Yearly Archives: 2023

United States v. Blaszczak Continues to Reshape Insider Trading Law

Posted by Charles J. Clark, Gary Stein, and Craig S. Warkol, Schulte Roth & Zabel LLP, on
Tuesday, March 21, 2023
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Charles J. Clark, Gary Stein, and Craig S. Warkol are Partners at Schulte Roth & Zabel LLP. This post is based on a SRZ memorandum by Mr. Clark, Mr. Stein, Mr. Warkol, Peter H. White, Douglas I. Koff and Benjamin Lewson. Related research from the Program on Corporate Governance includes Insider Trading via the Corporation (discussed on the Forum here) by Jesse M. Fried.

On Dec. 27, 2022, the U.S. Court of Appeals for the Second Circuit issued another decision in United States v. Blaszczak (“Blaszczak II”), this time delivering a victory to defendants accused of insider trading based on non-public predecisional government information. [1] The case was heard by the Second Circuit following remand from the Supreme Court after its ruling in Kelly v. United States, 140 S. Ct. 1565 (2020), clarifying what can be considered “property” under federal criminal statutes. We had previously written about the Blaszczak case while the decision from the Second Circuit was pending [2] and, earlier, after the Second Circuit’s initial ruling in the case. [3]

Blaszczak is a prime example of how the law of insider trading is judge-made. To bring insider trading cases in the absence of a federal statute targeting insider trading, prosecutors have adapted various more general statutes, including the anti-fraud prohibitions in Section 10(b) of the Securities Exchange Act and Rule 10b-5 promulgated thereunder and, increasingly, a potpourri of other federal statutes. Blaszczak illustrates the overlapping, conflicting and uncertain scope of these different laws. Going forward, Blaszczak will continue to influence how insider trading cases are prosecuted, although what impact it will have remains to be seen.

Background

The underlying prosecution was brought based on allegations that David Blaszczak shared non-public information given to him by Christopher Worrall, an employee of the Centers of Medicare and Medicaid Services (“CMS”) at the time. The information related to upcoming announcements by CMS adjusting the reimbursement rates for Medicare and Medicaid services. Blaszczak allegedly shared this information with hedge fund analysts Robert Olan and Theodore Huber so they could make investments relating to public companies with the understanding that this news would impact those companies’ stock prices.

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Developments in Securities Fraud Class Actions Against U.S. Life Sciences Companies

Posted by David Kistenbroker, Joni S. Jacobson and Angela M. Liu, Dechert LLP, on
Monday, March 20, 2023
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David Kistenbroker, Joni S. Jacobson and Angela M. Liu are Partners at Dechert LLP. This post is based on a Dechert memorandum by Mr. Kistenbroker, Ms. Jacobson, Ms. Liu, Christine Isaacs and Biaunca S. Morris.

In 2022, the total number of securities class action complaints filed remained below the more elevated levels we saw during 2017-2020, but life sciences companies were nonetheless still popular targets among these filings. [1] In this post, we analyze and discuss trends identified in filings and decisions from 2022 so that prudent life sciences companies can continue to take heed of the results.

Plaintiffs filed a total of 43 securities class action lawsuits against life sciences companies in 2022, which represented almost one in four securities class action lawsuits. Filings against life sciences companies in 2022 represented a 27.1% decrease from the previous year, and a 51.1% decrease from five years prior. Of these cases, the following trends emerged:

  • Consistent with historic trends, the majority of suits were filed in the Second, Third and Ninth Circuits, with a 54.5% decrease in suits filed in the Ninth Circuit – 22 in 2021 and 10 in 2022. The Third Circuit saw a 44.4% decrease in filings from the previous year – from nine in 2021 to five in 2022. For district courts within these circuits, the Southern District of New York had the most filings, with 10 overall
  • A few plaintiff law firms were associated with about three-fourths of the first filed complaints against life sciences companies: Pomerantz LLP (18 complaints), Glancy Prongay & Murray LLP (five complaints) and Bronstein, Gewirtz & Grossman, LLC and Kessler Topaz Meltzer & Check LLP (tied with four complaints each). [2]
  • Slightly more claims were filed in the first half of 2022 than in the second half, with 24 complaints filed in the first and second quarters, and 19 complaints filed in the third and fourth quarters.
  • About a quarter of the securities fraud cases brought against life sciences companies (11 cases) were filed against companies with COVID-19-related products and services.

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The Continual Dismantling of the Mandatory Disclosure Framework — The SEC’s Inaction

Posted by Marc I. Steinberg (Southern Methodist University) , on
Monday, March 20, 2023
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Marc I. Steinberg is the Rupert and Lillian Radford Chair in Law and Professor of Law at Southern Methodist University. This post is based on his recent piece.

