Yearly Archives: 2023

The Complex Materiality of ESG Ratings: Evidence from Actively Managed ESG Funds

Martijn Cremers is Bernard J. Hank Professor of Finance at University of Notre Dame Mendoza College of Business; Timothy B. Riley is Assistant Professor in the Department of Finance at the University of Arkansas; and Rafael Zambrana is Assistant Professor of finance at the University of Notre Dame. This post is based on their recent paper. 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; How 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, and Roberto Tallarita; Companies Should Maximize Shareholder Welfare Not Market Value (discussed on the Forum here) by Oliver D. Hart and Luigi Zingales; and Exit vs. Voice (discussed on the Forum here) by Eleonora Broccardo, Oliver Hart, and Luigi Zingales. 

ESG (Environmental, Social, and Governance) investing—alternatively, socially responsible investing or sustainable investing—is growing rapidly in popularity. In the fourth quarter of 2019, the assets of ESG-based mutual funds stood globally at nearly $1 trillion. Just two years later, in the fourth quarter of 2021, those assets stood at nearly $3 trillion. That growth has created controversy: In the states of Florida and Texas, limits have been put forth on ESG investing, with the Florida resolution stating that the state would invest “without consideration for nonpecuniary beliefs.”

This controversy raises a natural question: is ESG investing only about aligning investments with nonpecuniary beliefs or is ESG investing spotlighting oft ignored, but financially material, information?

The existing research on ESG with respect to mutual funds has primarily focused on whether funds incorporate ESG considerations into their investment process and, if they do, whether investing in stocks with high or low ESG ratings impacts their performance (i.e., whether ESG ratings themselves are financially material). The primary contribution of our work is to investigate more broadly—focusing on the materiality of the information underlying ESG ratings. We do so by measuring the extent to which fund managers incorporate ESG information into their portfolio decisions.

We measure the extent of ESG information incorporation through a novel metric we label ‘Active ESG Share.’ Importantly, a fund can be active with respect to ESG information by investing more in stocks with higher ESG ratings or by investing more in stocks with lower ESG ratings. Therefore, a fund manager with a high Active ESG Share—that is, one aggressively using ESG information—could have a portfolio of stocks that tend to have high or low ESG ratings.

Our hypothesis is not that high Active ESG Share is unconditionally beneficial. Rather, we contend that the material component of ESG information is complex, such that processing it effectively should require specialization. Accordingly, we expect that the impact on fund performance of Active ESG Share will be concentrated among ESG funds, who presumably have managers specialized in processing ESG information. In addition, ESG rating providers often disagree on their ratings. We expect the impact of Active ESG Share on performance to be stronger among funds that tend to hold stocks with greater rating disagreement, since those stocks offer greater opportunity to identify and utilize material information.

We measure Active ESG Share over the period 2004 through 2021 for a large sample of actively managed U.S. equity mutual funds. We classify a fund as ESG focused if Morningstar identifies it as such or if a fund has certain key terms in its name (e.g., ‘climate’ or ‘social’). Our sample of actively managed funds contains 243 ESG funds and 1,875 non-ESG funds. Consistent with the growth we discussed earlier, the proportion of ESG funds in our sample increases over time, from 10% of funds and 15% of assets in 2004 to 18% of funds and 20% of assets in 2021.

Our empirical evidence within this sample is consistent with our expectations. On average, Active ESG Share does not have a significant relation with future fund performance. Higher Active ESG Share does, however, predict better future performance among ESG funds. A one standard deviation increase in Active ESG Share for ESG funds predicts a performance increase of about 0.57% per year. Furthermore, that impact is concentrated among those ESG funds that tend to buy stocks with a high level of ratings disagreement. If the Active ESG Share of an ESG fund with that tendency increases by one standard deviation, our model predicts performance will improve, on average, by about 0.87% per year.

A feature of ESG investing that adds to its complexity is its aggregation of disparate components. How a firm approaches their carbon emissions (environmental) and whether a firm staggers its board (governance) have little relation, but those decisions both fall under the heading of ESG investing. We further detail the relation between Active ESG Share and performance by disaggregating E, S, and G. We find that, among ESG funds, the environmental component is the most impactful. A one standard deviation increase in Active E Share predicts a performance improvement of about 0.65% per year, while analogous increases for Active S Share and Active G Share predict performance improvements of 0.37% and 0.32% per year, respectively.

