Monthly Archives: February 2023

Director Perspective: Top Priorities of 2023

Ted Sikora is a Project Manager, Surveys and Business Analytics at NACD. This post is based on his NACD publication.

If 2020 was the year of the COVID-19 pandemic and 2021 was the year of building toward recovery, 2022 offered little respite for directors overseeing companies amid a chaotic business environment. To gain insight into the key trends that will impact boards in 2023 and how directors plan to adapt, the National Association of Corporate Directors has once again conducted its annual Board Trends and Priorities Survey. This year’s survey report includes insights from more than 300 directors, which detail what directors expect in the coming year, as well as the key improvement areas that they deem important. [1]

TOP TRENDS

Directors were asked to select the top five trends that they believe will have the greatest effect on their company over the next year. It’s no surprise that inflation and the threat of an economic recession are top of mind. After several months of record-breaking inflation, the threat of a recession looms over the business landscape with 64 percent of respondents selecting it as ranking among their top concerns. As inflation persists despite a series of interest-rate hikes initiated by the Federal Reserve, pessimism has increased toward the prospects of the US economy. (See Figure 1.) In fact, only 29 percent of respondents believe that the United States’ economy is heading for a “soft landing,” that is, stemming inflation while avoiding a recession by mid-2023. Meanwhile, 65 percent anticipate a recession, and 6 percent anticipate a severe recession. (See Figure 2.)

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Weekly Roundup: February 3-9, 2023


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


Global Corporate Credit ESG Engagement Report



Does Greater Public Scrutiny Hurt a Firm’s Performance?


ESG in 2023: Politics and Polemics


Corporate Officers, Not Just Directors, Can Be Liable for Duty of Oversight Violations



Boardwalk Pipeline v. Bandera


​Mergers and Acquisitions—2023


Factors That Will Impact Proxy Season 2023


Outlook for Activism in 2023


Outlook for Activism in 2023

James E. Langston and Kyle A. Harris are Partners and Claire Schupmann is an Associate at Cleary Gottlieb Steen & Hamilton LLP. This post is based on their Cleary memorandum. 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 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 (discussed on the Forum here) by Leo E. Strine, Jr.

Shareholder activism continued to rise in 2022, and is poised to bubble over in 2023. As we turn the page on 2022, the overall macroeconomic and geopolitical picture portends continued market volatility and recessionary-like conditions, and activists of all stripes will look to capitalize on valuation re-sets and broader disruption to push their agendas at companies at home and abroad.  While we expect many of the activism trends from recent years to continue, that does not mean activism in 2023 will necessarily reflect business as usual. A number of recent developments will likely cause meaningful shifts to the activism landscape and playbook, which companies should be prepared to navigate. Some of these key developments and likely forces of change in 2023 are discussed below.

More New Faces

Continuing a multi-year trend, 2022 saw a broad range of new entrants to the activism field, bringing with them new aims, strategies and tactics. While the most prominent activists (Elliott, Icahn and the like) are as active as ever, there has been a notable rise in the number of campaigns initiated by first-time activists. Many of these actors are fusing the types of strategic and financial goals traditionally espoused by activists with ESG and corporate governance aims. Some have also demonstrated more aggressiveness and unpredictability as they seek to establish a track record and garner notoriety they can leverage into greater fundraising success. Companies should continue to be aware of the expanding roster of activists and their tactics as they refresh their activism defense playbook in the new year.

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Factors That Will Impact Proxy Season 2023

Dorothy Flynn is President of Corporate Issuer Solutions and Chuck Callan is Senior Vice President of Regulatory Affairs at Broadridge Financial Solutions. This post is based on their NACD publication.

Choppy market valuations, more engaged shareholders, and new regulations will create new challenges for corporate governance in the upcoming proxy season. Companies and boards should anticipate pressure from stakeholders regarding director elections and say on pay, high numbers of shareholder proposals on environmental and social matters, and added disclosure in proxy statements.