In a recent speech, SEC Commissioner Caroline Crenshaw focused on the sparsity of  disclosure in Rule 506(b) offerings.  Pointing out that more funds are raised in private than registered offerings for over a decade, companies are electing to stay private than undertake the rigorous disclosure and regulatory mandates of public company status.  The result is the growing number of unicorns — privately-held companies (currently, approximately 1,200 such companies) with values exceeding $1 billion — with minimal disclosure required.  As Commissioner Crenshaw implicitly acknowledged, the current Commission thus far has done nothing to address this situation.  To her credit, Commissioner Crenshaw set forth a number of potential reforms, including a heightened disclosure regimen for such larger private issuers (resembling the Regulation A—Tier 2 disclosure requirements) and the reconstitution of the Form D to provide meaningful information. (Crenshaw, “Big Issues in the Small Business Safe Harbor: Remarks at the 50th Annual Securities Regulation Institute” (Jan. 30, 2023)).

As Commissioner Crenshaw acknowledged, the divide between the disclosure required in Securities Act registered offerings contrasted with private offerings is huge.   And, this divide becomes wider when the continuous Exchange Act disclosure mandates are triggered once an issuer elects to go public.   Securities Act registration statements and Exchange Act periodic reports call for a wide spectrum of information, with specificity and detail that critics assert result in information overload.  The SEC’s current focus on ESG disclosure likely will exacerbate this dilemma.

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ESG Litigation and Regulatory Enforcement Action

Posted by Carolyn Frantz, Alex Talarides, and Mike Delikat, Orrick Herrington & Sutcliffe LLP, on
Sunday, March 19, 2023
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Carolyn Frantz is a Senior Counsel, and Alex Talarides and Mike Delikat are Partners at Orrick Herrington & Sutcliffe LLP. This post is based on Orrick memorandum by Ms. Frantz, Mr. Talarides, Mr. Delikat, and James Stengal. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance (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; 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 Stakeholder Capitalism in the Time of COVID (discussed on the Forum here) by Lucian Bebchuk, Kobi Kastiel, and Roberto Tallarita.

In the early days, most company Environmental, Social, and Governance (ESG) programs were more akin to Corporate Social Responsibility, with companies publicly highlighting initiatives that benefit their communities. They called attention to things like employee volunteering, youth training and charitable contributions as well as internal programs like recycling and employee affinity groups. Companies did little to justify these limited investments, and the existence of initiatives that provided at least modest brand and employee relations value were not particularly controversial.

In recent years, however, these programs have become larger and more deeply integrated with companies’ core business strategies, including strategies for avoiding risks, such as those presented by gender and racial discrimination claims, the impacts of climate change, and cybersecurity and privacy gaps. Companies increasingly frame ESG programs as shareholder value creation efforts, in line with the views of institutional investors like BlackRock and the current Securities and Exchange Commission (SEC).

As ESG programs become larger and more integrated into a company’s business, so do the risks of attracting attention from regulators and private litigants. Below, we discuss some potential ESG-related regulatory and private litigation actions we expect to increase in coming years, and how to position your company to avoid them.

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Larry Fink’s Annual Letters to Investors

Posted by Martin Lipton, Wachtell Lipton Rosen & Katz, on
Saturday, March 18, 2023
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Martin Lipton is a founding partner of Wachtell, Lipton, Rosen & Katz, specializing in mergers and acquisitions and matters affecting corporate policy and strategy. This post is based on a Wachtell Lipton memorandum by Mr. Lipton, Adam O. Emmerich, Kevin S. Schwartz, Sabastian V. Niles, Carmen X. W. Lu, and Anna M. D’Ginto. Related research from the Program on Corporate Governance includes The Agency Problems of Institutional Investors (discussed on the Forum here) by Lucian Bebchuk, Alma Cohen, Scott Hirst; Index Funds and the Future of Corporate Governance: Theory, Evidence and Policy (discussed on the Forum here) and  The Specter of the Giant Three (discussed on the Forum here) both by Lucian Bebchuk and Scott Hirst; and The Limits of Portfolio Primacy (discussed on the Forum here) by Roberto Tallarita.

For more than ten years, Larry Fink, Chairman and CEO of BlackRock, the world’s largest asset manager, has published separate annual letters — one to CEOs and another to BlackRock’s shareholders. This year, Fink combined the two letters into one to underscore that in serving its clients, BlackRock has also created value for its shareholders — a demonstration of stakeholder capitalism at work.

