Yearly Archives: 2023

It’s Time to Call a Truce in the Red State/Blue State ESG Culture War

Robert Eccles is Visiting Professor of Management Practice at Oxford University Said Business School and Eli Lehrer is the co-founder and President of the R Street Institute. This post is based on their recent piece. 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 TallaritaHow Much Do Investors Care about Social Responsibility? (discussed on the Forum here) by Scott Hirst, Kobi Kastiel, and Tamar Kricheli-Katz; Does Enlightened Shareholder Value add Value (discussed on the Forum here) by Lucian Bebchuk, Kobi Kastiel, Roberto Tallarita; and Companies Should Maximize Shareholder Welfare Not Market Value (discussed on the Forum here) by Oliver Hart and Luigi Zingales.

Over the past year, the debate over Environmental, Social and Governance (ESG) standards in the United States has revealed stark policy contrasts between red and blue states. Red state officials have proposed and enacted “anti-boycott” bills which bar state business with firms that divest from favored industries. Blue states, on the other hand, have widely considered efforts to mandate divestments from the same industries. Neither approach makes economic sense. Recognizing this creates a real opportunity for a truce, based on fiduciary duty and the separation of political issues from investment decisions.

And we need a truce because the pace of legislation about ESG is only accelerating. Data collected by the law firm Simpson Thacher & Bartlett shows that at least 28 policies and laws have taken effect since 2021 alone and, as of the spring of 2023, there are at least 13 pending bills related to ESG. This doesn’t count the enormous number of existing policies–everything from preferences for small businesses to laws against investing state funds with companies that operate in certain countries–that would fall under the ESG umbrella if proposed today. While the stated financial protection and future-proofing objectives behind these proposals are worth consideration, they are bad policies likely to fail on their own terms while doing significant fiscal damage.

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The Imperfect CEO

Justus O’Brien co-leads the Board & CEO Advisory Partners Practice and Dean Stamoulis is a Managing Directer at Russell Reynolds Associates. This post is based on their Russell Reynolds memorandum.

Why businesses should embrace the imperfect CEO

Imperfection isn’t failure. Yet when it comes to CEO succession, businesses today often expect candidates to be the full embodiment of excellence and success—to be perfect.

They expect CEOs to avoid any missteps as they set the direction and strategy of the company, lead and develop the executive team, build and maintain relationships, make decisions, communicate effectively, manage financial performance, and demonstrate integrity and ethical leadership.

And this lengthy list of expectations is only growing. New demands keep emerging, while old demands never drop off – from owning environmental, social, and governance (ESG) actions, to explaining approaches to data security.

As demands keep proliferating and perfection remains out of reach, would it be better for the individual and business if those in charge of CEO succession efforts embraced the “imperfect CEO”?

When CEOs can admit their flaws and mistakes, they create a sense of trust and authenticity with employees, investors, and other stakeholders.

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Significant Amendments to Private Fund Adviser Reporting on Form PF

Diane Blizzard is a Partner and Radhika Kshatriya is an Associate at Kirkland & Ellis LLP. This post is based on a Kirkland & Ellis memorandum by Ms. Blizzard, Ms. Kshatriya, Nick Hemmingsen, Daniel Kahl, Scott A. Moehrke, and Reed T. Schuster.

On May 3, 2023, the SEC voted to adopt significant amendments to Form PF on a 3-2 vote. [1] Form PF requires SEC-registered investment advisers to file reports with the SEC regarding private funds managed by such advisers and allows the Financial Stability Oversight Council to assess systemic financial risk to the U.S. financial system. Currently, reports on Form PF for private equity fund advisers (usually including real estate and private credit within this category) are filed annually. [2] Unlike many other SEC filings, Form PF filings are not public.

The new SEC Form PF requirements include:

  • new quarterly event-based reporting for certain significant events involving all private equity fund advisers; and
  • new categories of information for “large private equity fund advisers” (advisers that manage over $2 billion in private equity fund AUM) on fund strategies, fund-level borrowings and fund general partner (“GP”) and limited partner (“LP”) clawbacks, as well as certain expanded information for existing categories.

For the new event-based reporting requirements, the effective/compliance date is six months after the date of publication in the Federal Register. For the amendments to the existing sections of Form PF, the effective/compliance date is one year after the date of publication in the Federal Register (meaning such amendments will not impact the annual Form PF filings for advisers with a December fiscal year end until Form PF filings due in 2025).

