Monthly Archives: October 2023

Expecting Corporate Prosociality

Hajin Kim is an Assistant Professors of Law at the University of Chicago Law School. This post is based on her paper forthcoming in the Journal of Legal Studies. 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; How Much Do Investors Care about Social Responsibility? (discussed on the Forum here) Scott Hirst, Kobi Kastiel, and Tamar Kricheli-Katz; Companies Should Maximize Shareholder Welfare Not Market Value (discussed on the Forum here) by Oliver D. Hart and Luigi Zingales; and Reconciling Fiduciary Duty and Social Conscience: The Law and Economics of ESG Investing by a Trustee (discussed on the Forum here) by Robert H. Sitkoff and Max M. Schanzenbach.

Expecting Corporate Prosociality

The long-running corporate purpose debate often assumes stakeholder preferences for corporate prosociality are exogenous: Investors, employees, and consumers want corporations to be prosocial or they don’t. My paper, Expecting Corporate Prosociality, on SSRN and forthcoming in the Journal of Legal Studies, develops and empirically tests the idea that rhetoric from the debate itself can influence these preferences and stakeholder demands. I find that expectations of exclusive profit maximization (that firms can and should maximize only profits) can reduce stakeholder demands for corporate prosociality. Such a loss in tangible incentives for corporate prosociality would reduce “win-wins”—what is both profitable and good for society.

Consider two worlds—caricatures to illustrate the point: In Profit Maximization World, people expect that businesses can and should maximize only profits. Paula, an employee for ABC Corp., learns that ABC Corp. will cut down old growth forest for a parking lot. She’s upset but doesn’t object. ABC Corp. must do what is most profitable, so what’s the point in complaining?

READ MORE »

What’s Next for Diversity Shareholder Proposals

David A. Bell is a Partner, and Ron C. Llewellyn is a Counsel at Fenwick & West LLP. This post is based on their Fenwick memorandum. Related research from the Program on Corporate Governance includes Social Responsibility Resolutions (discussed on the Forum here) by Scott Hirst.

Following the death of George Floyd and mass protests against racial inequity in 2020 culminating years of slowly building stakeholder pressure on various aspects of diversity, many companies expressed their commitment to racial justice and implemented or enhanced diversity, equity and inclusion (DEI) programs. Such programs included setting hiring and promotion goals for racial minorities, contracting with minority-owned suppliers and service providers, and providing scholarships or grants to institutions providing services to minority communities. There was also a similar increase in diversity-related shareholder proposals such as those related to board diversity, conducting civil rights or racial equity audits and reporting on the effectiveness of DEI programs, some of which received relatively high levels of support from shareholders. However, more recently, there has been some backlash against DEI programs (and ESG initiatives more broadly), including calls by some opponents to dismantle them.

This report examines recent trends in support of DEI programs and recent pushback as revealed by annual meeting proxy voting for DEI-related shareholder proposals since 2020. This report also discusses the voting guidelines and stewardship policies of three of the largest asset managers—BlackRock, Vanguard and State Street (the “Big Three”)—related to DEI shareholder proposals and their recent voting records on key DEI proposals, which can influence the success of such proposals, and compares it to their support of DEI shareholder proposals for the 2023 proxy season. Finally, we suggest some ways that companies can navigate the conflicting demands from various stakeholders regarding their DEI programs and initiatives in the current environment.

READ MORE »

AI and the Role of the Board of Directors

Holly J. Gregory is a Partner and co-chair of the Global Corporate Governance practice at Sidley Austin LLP. This post is based on The Governance Counselor piece.

Artificial intelligence (AI) has the capacity to disrupt entire industries, with implications for corporate strategy and risk, stakeholder relationships, and compliance that require the attention of the board of directors.

In 1950, Alan Turing, the father of computer science, famously asked, “Can machines think?” Since then, the application of computer science and algorithms to collect and analyze data, identify patterns, make predictions, and solve problems has advanced significantly. Today’s AI has become much better at mimicking aspects of human intelligence, such as “understanding” language, “perceiving” images, or “generating” new, albeit derivative, content (generative AI). AI is also advancing in its ability to self- improve its own performance (machine learning). (For more on AI and machine learning, see Artificial Intelligence and Machine Learning: Overview on Practical Law; for more on key terms used in descriptions of AI, machine learning, and generative AI, see Artificial Intelligence Glossary on Practical Law.)

As a transformative technology, AI has the capacity to disrupt entire industries, creating new business opportunities and presenting new risks for companies. Companies also play a key role in AI-related research and development (R&D) and deployment, with the potential for considerable societal impact. Boards of directors and their advisors need to consider:

  • How AI is currently used by the company and its competitors.
  • How AI may disrupt the company’s business and industry.
  • The strategic implications and risks associated with AI products and services.
  • The impact of AI applications on the workforce and other stakeholders.
  • The implications for compliance with legal, regulatory, and ethical obligations.
  • The governance implications of the use of AI and related policies and controls.

