Monthly Archives: October 2023

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.

READ MORE »

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.

READ MORE »

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%.

READ MORE »

SEC Adopts Updates to Schedule 13D and 13G Reporting

Andrew Freedman and Elizabeth Gonzalez-Sussman are Partners at Olshan Frome Wolosky LLP. This post is based on their Olshan 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 Securities and Exchange Commission (the “SEC”) announced that it has adopted amendments to the rules governing beneficial ownership reporting on Schedules 13D and 13G.

In its adopting release entitled “Modernization of Beneficial Ownership Reporting,” the SEC has amended certain rules regarding the beneficial ownership reporting regime, most notably by shortening the deadline for filing an initial Schedule 13D from the existing ten calendar days after the date one crosses the 5% beneficial ownership threshold to five business days after crossing the threshold and clarifying that the deadline for filing Schedule 13D amendments will be within two business days after the triggering event.

We are pleased that the new rule amendments set forth more reasonable filing deadlines than those initially proposed by the SEC in February 2022 and do not codify certain rules governing group activity or when to deem certain holders of cash-settled derivative securities as beneficial owners of the reference security, as originally proposed. For example, the originally proposed rules, if adopted, would have (1) required an initial Schedule 13D to be filed within five calendar days after crossing the 5% beneficial ownership threshold and Schedule 13D amendments to be filed within one business day of a triggering event; and (2) codified circumstances under which two or more persons would be deemed to have formed a “group” within the meaning of Section 13(d)(3) of the Exchange Act.

READ MORE »

The CEO Shareholder: Straightforward Rewards for Long-term Performance

Joel Paula is a Research Director at FCLTGlobal. This post is based on a FCLTGlobal memorandum by Mr. Paula, Jess Gaspar, Matt Leatherman, and Sarah Williamson. Related research from the Program on Corporate Governance includes Paying for Long-Term Performance (discussed on the Forum here) by Lucian Bebchuk and Jesse Fried.

EXECUTIVE SUMMARY

To be successful, companies need to attract and reward leaders who create value over the long term, but executive remuneration often focuses on short- term targets. Shareholders and their advisors similarly focus on short-term returns as a primary metric in the evaluation of pay plans. Replacing these short term-oriented approaches with direct long-term stock ownership by executives is a better solution.

It’s no surprise that executive remuneration stands out as one of the most visible and closely examined aspects of a publicly listed company’s corporate governance program.

Companies, and their corporate boards who set remuneration policy, are facing increasing pressure on executive pay amid rising shareholder scrutiny of pay plan proposals. Last year’s proxy season in the United States saw a record number of say-on-pay failures. Yet say-on-pay voting at publicly listed companies has arguably had the opposite of its intended effect, driving up executive compensation and showing little relationship to long-term shareholder interests.

Total shareholder return is the most common metric that shareholders employ to align interests, but it is often short term-oriented. By tying executive pay to stock prices over short periods of time, companies and investors are actually putting their long-term interests at risk.

READ MORE »

The 401(k) Conundrum in Corporate Law

Natalya Shnitser is an Associate Professor at Boston College Law School. This post is based on her article forthcoming in the HBLR. 

With over $10 trillion in assets, employer-sponsored defined-contribution retirement plans play an important role in the corporate governance ecosystem. Yet the governance of such plans has been largely overlooked in existing corporate law scholarship.

In The 401(k) Conundrum in Corporate Law, forthcoming in the Harvard Business Law Review, I draw on recent developments in employee benefits law—including the dramatic rise of retirement plan litigation—to fill in gaps in the academic analysis of the relationship between institutional investors and corporate retirement plans.

Scholarship on institutional investors has emphasized that the largest fund managers also have business lines that offer services to retirement plans sponsored by U.S. companies, including the 401(k) plans now commonly offered by private-sector employers. As a result, scholars have advanced the theory that institutional investors—and particularly mutual funds—have been deferential to corporate management at least in part out of fear of losing the corporations’ retirement plan business. Under this theory, the incentives to preserve or grow their 401(k) business—for example, to be selected as the recordkeepers or to have their index funds included on the investment menus of corporate plans—may cause mutual fund managers to vote with corporate management, even when doing so may not be in the best interest of the fund investors.

READ MORE »

California enacts major climate-related disclosure laws

Loyti Cheng and David A. Zilberberg are Counsels, and Emily Roberts is a Partner at Davis Polk & Wardwell LLP. This post is based on a Davis Polk memorandum by Ms. Cheng, Mr. Zilberberg, Ms. Roberts, Stephen A. Byeff, Michael Comstock, and Timothy J. Sullivan. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance (discussed on the Forum here) and Does Enlightened Shareholder Value Add Value? (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) 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; Corporate Purpose and Corporate Competition (discussed on the Forum here) by Mark J. Roe.

Under a pair of California laws signed by Governor Newsom on October 7, 2023, many large U.S. companies will be required to make broad-based climate-related disclosures starting as early as 2026. These laws will have a profound impact on companies doing business in California, with certain disclosure requirements going beyond the requirements of the SEC’s proposed climate-related disclosure rule or the current practices of most public companies.

California passed two climate-related disclosure bills:

  • S.B. 253, the Climate Corporate Data Accountability Act, which will require certain companies to disclose their direct (scope 1), indirect (scope 2) and value chain (scope 3) greenhouse gas (GHG) emissions, and
  • S.B. 261, the Climate-Related Financial Risk Act, which will require certain companies to disclose climate-related financial risks pursuant to the Task Force on Climate-Related Financial Disclosures (TCFD) recommendations.

