The views expressed in the post are those of Commissioner Uyeda, and do not necessarily reflect those of the Securities and Exchange Commission or the Staff.

Thank you, Keir [Gumbs], for that kind introduction. It is nice to see you, Meredith [Cross] and Joan [McKown], all of whom I have known for most, if not all, of my time at the Commission. Congratulations to each of you for chairing what is one of the premier securities regulation conferences in the country.

Yesterday at this conference, leading practitioners and members of the Commission staff discussed a variety of issues affecting public companies. Today, I will add my thoughts. As you might expect, my remarks today reflect my individual views as a Commissioner of the SEC and do not necessarily reflect the views of the full Commission or my fellow Commissioners.

Since becoming Commissioner sixteen months ago, the SEC has finalized five rulemakings affecting public company disclosure – pay versus performance,[1] clawbacks,[2] amendments to rule 10b5-1,[3] share repurchases,[4] and cybersecurity.[5] The Commission also has climate-related disclosure and SPACs as pending proposals[6] and human capital management[7] and corporate board diversity[8] on the rulemaking agenda. Given the current emphasis on additional public company disclosure, I will share four thoughts about disclosure rulemaking.

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SEC Adopts Amendments to Beneficial Ownership Reporting Rules

Eric Orsic, Thomas Conaghan, and Heidi J. Steele are Partners at McDermott Will & Emery LLP. This post is based on their MWE memorandum. Related research from the Program on Corporate Governance includes The Law and Economics of Equity Swap Disclosure (discussed on the Forum here) by Lucian Bebchuk; The Law and Economics of Blockholder Disclosure (discussed on the Forum here) by Lucian Bebchuk and Robert J. Jackson Jr.; and Pre-Disclosure Accumulations by Activist Investors: Evidence and Policy by Lucian Bebchuk, Alon Brav, Robert J. Jackson Jr., and Wei Jiang.

On October 10, 2023, the US Securities and Exchange Commission (SEC) adopted amendments to Sections 13(d) and 13(g) of the Securities Exchange Act of 1934, which among other things, accelerate the filing deadlines for Schedules 13D and 13G. In announcing these changes, SEC Chairman Gary Gensler stated that the old reporting requirements did not reflect the current pace of information in the modern capital markets, and the changes to the Schedule 13D and 13G reporting rules would “reduce information asymmetries.” The amendments and revised Schedule 13D deadline will become effective 90 days after publication of the amendments in the Federal Register. Compliance with the revised Schedule 13G filing deadlines will be required beginning September 30, 2024, and compliance with the structured data requirements for Schedule 13D and 13G will be required beginning December 18, 2024.

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Silicon Valley and S&P 100: A Comparison of 2023 Proxy Season Results

David A. Bell is a Partner and Co-Chair of Corporate Governance, and Ron C. Llewellyn is a Corporate Governance Counsel at Fenwick & West LLP. This post is based on their Fenwick memorandum.

In the 2023 proxy season, 149 of the technology and life sciences companies included in the Fenwick – Bloomberg Law Silicon Valley 150 List (SV 150) and all of the companies in Standard & Poor’s (S&P 100) held annual meetings. Generally, such annual meetings will, at a minimum, include voting with respect to the election of directors and ratification of the selection of the auditors of the company’s financial statements. Fairly frequently, it will also include an advisory vote with respect to named executive officer compensation (say-on-pay).

Annual meetings also increasingly include voting on one or more of a variety of proposals that may have been put forth by the company’s board of directors or by a stockholder that has met the requirements of the company’s bylaws and applicable federal securities regulations.

This post summarizes key developments relating to stockholder voting at annual meetings in the 2023 proxy season among the SV 150 and S&P 100.[1]

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Rebuilding Banking Law: Banks as Public Utilities

Lev Menand is an Associate Professor of Law at Columbia Law School, and Morgan Ricks is the Herman O. Loewenstein Chair in Law at Vanderbilt University Law School. This post is based on their recent paper.

The unexpected failure of several major banks earlier this year has sparked interest in Washington in financial reform. The Biden Administration has recommended new ways to hold bank executives accountable when their institutions fail, stricter capital and liquidity requirements, new stress testing rules, and stronger long-term debt mandates. Other policymakers and commentators (including us) have highlighted the role played by the deposit insurance framework in enabling the run on SVB and setting off a massive deposit drain at smaller banks. More systemic reform ideas are also circulating, including fundamental changes to bank governance and government regulation and supervision.

