Yearly Archives: 2024

Environmental Performance Metrics in Incentive Plans: Incentive Trends and Key Design Considerations

Tara Tays is a Partner, Phil Johnson is a Senior Consultant at Pay Governance, and Ashley Gamarra is Head of Marketing at SustainaBase. This post is based on their Pay Governance memorandum.

Introduction

In recent years, global companies have grappled with defining a baseline for environmental metrics, establishing the processes and controls to measure and report progress toward objectives, and setting the goals of ambitious environmental performance metrics (especially if environmental performance metrics are used in executive incentive arrangements). Institutional investors have also been increasingly seeking ways to ensure that the companies in which they invest are actively working towards a sustainable future. In response to these investors pushing for progress on sustainability (among other priorities), the majority of S&P 500 companies have released sustainability reports, and boards of directors, compensation committees, and management teams have been discussing whether a portion of executives’ incentive compensation programs should be tied to corporate sustainability priorities.

From setting greenhouse gas (GHG) emissions reduction targets to promoting circular economy practices (which involve minimizing waste and maximizing the reuse and recycling of resources), some compensation committees have considered if there are specific and actionable performance metrics that should be included in executive incentive plans. Whether environmental incentive metrics will support meaningful sustainability progress depends on how the metrics are created, measured, and evaluated.

In this article, we explore the role “E” in Environmental, Social, and Governance (ESG) priorities has played in executive incentive arrangements, as well as design considerations for including an “E” metric in executive incentive plans.

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Timing Sustainable Engagement in Real Asset Investments

Bram van der Kroft is a Postdoc Fellow at MIT. This post is based on a working paper by Dr. van der Kroft, Professor Juan Palacios, Professor Roberto Rigobon and Professor Siqi Zheng.

Filling and voting on shareholder proposals has been a critical corporate governance mechanism, enabling investors to mitigate classical principal-agent problems. In the past, most shareholder proposals concerned corporate governance issues such as CEO remuneration, takeover prevention, board structure, and voting rights. In recent years, sustainable investors have started leveraging their shareholder rights and filing proposals to improve firms’ environmental or social performance. Such sustainable engagements are increasingly prominent as investors file hundreds of proposals annually with potentially significant consequences. A recent NBER working paper titled “Timing Sustainable Engagement in Real Asset Investments” analyzes a core factor influencing the effectiveness of sustainable engagement: The depreciation levels of real assets of the firm.

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NYC Pension Plan Suit is Thrown Out, GOP Anti-ESG Fiduciary Duty Theory Remains to be Tested

Amy D. Roy, Joshua A. Lichtenstein, and Robert A. Skinner are Partners at Ropes & Gray LLP. This post is based on their Ropes & Gray memorandum. 

For over two years, certain Republican officials at the state and federal levels have claimed that asset managers and pension officials breach their fiduciary duties by considering environmental, social and governance (ESG) factors in investing.  This legal theory has been cited repeatedly in letters from legislators, state attorney general opinions, and investigative demands, but was teed up to be tested in court for the first time in a privately-funded suit filed against three New York City pension plans.

Sponsored by a conservative anti-union organization, Americans for Fair Treatment (“AFFT”), the case filed in New York State court last year challenged the decision by the trustees of the NYC pension plans to divest from most of their fossil fuel holdings.  Lead counsel for the plaintiffs is the Trump administration’s former Secretary of Labor, Eugene Scalia, who expressed opposition to ESG investing principles while in office and who headed the agency when it created a rule limiting the use of ESG in the management of private pensions governed by ERISA.  The Trump-era rule was later replaced by a new rule from the Biden DOL.

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Driving Audit Quality Forward: Where We’ve Been and Where We’re Heading

Kathleen Hamm is a Former Board Member at Public Company Accounting Oversight Board. This post is based on her speech.

I.  Introduction

Good afternoon, everyone. Thank you, Alan [Wilson, WilmerHale Partner], for your kind introduction. And thank you to the Center for Audit Quality (CAQ) and WilmerHale for inviting me to speak here today. I’m honored to be part of this series of discussions focused on recent developments in accounting, auditing, and the law.

As a self-confessed capital markets enthusiast, accounting, auditing and the law are three of my favorite subjects. That’s why I am delighted each month when I receive Dan’s [Goelzer, former PCAOB Board Member and Baker & McKenzie partner] Audit Committee and Auditor Oversight Update in my inbox.

Today’s session focuses on recent trends at the Public Company Accounting Oversight Board (PCAOB). You will hear shortly from a panel of experts on enforcement and inspection trends, as well as standard-setting efforts at the PCAOB. There is much activity underway in each area.

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How Companies React to Say on Pay Failures

Lucia Song is a Research Analyst at Equilar, Inc. This post is based on her Equilar memorandum.

Say on Pay continues to exert significant influence on corporate governance, compelling companies to reassess and adjust their executive compensation practices in response to shareholder feedback. Analyzing 77 companies within the Russell 3000 facing failed Say on Pay votes, this Equilar study aims to dissect the myriad of changes implemented by these companies post-failure and discern emerging trends in executive compensation governance. The study examines 2023 proxies following a failed Say on Pay vote, and analyzes common changes these companies made and the results in the next fiscal year following changes. A key finding is that implementing changes as post-failure mitigation can, in most cases, lead to positive effects on shareholder voting in the following year, but there are still circumstances where changes might not be effective.

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AI: Are Boards Paying Attention?