Broadridge’s analysis shows that in 2022 the most directors over the past five years failed to attain majority support, there was a decline in shareholder support for say on pay, and there were more shareholder proposals than at any time over the preceding five years. Directors and management should expect the following factors to weigh on the upcoming 2023 proxy season:

1. Investment Democratization: An influx of new investors is expanding the shareholder base, and they are communicating among themselves. Many of them will be engaged on proxy matters. Others will come off the sidelines because new technologies are making it easier for their voices to be heard.

2. Advancing Environmental, Social, and Governance (ESG) Issues: Investors are demanding more information and action, and many companies are proactively providing it, not just in proxy statements but throughout the year.

3. Changes in Say on Pay and Clawbacks: “Pay vs. Performance” rules as well as pending stock exchange rules on clawbacks are adding to the disclosures that companies and boards need to make on executive compensation. These rules provide another opportunity to demonstrate alignment between management and shareholders.

4. Uncertainty about Board Leadership: Market downturns can presage a decline in shareholder support, and new US Securities and Exchange (SEC) rules for universal proxy make it easier for some activists to add their nominees to company ballots.

5. Pass-Through Voting: Some of the largest fund companies are passing votes to their underlying investors while others are taking retail shareholder “sentiment” into account in voting decisions. Nevertheless, guidelines from proxy advisers will continue to sway large numbers of votes.

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​Mergers and Acquisitions—2023

Victor Goldfeld and Mark Stagliano are Partners and Anna D’Ginto is an Associate at Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell memorandum by Mr. Goldfeld, Mr. Stagliano, Ms. D’Ginto, Adam O. Emmerich, Andrew J. Nussbaum, and Igor Kirman. 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, Darius Palia, and Ge Wu; and The New Look of Deal Protection (discussed on the Forum here) by Fernan Restrepo and Guhan Subramanian.

2022 was a tale of two halves for M&A. The beginning of the year was active, as robust dealmaking carried over from the record-breaking levels of 2021 to drive approximately $2.2 trillion worth of global deals through the first half of the year, compared to approximately $2.7 trillion worth of such deals announced over the same time period in the previous year. M&A activity slowed considerably after the first half of 2022, however, as significant dislocation in financing markets, an increasingly volatile stock market, declining share prices, concerns over inflation, rapidly increasing interest rates, war in Europe, supply chain disruption and the possibility of a global recession undermined business and consumer confidence and created hesitancy to agree to major transactions. The year ended with total deal volume of $3.6 trillion globally, down from $5.7 trillion in 2021 but in line with the $3.5 trillion of volume in 2020 as well as with the five-year average (excluding 2021), and in a sense was the inverse of 2020, which saw a precipitous decline in M&A activity in the first half at the outset of the Covid-19 pandemic, followed by a surge in the second half driven by massive liquidity and low interest rates. Transactions involving U.S. targets and acquirors continued to represent a substantial percentage of overall deal volume, with U.S. M&A totaling over $1.5 trillion (approximately 43% of global M&A volume) for the year, as compared to approximately $2.5 trillion (roughly 43% of global M&A volume) in 2021.

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Boardwalk Pipeline v. Bandera

Gail Weinstein is Senior Counsel, Steven J. Steinman and Brian T. Mangino are Partners at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Ms. Weinstein, Mr. Steinman, Mr. Mangino, Steven Epstein, Randi Lally and Mark H. Lucas, and is part of the Delaware law series; links to other posts in the series are available here. Related research from the Program on Corporate Governance includes Independent Directors and Controlling Shareholders (discussed on the Forum here) by Lucian Bebchuk and Assaf Hamdani.

In Boardwalk Pipeline Partners, LP v. Bandera Master Fund LP (Dec. 19, 2022), the Delaware Supreme Court reversed a Court of Chancery decision (Nov. 12, 2021) that had ordered the general partner of Boardwalk (a master limited partnership) to pay the former public unitholders almost $700 million in damages in connection with the general partner’s $1.56 billion take-private of Boardwalk.