Both bills lack crucial detail and are unclear in several key respects, and companies will have to await further amendments or implementing regulations to understand their true impact. Ultimately, these laws will require thousands of companies to devote significant resources and incur significant expenses to develop the infrastructure necessary to support these new disclosure requirements, which in certain critical ways go beyond the forthcoming SEC climate-related disclosure rule (applicable to most domestic and foreign private issuer public companies). In addition, some companies that will be subject to the California bills may also be subject to the EU’s Corporate Sustainability Reporting Directive (CSRD) (applicable to companies with EU operations meeting certain thresholds). As such, companies will likely need to be prepared to contend with overlapping, yet distinct, climate-related disclosure requirements in multiple jurisdictions.

READ MORE »

TNFD Recommendations for Nature Related Disclosures

Austin J. Pierce is an Associate, Betty M. Huber and Sarah E. Fortt are Partners at Latham & Watkins LLP. This post is based on a Latham memorandum by Mr. Pierce, Ms. Huber, Ms. Fortt, Paul Davies, Michael D. Green, and James Bee. 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 TallaritaFor Whom Corporate Leaders Bargain (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; 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.

TNFD looks to raise natural capital on par with climate in organizations’ disclosure of sustainability-related impacts, dependencies, risks, and opportunities.

Key Points:

  • Natural capital is quickly rising in importance for various public and private sector
  • The Taskforce on Nature-related Financial Disclosures’ recommendations are likely to serve as a catalyst for further expectations in this area.
  • Organizations may wish to start developing a strategy on natural capital to reflect these

On September 18, 2023, the Taskforce on Nature-related Financial Disclosures (TNFD) published recommendations for organizations’ assessment, management, and disclosure of nature-related issues (the Recommendations). These recommendations were the result of a two-year engagement process, featuring several beta versions to receive and process commentary from a range of stakeholders. The process builds on several years of growing attention to the fundamental role of nature — including the 2022 Global Biodiversity Framework that nearly 200 countries adopted in a Paris Agreement-type moment for nature.

Several high-profile companies, asset managers, and civil society organizations have endorsed TNFD. Paired with emerging regulatory attention on nature and biodiversity, this endorsement is likely to speed adoption of the Recommendations — which many anticipate will follow a similar path as the recommendations of the Task Force on Climate-related Financial Disclosures (TCFD) took with climate. As such, companies need to be aware of these developments and start considering a plan forward.

This Client Alert provides an overview of the Recommendations, as well as next steps and parallel developments in the market. It also highlights initial steps that organizations should consider in developing their nature-related strategies.

READ MORE »

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

Gail Weinstein is Senior Counsel, Philip Richter and  Steven Epstein are Partners at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Ms. Weinstein, Mr. Richter, Mr. Epstein, Andrea Gede-Lange, Matthew V. Soran, and Thomas Lee, 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 Are M&A Contract Clauses Value Relevant to Bidder and Target 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.

In In re BGC Partners (Aug. 10, 2023), the Delaware Supreme Court, in an en banc decision, without commentary, affirmed the Court of Chancery’s post-trial decision (Aug. 19, 2022) holding that the acquisition of a company indirectly controlled by the buyer’s controller met the entire fairness standard—notably, notwithstanding the lower court’s finding that there were serious flaws in the sale process. BGC Partners follows two other decisions in recent years in which the Court of Chancery also has found entire fairness satisfied in conflicted-controller transactions despite serious flaws in the transaction process—Hsu Living Trust v. Oak Hill (2020) and ACP Master v. Sprint/Clearwater (2017). These decisions stand in contrast to the Delaware courts’ historic trend of virtually never finding, when the entire fairness standard applies, that it has been satisfied.

Key Points

  • There is now increased potential for a buyer to establish that a transaction meets the stringent “entire fairness” standard—even if the sale process was seriously flawed. BGC Partners furthers the court’s evolution toward an emphasis on the fairness of the price over the fairness of the process in the “unitary” entire fairness analysis. Notwithstanding this evolution, however, in our view, even after BGC Partners, in the event of a clearly materially unfair price or process, it would be unlikely that the court would find entire fairness satisfied.
  • There is still a high bar to establishing entire fairness—in each of the recent decisions, the court found that, although there were serious process flaws, there was strong evidence that the special committee and its advisors had functioned effectively and had achieved a fair price.
  • Buyers should consider taking certain steps to maximize the potential of a finding of entire fairness—see “Practice Points” below.

READ MORE »

Weekly Roundup: October 13-19, 2023


More from:

This roundup contains a collection of the posts published on the Forum during the week of October 13-19, 2023

2023 Proxy Season Review


Statement by Commissioner Uyeda on Final Rules Regarding Short Sale Activity


Statement by Chair Gensler on Final Rules Regarding Short Sale Activity



The Social Costs (and Benefits) of Dual-Class Stock


2024 U.S. Proxy Season: Proxy Voting, Governance, and ES Matters


Standardization and Innovation in Venture Capital Contracting: Evidence from Startup Company Charters


Important MFW Developments


Securities Law Precedents, Legal Liability, and Financial Reporting Quality


Directors: Take Activist Threats to Your Reputation with a Grain of Salt


Considerations for Technology Companies in Pre-IPO Limbo


Rethinking Acting in Concert: Activist ESG Stewardship is Shareholder Democracy


Page 2 of 6
1 2 3 4 5 6