What is missing from the debate is a framework for understanding how these various modifications fit together with each other and with the existing legal edifice for money and banking. The deposit insurance debate is a case in point. One side sees value in having large quantities of uninsured deposits. At most minor adjustments are needed, they contend, perhaps a way to insure certain business deposits used for payroll. Another group proposes a much more expansive change in deposit insurance, which would eliminate traditional bank runs entirely. It is difficult, however, to evaluate the relative merits of these positions without understanding how they would affect the rest of the system. Our monetary architecture is an interconnected set of networks: changes in one area ramify, leading to responses in others. For example, the decision to design deposit insurance primarily for households is part of the reason a range of highly unstable shadow money instruments, including money market funds and repos, emerged in the second half of the twentieth century. The rise of these instruments is part of the reason policymakers facilitated greater banking system concentration and conglomeration. The emergence of complex universal banks, in turn, is part of the reason policymakers turned to gameable bright line capital rules and watered down discretionary bank supervision.

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Cyber Governance: Growing Expectations for Information Security Oversight and Accountability

Subodh Mishra is Global Head of Communications at Institutional Shareholder Services (ISS) Inc. This post is based on an ISS Corporate Solutions memorandum by Liam Hardy, Senior Associate, ISS Corporate Solutions.

Digital technology impacts businesses in myriad ways. The internet enhances the interconnectedness of people, systems, and processes, leading to added value for the products and services that make up economic activity. At the same time, this dependency exposes corporate issuers to an increasing amount of information security-related risk, raising alarm among stakeholders. Strong oversight to help mitigate this risk is becoming critical to the health of corporations and thus is viewed increasingly as a key governance issue. Such oversight should be structural and rooted in a company’s leadership and organizational design, including the board. While disclosure trends suggest that businesses are closing the gap with expectations, many companies may find areas for improvement.

Good information security oversight should seek to reduce a company’s potential risk of harmful economic outcomes. Cybersecurity breaches can cause widespread damage to operations, resulting in significant costs and damages.[1] The heightened threat of a breach has spurred greater scrutiny of companies’ programs and practices from proxy advisors, regulators, and investors. As a result, companies are building into their disclosures more comprehensive reporting of mitigation efforts. The Securities and Exchange Commission (SEC) announced new rules in July 2023, requiring public companies to disclose their information security risk management strategies and governance practices annually, and quickly report any material cybersecurity incidents (see ISS Insights: SEC Cybersecurity Rules Set New Hurdles for Public Companies).[2] As these mandates come into effect, businesses should consider not only how to comply with the new rules, but also how they can best demonstrate robust information security governance.

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Divestment and Engagement: The Effect of Green Investors on Corporate Carbon Emissions

Matthew Kahn and John Matsusaka are Professors at the University of Southern California and Chong Shu is a Professor at the University of Utah. This post is based on their recent NBER and SSRN working paper. 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, Scott Hirst; Index Funds and the Future of Corporate Governance: Theory, Evidence and Policy (discussed on the Forum here); Big Three Power, and Why it Matters (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.

Green investors, frustrated with what they see as inaction by governments, increasingly seek to use capital markets to pressure companies to combat climate change. These efforts have brought to the surface an important debate about what is the most effective strategy – should investors divest from fossil companies in order to deprive them of capital and free up resources for clean energy, or should they acquire fossil fuel stocks and use their ownership rights to press for emission cuts?

In a new empirical study we examine the competing arguments in this debate. We estimate how corporations adjusted their carbon emissions in response to a change in the composition of their shareholders: did they reduce emissions when green investors divested or when they invested? The evidence points to a clear conclusion: engagement is better than divestment for investors that want companies to reduce carbon emissions. Green investors make companies greener.

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Unlocking Hidden Value Through Engagement

Kei Okamura is a Portfolio Manager at Neuberger Berman. This post is based on his Neuberger Berman 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, 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. 

Reforms could continue to drive performance, particularly in a small to mid cap space that is ripe for engagement-driven capital efficiency gains.

The long-overlooked Japanese equity market’s resilient performance in the first half of 2023 caught many global investors off guard, driven by a healthy economy, monetary policy normalization, favorable geopolitical conditions and, importantly, unprecedented regulatory reforms. Now, we believe this performance strength is likely to continue, particularly in the small to mid cap space where companies show potential to benefit from constructive engagement.

In this white paper, we explore our market views, and provide case studies and takeaways for global investors considering constructive discourse with Japanese management.

The long-overlooked Japanese equity market’s resilient performance in the first half of 2023 caught many global investors off guard. A combination of a healthy macro economy, monetary policy normalization and favorable geopolitical conditions acted as a catalyst in the initial phase of the rally. However, of particular surprise to many investors was the unprecedented regulatory reforms targeting Japanese companies’ capital mismanagement. We believe this helped drive the Topix and Nikkei 225 benchmarks to test multidecade highs on the back of foreign investor inflow levels not seen since the heyday of Abenomics in the mid-2010s.

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