Notably, the Supreme Court did not overturn the Court of Chancery’s factual findings that the General Partner and its affiliates had (i) opportunistically timed the take-private to occur during a temporary period of regulatory uncertainty and declining prices for Boardwalk’s units, and (ii) manipulatively pressured their law firm to deliver a “contrived,” “sham” opinion to satisfy the sole condition to the general partner’s exercise of its call right to acquire the public units. Nonetheless, the Supreme Court overturned the Court of Chancery’s legal holding that the general partner was liable for willful misconduct.

Instead, the Supreme Court viewed the general partner as simply having made “full use” of the broad “flexibility” a controller is permitted under Delaware law when its fiduciary duties have been contractually eliminated and the absence of those duties has been fully disclosed to investors. “The Partnership Agreement allowed Boardwalk to exercise the call right to its advantage—and to the disadvantage of the minority unitholders—free from fiduciary duties,” the Supreme Court wrote. The Supreme Court also held that the opinion of counsel the general partner obtained satisfied the contractual condition to exercise of the call right. The Supreme Court stated that the “proper focus” for the court was not on the validity of the legal opinion but on whether the general partner had acted reasonably in relying on it. The general partner had acted reasonably in relying on it, the Supreme Court concluded, based on its having obtained and relied on a second opinion from another law firm—which was not challenged—that opined that it would be within the general partner’s reasonable judgment to decide to rely on the first opinion. As the partnership agreement provided a conclusive presumption of good faith for the general partner when relying on advice of counsel, the general partner was presumed not to have engaged in willful misconduct and was entitled to exculpation from damages.

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Proxy voting policy for U.S. portfolio companies

John Galloway is Global Head of Investment Stewardship at Vanguard, Inc. This post is based on a publication by Vanguard Investment Stewardship.

Introduction

The information below, organized according to Vanguard Investment Stewardship’s four principles, is the voting policy adopted by the Boards of Trustees of the Vanguard-advised funds (the “Funds’ Boards”)[1] and describes the general positions of the funds on proxy proposals presented for shareholders to vote on by U.S.- domiciled companies.

It is important to note that proposals often require a facts-and-circumstances analysis based on an expansive set of factors. Proposals are voted case by case, under the supervision of the Investment Stewardship Oversight Committee and at the direction of the relevant Fund’s Board. In all cases, proposals are voted as determined in the best interests of each fund consistent with its investment objective.

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Corporate Officers, Not Just Directors, Can Be Liable for Duty of Oversight Violations

Jonathan K. Youngwood, Nicholas Goldin, and Stephen Blake are Partners at Simpson Thacher & Bartlett LLP. This post is based on their Simpson Thacher memorandum and is part of the Delaware law series; links to other posts in the series are available here. Related research from the Program on Corporate Governance includes Monetary Liability for Breach of the Duty of Care? (discussed on the Forum here) by Holger Spamann. 

In an important opinion that will have significant implications for derivative lawsuits arising from corporate crises, ESG issues and financial challenges, Vice Chancellor Laster on January 25, 2023 denied a motion to dismiss a derivative lawsuit alleging that the former head of human resources (“Defendant”) for global fast food company McDonald’s breached his fiduciary duties by (i) consciously ignoring red flags regarding sexual harassment and misconduct at the company and (ii) personally engaging in sexual harassment. In re McDonald’s Corp. S’holder Derivative Litig., No. 2021-0324, 2023 WL 387292 (Del. Ch. Jan. 25, 2023).

Vice Chancellor Laster announced that “[t]his decision clarifies that corporate officers owe a duty of oversight[,]” rejecting Defendant’s contention that Delaware law does not impose obligations on corporate officers that are comparable to the duty of oversight articulated for directors in In re Caremark International Inc. Derivative Litigation, 698 A.2d 959 (Del. Ch. 1996).