Our results with respect to the average ESG ratings of the stocks held by these funds are also consistent with the idea that ESG information is complex. For non-ESG funds, there is no relation between average ESG rating and future fund performance. For ESG funds, a one standard deviation increase in average rating predicts that performance will decrease by about 0.55% per year. From a financial perspective, ESG ratings themselves appear to not provide useful information, but rather serve as a means of coordinating the trading of ESG funds, leading to stock overpricing and fund underperformance.

In conclusion, our results from studying actively managed mutual funds support the hypothesis that ESG information is financially material, but complex. Specialized fund managers can incorporate such information into their investment process to the benefit of their investors, especially when investing in stocks with a high level of disagreement in ESG ratings. Thus, regardless of an investor’s nonpecuniary beliefs, ESG information should not be ignored.

Vanguard-Advised Funds’ Perspective on Contested Elections

John Galloway is Global Head of Investment Stewardship at Vanguard, Inc. This post is based on a publication by Vanguard Investment Stewardship.

Executive summary

  • New rules requiring the use of a universal proxy card in contested director elections at U.S. public companies are expected to alter the dynamics under which contested director elections are conducted.
  • Vanguard’s internally managed funds’ approach to evaluating contested director elections remains the same with the adoption of a universal proxy card.[1] In contested director elections, the funds assess the strategic case for change, evaluate the company’s approach to governance, and review the skills and qualifications of both the management and dissident director nominees.
  • We believe that companies should continue to proactively engage with shareholders, making independent directors available for such conversations; provide adequate disclosure of board composition that explains how the board’s collective and individual talents and skills align with the current and future needs of the company; and communicate steps the board is taking to measure and enhance its effectiveness, including how it conducts board assessments and ongoing director education and training.

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Trust, Transparency, and Complexity

Richard T. Thakor is Assistant Professor of Finance at the University of Minnesota Carlson School of Management, and Robert Merton is Professor of Finance at the MIT Sloan School of Management. This post is based on their recent paper, forthcoming in The Review of Financial Studies. 

In recent years, there has been increasing complexity in both physical and financial products, due to higher demand for customization and financial innovation. Customers—who may have trouble understanding all relevant product attributes—have to trust the producers in order to buy their products, and investors have to trust these producers in order to invest in them. This has elevated the role of trust in enabling the adoption of these products. The importance of trust has led to significant discussion about how it is built, and transparency (disclosure) is viewed as a common tool for building trust (e.g. Offermann and Rosh (2012)). This has first-order policy relevance, as laws and policies are frequently proposed and put into place to mandate disclosure and verification.

Despite this common view that transparency can help build trust in product sellers, thereby helping buyers cope with complexity, the empirical evidence on the issue is mixed—there is little direct causal evidence on the relationship between transparency and trust in the cross-section. Indeed, anecdotal evidence suggests that greater transparency need not be associated with greater trust: some of the most trusted institutions often disclose less information than their less-trusted counterparts.

In our paper, “Trust, Transparency, and Complexity” (forthcoming in The Review of Financial Studies), we examine the interaction between trust, transparency, and verification theoretically in a model of endogenous product complexity and transparency. In contrast to the common view, we show that transparency does not build trust per se—in the sense that becoming more transparent does not directly lead to the firm becoming more trusted—but rather it substitutes for trust in that if a product is fully transparent to its user, there is no need for trust. There are however limits to the degree of complexity a product can have in order for it to be transparent.

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Change management for the legal function

Lori Lorenzo, and Bob Taylor are Managing Directors, and Lee Merovitz is a Leader at Deloitte LLP. This post is based on a Deloitte memorandum by Ms. Lorenzo, Mr. Taylor, Mr. Merovitz, and Erin Hess.

It’s not unusual for organizations to struggle with organizational change. In-house legal departments are no exception.

In the past year, more than 43% of chief legal officers (CLOs) indicated that transformation is a top priority within their legal function, with a focus on technology (86%) and strategy (14%).[1] Many of these CLOs may be heading up their organization’s transformation efforts beyond the legal department: According to a recent Deloitte survey, legal executives lead a third or more of enterprise-wide digital, workforce, and cybersecurity transformation initiatives. Meanwhile, 82% expect their workload to increase from the previous 12 months. All told, these conditions may be prompting CLOs to consider more efficient and effective ways to drive transformation in their organizations.[2]

We recently asked legal executives about possible challenges they’re facing with transformation. The most common concerns they raise are the inability to generate value from technology solutions (65%) and the difficulty of demonstrating return on investment (ROI) for new technology (63%). But most also cite a range of other challenges, from obtaining enough funding to remote work and lack of expertise (figure 1).[3]

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Who Are Quality Shareholders and Why You Should Care

Lawrence A. Cunningham is Special Counsel at Mayer Brown LLP, Principal of the Quality Shareholders Group and Henry St. George Tucker III Professor Emeritus at George Washington University. The following post is based on Professor Cunningham’s address delivered as the 37th Annual Francis G. Pileggi Distinguished Lecture in Law at Delaware Law School on February 10, 2023. This post is part of the Delaware law series; links to other posts in the series are available here.