Board responsibility for managing and directing the company’s affairs requires oversight of the exercise of authority delegated to management, including oversight of legal compliance and ethics and enterprise risk management. The board’s oversight obligations extend to the company’s use of AI, and the same fiduciary mindset and attention to internal controls and policies are necessary. Directors must understand how AI impacts the company and its obligations, opportunities, and risks, and apply the same general oversight approach as they apply to other management, compliance, risk, and disclosure topics.

READ MORE »

The DNA of 2023 U.S. Sustainability Reports

Martha Carter is Vice Chair & Head of Governance Advisory, Matt Filosa is Senior Managing Director, and Diana Lee is Senior Vice President at Teneo. This post is based on a Teneo memorandum by Ms. Carter, Mr. Filosa, Ms.Lee, Sean Quinn, and Sydney Carlock. 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, 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; and Corporate Purpose and Corporate Competition (discussed on the Forum here) by Mark J. Roe.

Since we published our last study on U.S. sustainability reports 12 months ago, political attacks on ESG have escalated heading into the 2024 U.S. presidential campaign. As a result, companies are now facing critical questions on how to communicate their ESG strategies and initiatives, especially within annual sustainability reports that are now the norm for most companies.

For example, would eliminating the acronym “ESG” from corporate communications help quell the backlash? How can companies assess the risks and opportunities of proactively communicating their ESG strategies? What happens if companies miss or reset an ESG goal?

At the same time, global regulations mandating ESG disclosures from companies, including many U.S. companies, are being finalized. These global mandates for ESG disclosures are in direct conflict with the Republican-led antiESG movement in the U.S. Given all of this, companies should expect continued turbulence in the coming year.

To help companies navigate this environment, we are publishing a series of research reports based on our analysis of 250 sustainability reports from S&P 500 companies published in 2023. In this paper, the first of our series, we provide Teneo’s (i) study methodology; (ii) top 10 takeaways from 2023 sustainability reports and (iii) key statistics of 2023 sustainability reports. Over the next several months, we plan to publish follow-up pieces from Teneo ESG thought leaders on disclosure-related topics such as diversity, governance, executive compensation and materiality assessments, as well as a piece from Teneo Studio dedicated to effective sustainability report design.

READ MORE »

Weekly Roundup: September 29-October 5, 2023


More from:

This roundup contains a collection of the posts published on the Forum during the week of September 29-October 5, 2023

Startup Failure


Risk Management and the Board of Directors


California’s Proposed Bills Require Reporting on Climate Emissions and Risks


Secret and Overt Information Acquisition in Financial Markets


Director Elections under the Microscope



The 2023 Say on Pay Season – Outcomes and Observations


The Administrative Origins of Mandatory Disclosure


Proxy Voting Insights: Key ESG Resolutions


Do Consumers Care About ESG? Evidence from Barcode-Level Sales Data


How to Navigate Equity Plan Proposals


How to Navigate Equity Plan Proposals

Austin Vanbastelaer is Principal and Kyle McCarthy is a Senior Associate Consultant at Semler Brossy LLC. This post is based on their Semler Brossy memorandum.

Russell 3000 equity plan proposals are facing historically low shareholder support and higher failure rates in 2023. These headwinds likely reflect both increased shareholder and proxy advisor expectations in equity plan sizing and increased share usage pressure at companies in depressed markets.

Companies will want to slightly adjust their playbook and engage with shareholders differently. The path forward will likely only get tougher as investors and proxy advisors continue to push for equity plans with a shorter expected life, creating more frequent equity plan votes.

READ MORE »

Do Consumers Care About ESG? Evidence from Barcode-Level Sales Data

Jean-Marie Meier is a Visiting Assistant Professor of Finance at The Wharton School, University of Pennsylvania, Henri Servaes is Richard Brealey Professor of Corporate Governance at London Business School, Jiaying Wei is an Associate Professor of Finance at Southwestern University of Finance and Economics, and Steven Chong Xiao is an Associate Professor of Finance at University of Texas at Dallas – Naveen Jindal School of Management. This post is based on their working paper. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance (discussed on the Forum here); Does Enlightened Shareholder Value Add Value? (discussed on the Forum here) both by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita; The Perils and Questionable Promise of ESG-Based Compensation (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.

The interest of business leaders, academics, policymakers, and the general public in Environmental, Social, and Governance (ESG) issues has grown exponentially over time and reached an all-time high in 2023, based on Google Trends searches.  From the perspective of corporations and their leaders, an important question is whether ESG strategies help achieve higher profits and maximize shareholder wealth.