In concluding that Defendant owed a duty of oversight, the court explained that Defendant “had an obligation to make a good faith effort to put in place reasonable information systems so that he obtained the information necessary to do his job and report to the CEO and the board, and he could not consciously ignore red flags indicating that the corporation was going to suffer harm.”

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ESG in 2023: Politics and Polemics

David A. Katz is a Partner and Laura A. McIntosh is a Consulting Attorney at Wachtell, Lipton, Rosen & Katz. This post is based on their Wachtell memorandum. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance (discussed on the Forum here) and For Whom Corporate Leaders Bargain (discussed on the Forum here) both by Lucian A. Bebchuk and Roberto TallaritaRestoration: 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 is poised to become a major element of nonfinancial reporting at the very moment that it is becoming highly controversial and politicized.  New European Union rules regarding mandatory ESG reporting will affect public and private U.S. companies that meet certain EU-presence thresholds or—significantly—are part of the value chain of an entity that is required to make the mandatory disclosures.  This development represents a significant departure from past practices and will reach much farther than many companies may have anticipated.  In the United States, the Securities and Exchange Commission is on the verge of adopting climate-related disclosure rules, possibly heralding the start of increasingly onerous ESG reporting obligations.  These regulatory developments are supported by many, though not all, institutional investors, and the extent of such support going forward is likely to influence the future direction of ESG disclosure.

Over the past year, an anti-ESG backlash has flourished in the United States, led by conservative politicians and investors.  Florida governor Ron DeSantis summarized the thesis of the backlash in a recent statement:  “Corporate power has increasingly been utilized to impose an ideological agenda on the American people through the perversion of financial investment priorities under the euphemistic banners of environmental, social, and corporate governance and diversity, inclusion, and equity.”  At the World Economic Forum summit in Davos last week, a number of executives expressed frustration and concern over the intensifying drama around ESG.  Like it or not, however, executives and investors will have to contend with ESG controversies and disclosure obligations for the foreseeable future while staying focused on their strategic priorities.  Proactive board oversight—of both ESG disclosure practices and ESG-related controversies—will be essential to managing companies’ reputational risk strategy around ESG.

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Does Greater Public Scrutiny Hurt a Firm’s Performance?

Benjamin Bennett is Assistant Professor at the Tulane University A.B. Freeman School of Business; René M. Stulz is the Everett D. Reese Chair of Banking and Monetary Economics at the Fisher College of Business at The Ohio State University; and Zexi Wang is an Associate Professor at the Lancaster University School of Management. This post is based on their recent paper.

CEOs are often concerned about the public scrutiny that comes with leading a public firm. Founders want their firm to stay private to avoid that scrutiny. Public scrutiny can be valuable, however, as it can lead to more monitoring of firms, which may improve performance. At the same time, greater attention can have adverse effects. For instance, it can distract managers, preventing them from spending their time on issues internal to the firm, and can make it difficult for firms to stand out and implement policies that may be unpopular with the public. Consequently, while public attention may have a positive side, it may also have a dark side. In this paper, we investigate whether public scrutiny benefits firm performance. We find evidence that an increase in public scrutiny has an adverse effect on firm performance.

Public attention varies among public firms. Some firms consistently receive more attention because they are more prominent or salient. For firms subject to more scrutiny, mistakes may have larger consequences as they are noticed more. Policy differences with comparable firms will be better known and raise more questions. Firm actions may be more likely to be noticed and criticized by politicians. The firm may become more exposed to legal and regulatory actions. As a result, greater attention could affect performance negatively and may force firms to take actions they would not take absent the greater attention. For instance, greater public attention might cause management to choose policies more similar to those of peers even if it would not do so in the absence of greater public scrutiny. Management might do so because it does not want its policies to stand out, because sectors of the public push for such policies, or because these policies are optimal given the heightened attention. We therefore investigate whether one channel through which greater public attention affects performance is in causing firms with greater attention to have policies more similar to their peers.

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