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Florida Passes Farthest-Reaching Anti-ESG Law to Date

Leah Malone is a Partner and Emily B. Holland is Counsel, at Simpson Thacher and Bartlett LLP. This post is based on a Simpson Thacher & Bartlett LLP memorandum by Ms. Malone, Ms. Holland, Carolyn S. Houston, and May Mansour. 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; Reconciling Fiduciary Duty and Social Conscience: The Law and Economics of ESG Investing by a Trustee (discussed on the Forum here) by Max M. Schanzenbach and Robert H. Sitkoff; and Exit vs. Voice (discussed on the Forum here) by Eleonora Broccardo, Oliver Hart and Luigi Zingales.

On May 2, 2023, Florida’s Governor Ron DeSantis signed into law a bill designed to block the consideration of ESG factors in investment decisions. Going further than similar laws enacted in other states, [1] with the passage of House Bill 3 [2] (“HB 3”), Florida presents itself as a new standard-bearer in America’s anti-ESG movement. In requiring that investment decisions (and proxy voting decisions) for state pension assets be made on the basis of “pecuniary factors” only, the law echoes bills already passed in other states. But HB 3 also limits investment decisions for local governments, trust funds, and the state’s CFO. It prohibits the issuance of any ESG bonds in the state, limits state contracting, redefines what it means to be a qualified public depository, and imposes new external communications disclaimer requirements.

Below, we summarize the key provisions of HB 3 and offer a comparison against some of the anti-ESG laws on the books in other states. [3]

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Modernization of Beneficial Ownership Reporting Rule Proposal

Jonathan H. Gaines and David S. Rosenthal are Partners and Christopher Soares is an Associate at Dechert LLP. This post is based on their Dechert 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 P. Brav, Robert J. Jackson Jr., and Wei Jiang. 

The U.S. Securities and Exchange Commission (the “SEC”) announced on April 28, 2023, that it has reopened the comment period for its February 2022 Modernization of Beneficial Ownership Reporting rule proposal (the “Proposed Rule”). As discussed in our OnPoint on the proposal, the Proposed Rule would amend the beneficial-ownership reporting requirements under Sections 13(d) and 13(g) of the Securities Exchange Act of 1934, among other changes, by accelerating the filing deadlines for both Schedule 13D and Schedule 13G. The public comment period will now remain open until June 27, 2023, or until 30 days after the date of publication of the reopening release in the Federal Register, whichever is later.

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Weekly Roundup: May 19-25, 2023


More from:

This roundup contains a collection of the posts published on the Forum during the week of May 19-25, 2023



The State of Climate Investing


Anatomy of a Run: The Terra Luna Crash


Unlocking the Investment Potential of “S” in ESG




Importance of Special Litigation Committees in Maintaining Board Control Over Derivative Litigation


Diversity, Equity, and Inclusion


Venture Predation


2022 Asset Stewardship Report: Engagement and Voting


2022 Asset Stewardship Report: Engagement and Voting

Benjamin Colton is Global Head of Asset Stewardship, and Michael Younis is Vice President of Asset Stewardship at State Street Global Advisors. This post is based on their SSGA memorandum.

How We Engage

Our Asset Stewardship team has developed our Global Issuer and Stakeholder Engagement Guidelines to increase the transparency of our engagement philosophy, approach, and processes. This protocol is designed to communicate the objectives of our engagement activities and to facilitate a better understanding of our preferred terms of engagement with our investee companies. The protocol explains key engagement processes including:

  • Methodology for developing our annual engagement strategy
  • Information to include in engagement request emails
  • Information on how to request R-Factor scores
  • Our guidelines for engaging with investee companies
  • Our guidelines for engaging with activist investors or investors directly connected
    to Vote-No campaigns or shareholder proposals
  • Investor engagement protocol guidance

We review our Global Issuer and Stakeholder Engagement Guidelines annually as part of our strategic review process to ensure that our interactions with companies remain effective and meaningful. This includes reviewing indicators in our screening models and assessing emerging issues and trends.

Additionally, we take into account individual market nuances when evaluating practices or engaging on certain issues, as well as market practices and norms for engagement.