As we recently explained, major asset managers such as BlackRock play a critical role in supporting companies as they seek to fulfill their fundamental purpose of pursuing long-term, sustainable value creation. Central to this mission is recognition that stakeholders (shareholders, employees, customers, suppliers, and communities) are critical to a company’s long-term success, and that boards and management should consider their interests when exercising their business judgment. This is the conception of corporate purpose articulated in The New Paradigm (issued by the World Economic Forum’s International Business Council in 2016), supported by the Business Roundtable beginning in 2019, and widely accepted by corporate leaders, investors, companies, and practitioners. Fink’s letter highlights the importance of this ongoing relationship and partnership between companies and asset managers as well as between companies and their other stakeholders in the context of the stakeholder governance model of corporate purpose.

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Larry Fink’s Annual Chairman’s Letter to Investors

Posted by Larry Fink, BlackRock, Inc., on
Friday, March 17, 2023
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Larry Fink is Founder, Chairman and CEO of BlackRock, Inc. This post is based on Mr. Fink’s annual letter to investors.

Music plays a big role in my life. As a kid growing up in California, I used to go to the local record shop, buy a piece of vinyl and listen to the album on my record player. I still listen to records, though less often than when I was young. Today, streaming allows me to listen with ease to the whole album of an artist, or just that artist’s greatest hits, or a playlist of my own compilations, or those of other listeners. We have so much choice at our fingertips.

Technology has also made financial markets much more affordable and accessible. Forty years ago, buying a stock or bond was a laborious process that required calling a stockbroker. The fees investors paid weren’t always clear. Now anyone with a smartphone and a brokerage account has tens of thousands of ETFs, mutual funds, and single stocks at their fingertips, and can make a purchase with a few clicks. Technology has greatly expanded the amount of choice for savers and investors. It can’t eliminate risks from investing (as we’ve seen all too vividly this past week), but technology has made financial markets more transparent, as well as easier and cheaper to access.

Making investing more accessible, affordable, and transparent to more people is core to our mission at BlackRock.

We are a fiduciary to our clients. The money we manage belongs to our clients who trust us to manage their investments to help them prepare for the future. Our fiduciary duty is to serve each and every client by seeking the best risk-adjusted returns within the investment guidelines they set for us. The powerful simplicity of our business model is that when we deliver value for our clients, we also create more value for our shareholders.

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Weekly Roundup: March 10-16, 2023

Posted by the Harvard Law School Forum on Corporate Governance, on
Friday, March 17, 2023

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This roundup contains a collection of the posts published on the Forum during the week of March 10-16, 2023.

Global Corporate Governance Trends for 2023

Posted by Richard Fields and Rusty O’Kelley, Russell Reynolds Associates, on Friday, March 10, 2023
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​ESG Battlegrounds: How the States Are Shaping the Regulatory Landscape in the U.S.

Posted by Leah Malone, Emily Holland, and Carolyn Houston, Simpson Thacher & Bartlett LLP, on Saturday, March 11, 2023
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SEC Enforcement: Year in Review

Posted by Harris Fischman and Jessica S. Carey, Paul, Weiss, Rifkind, Wharton & Garrison LLP, on Sunday, March 12, 2023
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Applying Economics – Not Gut Feel – To ESG

Posted by Alex Edmans (London Business School), on Monday, March 13, 2023
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What to Say When Launching a Strategic Review Process

Posted by Patrick Ryan, Edelman Smithfield, on Monday, March 13, 2023
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Russell 3000 Boards Becoming More Diverse

Posted by Subodh Mishra, Institutional Shareholder Services, Inc., on Tuesday, March 14, 2023
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On the Debate Regarding ESG, Stakeholder Governance, and Corporate Purpose

Posted by Martin Lipton, Wachtell Lipton Rosen & Katz, on Tuesday, March 14, 2023
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Financial Regulators, Black History and Epistemic Capital

Posted by Christopher Brummer (Georgetown University) , on Wednesday, March 15, 2023
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Governance of Sustainability in the Largest Global Banks

Posted by Stilpon Nestor, Morrow Sodali, on Wednesday, March 15, 2023
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Statement by Commissioner Peirce on Amendments to Regulation S-P

Posted by Hester M. Peirce, U.S. Securities and Exchange Commission, on Thursday, March 16, 2023
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Statement by Chair Gensler on Amendments to Regulation S-P

Posted by Gary Gensler, U.S. Securities and Exchange Commission, on Thursday, March 16, 2023
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Statement by Chair Gensler on Amendments to Regulation S-P

Posted by Gary Gensler, U.S. Securities and Exchange Commission, on
Thursday, March 16, 2023
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Gary Gensler is Chair of the U.S. Securities and Exchange Commission. This post is based on his recent public statement. The views expressed in this post are those of Chair Gensler, and do not necessarily reflect those of the Securities and Exchange Commission or the Staff.