Avi Gesser, Bill Regner and Paul Rodel are Partners at Debevoise & Plimpton LLP. This post is based on a Debevoise memorandum by Mr. Gesser, Mr. Regner, Mr. Rodel, Steve Slutzky, Joshua Samit and Amy Pereira.

In the wake of a number of shareholder proposals, as well as first-of-their-kind enforcement actions and public statements by the U.S. Securities and Exchange Commission, many companies are considering how their use of artificial intelligence and the associated risks should be overseen and managed by the board.

A recent report by proxy advisor Institutional Shareholder Services analyzed S&P 500 company proxy statements filed between September 2022 through September 2023. ISS found that over 15% of companies filing those proxy statements disclosed board oversight of AI, including 38% of companies in the Information Technology sector and 18% of companies in the Health Care sector. Less than 13% of S&P 500 companies had at least one director considered by ISS as having AI expertise, based on, among other things, employment experience related to AI and formal AI certifications. Information Technology companies again led the way with over 30% having at least one director with AI expertise. The study also found that AI is rarely the sole focus of a newly created committee. Most companies instead delegate oversight of AI to an existing committee, such as the audit committee or committees responsible for technology, corporate responsibility or risk management.

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Supreme Court’s Overruling of Chevron Will Invite More Challenges to Agency Decisions

Shay Dvoretzky, Parker Rider-Longmaid, and Boris Bershteyn are Partners at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on a Skadden memorandum by Mr. Dvoretzky, Mr. Rider-Longmaid, Mr. Bershteyn, Emily J. Kennedy and Steven Marcus.

In the consolidated cases Loper Bright Enterprises v. Raimondo, Secretary of Commerce and Relentless, Inc. v. Department of Commerce, the U.S. Supreme Court overruled Chevron v. NRDC, the 1984 case that established the bedrock Chevron doctrine.

The underlying cases themselves addressed a narrow question of fishery management law: Whether the National Marine Fisheries Service’s (NMFS) requirement that certain vessels pay for federal observers onboard their boats was consistent with the Magnuson-Stevens Act. But embedded in that focused question was a bigger methodological issue: Whether a court adjudicating that administrative law dispute could use the Chevron doctrine, which requires some deference to NMFS’s interpretation, or whether the court should decide the question on its own. The D.C. Circuit and the First Circuit both relied on Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984) and deferred to NMFS’s interpretation of the Magnuson-Stevens Act.

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Supreme Court rules SEC use of in-house tribunals is unconstitutional

Joel M. Cohen, Tami Stark and Ladan Stewart are Partners at White & Case LLP. This post is based on a White & Case memorandum by Mr. Cohen, Ms. Stark, Ms. Stewart, Marietou Diouf and Robert DeNault.

On June 27, 2024, the Supreme Court ruled in SEC v. Jarkesy that when the Securities and Exchange Commission (SEC) seeks civil penalties from defendants for securities fraud, the Seventh Amendment requires it to bring the action in a court of law where the defendant is entitled to a trial by jury.  The 6-3 decision ends the SEC’s long-running use of in-house tribunals led by Administrative Law Judges (ALJs) to adjudicate fraud actions. The decision is the latest in the growing trend by courts to curtail the reach of the administrative state, and is likely to have impacts far beyond the SEC.

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AI Washing Enforcement Continues, Highlighting Risks to Companies and Investors

David Rhinesmith, Brad Marcus, and Sarah Schaedler are Partners at Orrick, Herrington & Sutcliffe LLP. This post is based on Orrick memorandum by Mr. Rhinesmith, Mr. Marcus, Ms. Schaedler, and Jackson Hagen.

Last month, the U.S. Securities and Exchange Commission (“SEC”) expanded its “war” on AI fraud to include private market participants, filing securities fraud charges against Ilit Raz, founder and former CEO of defunct AI recruitment startup Joonko. That same day, the DOJ unsealed an indictment against Raz detailing parallel criminal charges of securities fraud and wire fraud stemming from the same alleged scheme.

This is the latest salvo by the SEC in its response to allegedly fraudulent AI disclosures. SEC Chair Gary Gensler has been outspoken regarding the Commission’s intent to combat AI washing – falsely claiming the use of AI or machine learning models or misrepresenting their application. But until the charges against Raz, the SEC’s actions and rhetoric to fight AI washing had been limited to investment advisers, broker dealers, or companies raising money from the public.

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Weekly Roundup: July 12-18, 2024


More from:

This roundup contains a collection of the posts published on the Forum during the week of July 12-18, 2024

The Supreme Court’s Business Docket: October Term 2023 in Review


The SEC’s Approach to Cybersecurity Disclosure Decisions


The director’s guide to shareholder activism


DEI: How to lead without going offside


Private Equity and Net Asset Value Debt – Ripping-Up the Rules of Private Equity


What Settlement Data Says About the Evolution of Activism


Fifth Circuit Vacates SEC’s Rescission of Notice-and-Awareness Requirements for Proxy Advisors


100 Years of Rising Corporate Concentration


2024 Say on Pay + Proxy Vote Results


SCOTUS to Clarify Securities Fraud Pleading Requirements for Falsity and Scienter


The origins of modern corporate governance: New findings


Q1 2024 Gender Diversity Index


After Chevron: What the Supreme Court’s Loper Bright Decision Changed, And What It Didn’t


Partisan Politics and Annual Shareholder Meeting Formats


Shielding the C-Suite


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