Monthly Archives: December 2023

Corporate Board Diversity: A Comment from Thirty Percent Coalition

Julie Zuraw is President & CEO, Susan Angele is Board Chair and Esther Aguilera is Board Vice Chair at Thirty Percent Coalition. This post is based on a recent comment letter submitted to the U.S. Securities and Exchange Commission regarding the Commission’s consideration of board diversity disclosure. Related research from the Program on Corporate Governance includes Politics and Gender in the Executive Suite (discussed on the Forum here) by Alma Cohen, Moshe Hazan and David Weiss; Will Nasdaq’s Diversity Rules Harm Investors? (discussed on the Forum here) by Jesse M. Fried; and Duty and Diversity (discussed on the Forum here) by Chris Brummer and Leo E. Strine Jr.

This post is based on a comment letter submitted to the SEC regarding Corporate Board Diversity by Thirty Percent Coalition. Below is the text of the letter with minor adjustments to eliminate the correspondence-related parts.

Dear Ms. Countryman:

The Thirty Percent Coalition (the “Coalition”) respectfully submits this letter to the U.S. Securities and Exchange Commission (“SEC”) to comment on its consideration of a rule proposal related to corporate board diversity.

The Thirty Percent Coalition, founded in 2011, is a pioneering advocate for increased diversity on corporate boards and in senior leadership. Its vision is for senior leadership and boards of directors to reflect the gender, racial, and ethnic diversity of the United States workforce. The mission of the Coalition is to increase diversity in boardrooms and senior leadership at both public and private companies through investor engagement and collaborative action. Its focus is on the demand side – collaboratively influencing companies to open their boardroom and C-Suite searches for all qualified candidates with skill sets matched to their corporate strategies.

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Talent management: an evolving board imperative

Matt DiGuiseppe is a Managing Director, Maria Moats is a Leader, and Gregory Johnson is a Director at the Governance Insights Center, PricewaterhouseCoopers LLP. This post is based on their PwC report.

Today’s increasingly unpredictable business environment can make management decisions more consequential. Companies face pressure to control costs and innovate amid uncertain economic conditions, a competitive talent landscape and a business environment that likely requires significant digital transformation. Talent management — having the right people in place to make those decisions — is increasingly important. And boards can play a critical role in achieving success on that front.

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The Dynamics of Corporate Governance: Evidence from Brazil

Antonio Gledson de Carvalho is an Assistant Professor at the Fundação Getúlio Vargas School of Business at São Paulo, Humberto Gallucci Netto is a Professor at the Federal University of São Paulo, and Bernard S. Black is Nicholas D. Chabraja Professor at Northwestern University. This post is based on their recent paper forthcoming in the European Corporate Governance Institute’s Finance Research Paper Series. Related research from the Program on Corporate Governance includes The Elusive Quest for Global Governance Standards (discussed on the Forum here) by Lucian A. Bebchuk and Assaf Hamdani; What Matters in Corporate Governance? (discussed on the Forum here) by Lucian A. Bebchuk, Alma Cohen, and Allen Ferrell; and Learning and the Disappearing Association between Governance and Returns (discussed on the Forum here) by Lucian A. Bebchuk, Alma Cohen, and Charles C.Y. Wang.

Researchers know little about what factors influence firms’ choices about firm level corporate governance (FLCG or CG). Durnev and Kim’s (DK, 2005) theoretical model predicts that (Prediction 1) firms with better investment opportunities, more concentrated ownership, and greater need for external financing (EFN) will have better FLCG; (Prediction 2) firms that have better FLCG are valued higher; and (Prediction) 3 these relations are stronger in weak legal regimes.

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Weekly Roundup: December 22-28, 2023


More from:

This roundup contains a collection of the posts published on the Forum during the week of December 22-28, 2023

CEO Succession and The Walt Disney Company


Delaware Chancery Court Addresses Benefit-of-the-Bargain Damages in Busted Deals


Refreshing Insider Trading Policies Ahead of Mandatory Public Disclosure


Carrots & Sticks: Understanding the DOJ’s New Compliance Rules



Chancery Court Upholds Identity-Based Voting Within Single Class of Stock


Chancery Court Upholds Identity-Based Voting Within Single Class of Stock

Marina C. Leary is an Associate and Benjamin Strauss and Nathan E. Barnett are Partners at McDermott Will & Emery. This post is based on their McDermott memorandum and is part of the Delaware law series; links to other posts in the series are available here.

A recent opinion from the Delaware Court of Chancery reaffirmed a Delaware corporation’s ability to create a class of stock with voting power that is based on a formula in the certificate of incorporation (Charter) or on facts ascertainable outside the Charter (including the identity of the holder), even if it generates different results for different holders, so long as it applies across all shares of such class. Colon v. Bumble, Inc., No. 2022-0824-JTL, 2023 WL 5920100 (Del. Ch. Sept. 12, 2023). This case serves as a reminder of the flexibility afforded to Delaware corporations in allocating voting power amongst stockholders, even stockholders within the same class of stock.

FASB issues final ASU requiring enhanced disclosure of segment expenses

Cydney S. Posner is Special Counsel at Cooley LLP. This post is based on her Cooley memorandum.