Today, the Commission is considering amendments to require covered firms to notify their customers of data breaches. [1] I support these amendments because, through making critical updates to a rule first adopted in 2000, this proposal would help protect the privacy of customers’ financial data.

In 1999, Congress passed a provision to help ensure that financial firms protect their customers’ financial data. As a member of the Treasury Department team at the time, I was proud to work with then-Congressman Ed Markey on this important legislation. The provision mandated that six federal agencies adopt rules to advance consumers’ privacy. The SEC did so through Regulation S-P, which requires covered firms to notify customers about how they use their financial information.

When this provision first passed Congress, the hit 1998 romantic comedy “You’ve Got Mail” still was in theaters, in which Meg Ryan and Tom Hanks fell for one another while exchanging emails over, you guessed it, AOL. As my daughters would remind me, that is part of ancient history. They might suggest I sign up for a service like BeReal.

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Statement by Commissioner Peirce on Amendments to Regulation S-P

Posted by Hester M. Peirce, U.S. Securities and Exchange Commission, on
Thursday, March 16, 2023
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Hester M. Peirce is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent public statement. The views expressed in this post are those of Commissioner Peirce and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Thank you, Chair Gensler. The Commission routinely explains the need for new disclosure mandates by insisting that investors really want the information. In this case, I agree. Investors want to know if their personal information has been compromised and want it to be protected, and thus I support this proposal. However, my support is far from unreserved, and my willingness to vote for a final rule will depend largely on our response to problems identified by commenters.

Before I address this rule specifically, let me make one comment that applies to all the rules before us today. The proposed expansion of Regulation SP is one of three cybersecurity and systems-protection proposals we are considering today. Regulation SP overlaps and intersects with each of the others, as well as with other existing and proposed regulations – e.g., the cybersecurity rule for investment advisers, investment companies, and business development companies, and the recently proposed investment adviser outsourcing rule. The release does not try to hide these facts, and actually goes into considerable detail about the redundancies, but then it simply declares them appropriate given the different purposes, that they are “largely consistent,” and probably not “unreasonably costly.” Admittedly, rationalizing these overlapping requirements would be hard. To paraphrase John Kennedy when addressing another difficult challenge, the Commission should choose to harmonize and synthesize these rules not because it is easy, but because it is hard, because the goal will serve to organize and measure the best of our energies and skills, because the challenge is one that we are willing to accept, one we are unwilling to postpone. [1]

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Governance of Sustainability in the Largest Global Banks

Posted by Stilpon Nestor, Morrow Sodali, on
Wednesday, March 15, 2023
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Stilpon Nestor is a Senior Advisor at Morrow Sodali. This post is based on Morrow Sodali memorandum by Mr. Nesto, Catalina Fuentes Benitez, Jacob Nolan and Darya Vinogradov-Wouters. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance (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; 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 Stakeholder Capitalism in the Time of COVID (discussed on the Forum here) by Lucian Bebchuk, Kobi Kastiel, and Roberto Tallarita.

Introduction

Banks are at the heart of every major national economy — and of the global economy as a whole. By intermediating between savers and companies, they are a prime allocator of capital across all economic sectors. In the process, they make decisions of systemic importance regarding the kind of growth that is supported by the capital they allocate. Their role in promoting sustainability across most sectors of the economy, from the most polluting and socially sensitive to the “green” sectors, is therefore systemic.

Below are the main findings of the Report prepared with my colleagues Catalina Fuentes Benitez, Jacob Nolan and Darya Vinogradov- Wouters which examines the sustainability governance practices of the 30 largest European and North American banks. In preparing the Report, we reviewed publicly available documentation and websites published as of 31 August 2022. We also interviewed representatives from fifteen leading banks – twelve of which were part of this study and eight of which were globally systemic banks (“G-SIBs”). The fifteen banks comprised ten from Europe and five from North America.

We also benchmarked the Report’s universe to what we considered the best proxies for the two aspects of “success” relevant to a financial institution: financial soundness and sustainability performance. To this effect, we used two synthetic indexes: one measuring financial performance and one sustainability. Throughout the Report, we use insights from this taxonomy and the resulting categorization of peers. In our benchmarking exercises, we distributed the peer group along three tiers in the two areas covered by our synthetic indexes: financial performance and sustainability performance. We found that there were five banks among the 30 that were included in Tier 1 of both indexes – we call these banks “over-performers”; conversely, there were five banks that were included in Tier 3 of both indexes, which we call the “under-performers”.

We are aware that the small peer universe makes this a less-than-robust comparison from a strictly statistical point of view. Nevertheless, we believe that the data does provide valuable insights into best or current practices in the two regions that we cover.

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