Despite a substantial number of articles on this issue, the mechanisms through which ESG activities could affect corporate performance and value remain poorly understood.  One possibility is that ESG efforts affect value through the discount rate channel. For instance, some investors may adjust their required rate of return because they derive utility from holding high ESG firms in their portfolios.  Another possibility is that ESG activities affect firm value because they lead to higher cash flows.  For example, customers could influence a firm’s revenues by adjusting their demand in response to the firm’s ESG policies.

READ MORE »

Proxy Voting Insights: Key ESG Resolutions

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 Illusory Promise of Stakeholder Governance (discussed on the Forum here) by Lucian A. Bebchuk and Roberto Tallarita; Companies Should Maximize Shareholder Welfare Not Market Value (discussed on the Forum here) by Oliver Hart and Luigi Zingales; Reconciling Fiduciary Duty and Social Conscience: The Law and Economics of ESG Investing by a Trustee (discussed on the Forum here) by Robert H. Sitkoff and Max M. Schanzenbach; and Exit vs. Voice (discussed on the Forum here) by Eleonora Broccardo, Oliver Hart, and Luigi Zingales.

Key Takeaways

The Volume of Shareholder Resolutions Keeps Rising

  • The number of shareholder resolutions proposed at U.S. companies grew by 18% in the 2023 proxy year to a total of 616, from 522 in 2022.
  • This followed an already strong increase of 16% in 2022, following the SEC’s decision to broaden the definition of permissible shareholder resolutions addressing “significant social policy issues.“
  • The recent increase included many resolutions on environmental and social (E&S) topics that asset managers rejected as “prescriptive” or “redundant.”

READ MORE »

The Administrative Origins of Mandatory Disclosure

Alexander I. Platt is Associate Professor at the University of Kansas School of Law. This post is based on his recent paper, forthcoming in The Journal of Corporation Law. 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; and Pre-Disclosure Accumulations by Activist Investors: Evidence and Policy by Lucian Bebchuk, Alon P. Brav, Robert J. Jackson Jr., Wei Jiang.

History looms large for securities regulation. For many in the field, the “founding” of the U.S. mandatory disclosure regime in the 1930s carries deep meaning, infusing current actions with legitimacy and purpose.

The familiar origin story is undeniably compelling. The brightest legal minds of their generation were called down from the ivory tower to help FDR rein in the excesses of Wall Street. Inspired by their intellectual mentor Louis Brandeis, they overcame fierce resistance from the securities industry (who opposed regulation) as well as from the corporatist wing of New Deal reformers (who favored a broader economic planning role for the government) to craft a legislative solution that was so well-conceived that it has remained in place essentially unchanged for nearly a century – the Securities Act of 1933.

But there’s just one problem: it’s not actually what happened.

In a new paper, “The Administrative Origins of Mandatory Disclosure,” I present a revisionist history of the origins of mandatory corporate disclosure. Drawing on archival sources and other primary documents, I challenge three core assumptions that underlie standard accounts of SecReg’s “founding” moment.

READ MORE »

The 2023 Say on Pay Season – Outcomes and Observations

Linda Pappas is Principal, and Jose Lawani and Perla Cuevas are Consultants at Pay Governance LLC. This post is based on their Pay Governance memorandum.

Say on Pay (SOP) votes were mandated by the Dodd-Frank Act of 2010 as a mechanism to allow shareholders to voice their opinions about the level and structure of executive compensation as well as promote the engagement of companies and their shareholders regarding a key area of corporate governance. The general view was that shareholders would increasingly reject executive pay programs by voting against the SOP proposal in years of poor total shareholder return (TSR) performance unless executive pay was reduced. Our findings show that the 2022 and 2023 SOP seasons run counter to this premise for S&P 500 Index companies. SOP failures in 2022 hit a record high (n=22) when TSR performance was strong (1- and 3-year TSR of 27% and 24%, respectively), whereas SOP failures in 2023 unexpectedly decreased (n=11) when TSR performance declined (1- and 3-year TSR of -19% and +6%, respectively).

As published in our recent Viewpoint entitled, “The 2023 Say on Pay Season – Outcomes and Considerations – April 2023,” we reviewed the full history of SOP outcomes for S&P 500 companies beginning in 2011 through 2022. At the time, we anticipated an active and volatile 2023 SOP season given the decline in TSR performance of the S&P 500 Index in calendar year 2022 (down 19%), historically much lower than any previous year in the SOP era. This Viewpoint adds the 2023 SOP season to our previous findings and highlights the outcomes, which were unexpected given the negative TSR performance in calendar year 2022.

READ MORE »

Page 5 of 6
1 2 3 4 5 6