The stated purpose of the Pileggi Lecture is to create an opportunity for those “distinguished” in corporate law and governance to address those “most responsible for shaping it:” the Delaware bench and bar. The message I’d like to share is: you are doing an excellent job, and please keep it up. A few takeaways upfront:

  • I concur with the widely held view that Delaware’s corporate law is a national treasure
  • evidence shows that Delaware’s “made-to-measure” approach to corporate governance is supported by America’s most patient and focused investors—called “quality shareholders”
  • there’s reason for great skepticism about the trend toward “one-size-fits-all” governance favored by America’s indexing investor community and to resist efforts by certain shareholders to rule corporate boardrooms.

In this lecture, after summarizing the “Delaware way,” I present my research on shareholder typologies, then canvas core topics in corporate governance today along with current debates about corporate purpose. The review shows not only the soundness of the Delaware approach but Delaware’s critical role in maintaining the boundaries to protect it.

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Director Perspective: Top Priorities of 2023

Ted Sikora is a Project Manager, Surveys and Business Analytics at NACD. This post is based on his NACD publication.

If 2020 was the year of the COVID-19 pandemic and 2021 was the year of building toward recovery, 2022 offered little respite for directors overseeing companies amid a chaotic business environment. To gain insight into the key trends that will impact boards in 2023 and how directors plan to adapt, the National Association of Corporate Directors has once again conducted its annual Board Trends and Priorities Survey. This year’s survey report includes insights from more than 300 directors, which detail what directors expect in the coming year, as well as the key improvement areas that they deem important. [1]

TOP TRENDS

Directors were asked to select the top five trends that they believe will have the greatest effect on their company over the next year. It’s no surprise that inflation and the threat of an economic recession are top of mind. After several months of record-breaking inflation, the threat of a recession looms over the business landscape with 64 percent of respondents selecting it as ranking among their top concerns. As inflation persists despite a series of interest-rate hikes initiated by the Federal Reserve, pessimism has increased toward the prospects of the US economy. (See Figure 1.) In fact, only 29 percent of respondents believe that the United States’ economy is heading for a “soft landing,” that is, stemming inflation while avoiding a recession by mid-2023. Meanwhile, 65 percent anticipate a recession, and 6 percent anticipate a severe recession. (See Figure 2.)

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Weekly Roundup: February 3-9, 2023


More from:

This roundup contains a collection of the posts published on the Forum during the week of February 3-9, 2023


Global Corporate Credit ESG Engagement Report



Does Greater Public Scrutiny Hurt a Firm’s Performance?


ESG in 2023: Politics and Polemics


Corporate Officers, Not Just Directors, Can Be Liable for Duty of Oversight Violations



Boardwalk Pipeline v. Bandera


​Mergers and Acquisitions—2023


Factors That Will Impact Proxy Season 2023


Outlook for Activism in 2023


Outlook for Activism in 2023

James E. Langston and Kyle A. Harris are Partners and Claire Schupmann is an Associate at Cleary Gottlieb Steen & Hamilton LLP. This post is based on their Cleary memorandum. Related research from the Program on Corporate Governance includes The Long-Term Effects of Hedge Fund Activism (discussed on the Forum here) by Lucian Bebchuk, Alon Brav, and Wei Jiang; Dancing with Activists (discussed on the Forum here) by Lucian Bebchuk, Alon Brav, Wei Jiang, and Thomas Keusch; and Who Bleeds When the Wolves Bite? A Flesh-and-Blood Perspective on Hedge Fund Activism and Our Strange Corporate Governance System (discussed on the Forum here) by Leo E. Strine, Jr.

Shareholder activism continued to rise in 2022, and is poised to bubble over in 2023. As we turn the page on 2022, the overall macroeconomic and geopolitical picture portends continued market volatility and recessionary-like conditions, and activists of all stripes will look to capitalize on valuation re-sets and broader disruption to push their agendas at companies at home and abroad.  While we expect many of the activism trends from recent years to continue, that does not mean activism in 2023 will necessarily reflect business as usual. A number of recent developments will likely cause meaningful shifts to the activism landscape and playbook, which companies should be prepared to navigate. Some of these key developments and likely forces of change in 2023 are discussed below.