The FASB has announced a final Accounting Standards Update designed to improve disclosures about public companies’ reportable segments, particularly disclosures about significant segment expenses—information that the FASB says investors frequently request. The ASU indicates that investors and others view segment information as “critically important in understanding a public entity’s different business activities. That information enables investors to better understand an entity’s overall performance and assists in assessing potential future cash flows.”  According to FASB Chair Richard R. Jones, the “new segment reporting guidance is based on the FASB’s extensive outreach with stakeholders, including investors, who indicated that enhanced disclosures about a public company’s segment expenses would enable them to develop more decision-useful financial analyses….It will improve financial reporting by providing additional information about a public company’s significant segment expenses and more timely and detailed segment information reporting throughout the fiscal period.” Previously, at the proposal stage, Jones had referred to the ASU as the “FASB’s most significant change to segment reporting since 1997.” While the extent of new information will vary among entities, the FASB “expects that nearly all public entities will disclose new segment information under the amendments.” It’s worth pointing out here that the financial reporting changes could well lead to changes in MD&A disclosure. The ASU will apply to all public entities required to report segment information (under Topic 280).  Compliance with the new guidance will be required starting in annual periods beginning after December 15, 2023.

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Carrots & Sticks: Understanding the DOJ’s New Compliance Rules

Andrew Rosini is a Senior Managing Director and Leader of Global Risk & Investigations Practice; and Toni Mele and Tracy Wilkison are Senior Managing Directors at FTI Consulting. This post is based on a FTI Consulting memorandum by Mr. Rosini, Ms. Mele, Ms. Wilkison, and Pat Pericak.

The Department of Justice is pushing companies to police themselves, voluntarily report misconduct and improve compliance programs. The silver lining? Companies that implement strong compliance programs and proactively report bad behavior may see reduced fines – and other dispensations.

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Refreshing Insider Trading Policies Ahead of Mandatory Public Disclosure

Harold Halbhuber is a Partner and Katya Bogdanov is an Associate at Shearman & Sterling LLP. This post is based on their Shearman memorandum. Related research from the Program on Corporate Governance includes Insider Trading via the Corporation (discussed on the Forum here) by Jesse M. Fried.

Recent SEC Focus on Insider Trading

Insider trading has been a focus of recent regulatory rulemaking and enforcement. In December 2022, the SEC adopted significant rule changes designed to curb perceived abuse of Rule 10b5-1, which allows insiders to avoid liability for trades executed under a prearranged plan that was put in place when they did not have material nonpublic information (MNPI). In a rare display of unity, all five SEC Commissioners voted to approve these changes. March 2023 saw the first ever insider trading prosecution based exclusively on the use of Rule 10b5-1 trading plans, when the Department of Justice (DOJ) charged the CEO of a health care company for his allegedly fraudulent use of such plans to trade company stock.[1] And just a few months ago, in June 2023, the SEC announced charges against 13 individuals, including corporate executives and insiders, in four separate insider trading schemes, with the DOJ bringing concurrent criminal actions against most of the defendants.[2]

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Delaware Chancery Court Addresses Benefit-of-the-Bargain Damages in Busted Deals

Amy Simmerman, Brad Sorrels, and Ryan Greecher are Partners at Wilson Sonsini Goodrich & Rosati. This post is based on a memorandum by Ms. Simmerman, Mr. Sorrels, Mr. Greecher, Joe Slights, Adrian Broderick, and James Griffin-Stanco 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.

On October 31, 2023, in Crispo v. Musk, Chancellor Kathaleen St. J. McCormick of the Delaware Court of Chancery issued a decision addressing an important question that arises in mergers and acquisitions: if one of the parties (usually the buyer) refuses to close the transaction, can the jilted company (usually the target company) obtain “benefit-of-the-bargain” damages (including the lost premium that would have gone to stockholders)? At least based on the circumstances before it, the court answered that question in the negative, indicating that only stockholders who are third-party beneficiaries of the agreement, not the corporation, would be entitled to such damages. We expect the decision to engender significant discussion and impact merger agreement drafting.

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CEO Succession and The Walt Disney Company

David F. Larcker is the James Irvin Miller Professor of Accounting, Emeritus; and Brian Tayan is a researcher with the Corporate Governance Research Initiative at Stanford Graduate School of Business. This post is based on their recent paper. Related research from the Program on Corporate Governance includes Lucky CEOs and Lucky Directors (discussed on the Forum here) by Lucian A. Bebchuk, Yaniv Grinstein, and Urs Peyer; and Paying for Long-Term Performance (discussed on the Forum here) by Lucian A. Bebchuk and Jesse M. Fried.

We recently published a paper on SSRN (“CEO Succession and The Walt Disney Company”) that examines long-running succession issues at The Walt Disney Company.

CEO succession planning is a critical exercise for any organization. All companies, regardless of the status and performance of their CEO, are expected to have a plan in place to replace that individual when the need arises. This includes the identification of internal and external candidates (including an “emergency” candidate if necessary), development programs for internal executives, mentoring and feedback, and regular review and discussion among the board and with the sitting CEO. Indeed, survey data shows that directors recognize CEO succession planning as one of their most important oversight responsibilities, and most believe they dedicate sufficient time and effort toward it.

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