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Venture Predation

Matthew Wansley is an Associate Professor of Law, and Samuel Weinstein is a Professor of Law at Benjamin N. Cardozo School of Law. This post is based on their recent paper, forthcoming in the Journal of Corporation Law.

Uber once seemed poised to revolutionize urban transportation. Instead of hailing a cab in the street, you could order a ride on a mobile app. Uber’s fares were surprisingly cheap—often much cheaper than taxis. Yet drivers seemed to be making more with Uber than they could by driving a cab. Uber’s low fares attracted riders, and its relatively high pay attracted drivers. Uber grew quickly, taking market share from taxi companies, and forcing some into bankruptcy. It seemed that Uber had found cost efficiencies that had eluded hidebound taxi companies. But in hindsight it has become clear that Uber’s low fares and comparatively attractive driver pay were made possible only by massive venture capital subsidies. From the start, Uber racked up heavy losses. In the past few years, Uber fares have increased steadily, but the company still has not reached sustainable profitability. If its business model never added up, how did Uber come to dominate the market for urban transportation? Venture predation.

Predatory pricing is a strategy that firms use to suppress competition. The predator’s prey are its competitors. The predator aims to drive them out of the market. The strategy has two steps. First, the predator prices its product below its own costs, losing money, but attracting more customers and increasing its market share. Unable to tolerate the losses necessary to compete, the prey exit the market. Second, once the predator dominates the market, it raises its prices to supracompetitive levels, generating monopoly profits that let it recoup the cost of predation.

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Diversity, Equity, and Inclusion

Alex Edmans is a Professor of Finance, Academic Director, Centre for Corporate Governance at London Business School, Caroline Flammer is a Professor of International and Public Affairs and of Climate at Columbia University, and Simon Glossner an Economist at the Federal Reserve Board in the Research and Statistics Division. This post is based on their recent paper. Related research from the Program on Corporate Governance includes Politics and Gender in the Executive Suite (discussed on the Forum hereby Alma Cohen, Moshe Hazan, and David WeissWill 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.

Companies, investors, policymakers, and wider society are paying increased attention to diversity, equity, and inclusion (“DEI”) within firms. DEI initiatives have two motivations – that DEI improves a company’s long-term financial performance, and that it contributes to societal goals. Under both financial and social motives, the relevant measures of DEI are holistic. New ideas, and thus superior financial performance, stem from cognitive rather than purely demographic diversity. Similarly, social outcomes stem from providing opportunities to underrepresented groups across all areas, such as demographic, disability status, socioeconomic, and educational. Moreover, both goals require not only diversity but also equity and inclusion. Hiring minorities to tick a box, but failing to ensure that they can thrive and be themselves at work, will achieve neither the financial benefits of cognitive diversity nor the social outcomes of meaningful employment.

However, given measurement challenges, DEI metrics often focus narrowly on demographic diversity. For example, legal quotas or investor guidelines typically capture only the number of women on the board. Perhaps due to the narrowness of such a measure, academic research on the link between boardroom gender diversity and firm performance typically finds negative or insignificant effects. Similarly, company reports often include the percentage of females or ethnic minorities in the wider workforce, but neither measure captures cognitive diversity, nor equity and inclusion.

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Importance of Special Litigation Committees in Maintaining Board Control Over Derivative Litigation

Gail Weinstein is Senior Counsel, and Scott B. Luftglass and Peter L. Simmons are Partners at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Ms. Weinstein, Mr. Luftglass, Mr. Simmons, Philip RichterSteven Epstein and Warren S. de Wied and is part of the Delaware law series; links to other posts in the series are available here.

There has been strong focus on derivative suits in recent years in the context of M&A-related fiduciary claims, as well as Caremark oversight claims and COVID-19-related claims, being asserted by stockholders against corporate directors and officers on behalf of the corporation. In In re Baker Hughes, a GE Company, Deriv. Litig. (April 17, 2023), the Delaware Court of Chancery granted a motion to terminate a derivative suit brought against the former directors of Baker Hughes Incorporated that challenged the fairness of the company’s merger with an affiliate of its controller. The decision serves as an important reminder to boards that a properly formed and functioning special litigation committee (“SLC”)—comprised of independent and disinterested members, which acts in good faith and reaches reasonable conclusions—is a potent tool for a corporation to retain control over derivative claims, even when the plaintiffs have excused demand on the board to bring the litigation based on the board’s non-independence or conflicts.

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