More New Faces

Continuing a multi-year trend, 2022 saw a broad range of new entrants to the activism field, bringing with them new aims, strategies and tactics. While the most prominent activists (Elliott, Icahn and the like) are as active as ever, there has been a notable rise in the number of campaigns initiated by first-time activists. Many of these actors are fusing the types of strategic and financial goals traditionally espoused by activists with ESG and corporate governance aims. Some have also demonstrated more aggressiveness and unpredictability as they seek to establish a track record and garner notoriety they can leverage into greater fundraising success. Companies should continue to be aware of the expanding roster of activists and their tactics as they refresh their activism defense playbook in the new year.

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Factors That Will Impact Proxy Season 2023

Dorothy Flynn is President of Corporate Issuer Solutions and Chuck Callan is Senior Vice President of Regulatory Affairs at Broadridge Financial Solutions. This post is based on their NACD publication.

Choppy market valuations, more engaged shareholders, and new regulations will create new challenges for corporate governance in the upcoming proxy season. Companies and boards should anticipate pressure from stakeholders regarding director elections and say on pay, high numbers of shareholder proposals on environmental and social matters, and added disclosure in proxy statements.

Broadridge’s analysis shows that in 2022 the most directors over the past five years failed to attain majority support, there was a decline in shareholder support for say on pay, and there were more shareholder proposals than at any time over the preceding five years. Directors and management should expect the following factors to weigh on the upcoming 2023 proxy season:

1. Investment Democratization: An influx of new investors is expanding the shareholder base, and they are communicating among themselves. Many of them will be engaged on proxy matters. Others will come off the sidelines because new technologies are making it easier for their voices to be heard.

2. Advancing Environmental, Social, and Governance (ESG) Issues: Investors are demanding more information and action, and many companies are proactively providing it, not just in proxy statements but throughout the year.

3. Changes in Say on Pay and Clawbacks: “Pay vs. Performance” rules as well as pending stock exchange rules on clawbacks are adding to the disclosures that companies and boards need to make on executive compensation. These rules provide another opportunity to demonstrate alignment between management and shareholders.

4. Uncertainty about Board Leadership: Market downturns can presage a decline in shareholder support, and new US Securities and Exchange (SEC) rules for universal proxy make it easier for some activists to add their nominees to company ballots.

5. Pass-Through Voting: Some of the largest fund companies are passing votes to their underlying investors while others are taking retail shareholder “sentiment” into account in voting decisions. Nevertheless, guidelines from proxy advisers will continue to sway large numbers of votes.

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​Mergers and Acquisitions—2023

Victor Goldfeld and Mark Stagliano are Partners and Anna D’Ginto is an Associate at Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell memorandum by Mr. Goldfeld, Mr. Stagliano, Ms. D’Ginto, Adam O. Emmerich, Andrew J. Nussbaum, and Igor Kirman. Related research from the Program on Corporate Governance includes Are M&A Contract Clauses Value Relevant to Target and Bidder 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.

2022 was a tale of two halves for M&A. The beginning of the year was active, as robust dealmaking carried over from the record-breaking levels of 2021 to drive approximately $2.2 trillion worth of global deals through the first half of the year, compared to approximately $2.7 trillion worth of such deals announced over the same time period in the previous year. M&A activity slowed considerably after the first half of 2022, however, as significant dislocation in financing markets, an increasingly volatile stock market, declining share prices, concerns over inflation, rapidly increasing interest rates, war in Europe, supply chain disruption and the possibility of a global recession undermined business and consumer confidence and created hesitancy to agree to major transactions. The year ended with total deal volume of $3.6 trillion globally, down from $5.7 trillion in 2021 but in line with the $3.5 trillion of volume in 2020 as well as with the five-year average (excluding 2021), and in a sense was the inverse of 2020, which saw a precipitous decline in M&A activity in the first half at the outset of the Covid-19 pandemic, followed by a surge in the second half driven by massive liquidity and low interest rates. Transactions involving U.S. targets and acquirors continued to represent a substantial percentage of overall deal volume, with U.S. M&A totaling over $1.5 trillion (approximately 43% of global M&A volume) for the year, as compared to approximately $2.5 trillion (roughly 43% of global M&A volume) in 2021.

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