Yearly Archives: 2024

Disney’s Victory in 2024 Proxy Contest: Lessons for Boards and Practitioners

Martha McGarry, Andrew Noreuil, and Camila Panama are Partners at Mayer Brown LLP. This post is based on a Mayer Brown memorandum by Ms. McGarry, Mr. Noreuli, Ms. Panama, and Alexander Dussault.

On April 3, 2024, The Walt Disney Company (“Disney”) successfully won a proxy contest launched by Nelson Peltz’s Trian Fund Management LP (“Trian”) and Blackwells Onshore I LLC and affiliates (“Blackwells”) at its 2024 Annual Shareholders Meeting. The outcome of this high-profile contest offers several insights for boards and practitioners on how to prepare for and respond to activist challenges in today’s corporate governance landscape. In this article, we highlight some of the key takeaways from Disney’s 2024 Annual Meeting.

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What the Supreme Court’s Loper Bright Decision Means for ESG, and Other Key Trends

Leah Malone is a Partner and Leader of ESG and Sustainability Practice and Emily Holland is a Counsel at Simpson Thacher & Bartlett LLP. This post is based on a Simpson memorandum by Ms. Malone, Ms. Holland, Martin Bell, Stephen Blake and Linton Mann.

For companies, navigating the ESG landscape means balancing various stakeholder demands, keeping abreast of rapidly-changing new laws and regulations, and calibrating contradictory litigation risks. Last week, this already-difficult landscape was complicated further by the Supreme Court’s June 28 decision in Loper Bright Enterprises v. Raimondo, [1] overturning the Court’s long-held approach to regulatory deference embodied in the 40-year old Chevron doctrine. The Loper Bright decision could have significant impacts on the future of environmental and ESG regulation, creating new hurdles for agency rulemaking around these emerging issues, and calling into question current administrative actions.

Loper Bright follows a variety of other key decisions and developments that are shaping ESG-related litigation trends. These include:

  • A circuit court decision dealing a new setback to DEI efforts in Fearless Fund;
  • A state court decision exposing potential cracks in U.S. states’ anti-ESG efforts in Keenan v. Russ;
  • Decisions in Montana and Switzerland establishing the right to a healthy environment; and
  • A variety of developments in greenwashing class action litigation claims.

This alert examines these cases, the fault lines they reflect, and how they may impact companies’ strategic considerations as to sustainability and resilience issues affecting their businesses.

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The Board’s Role in AI and Sustainability

Kurt Harrison is Co-Head of the Global Sustainability Practice, Laura Mantoura is Board Member and CEO Advisory Practice, and Emily Meneer is Leader of Sustainability Knowledge team at Russell Reynolds Associates. This post is based on their Russell Reynolds memorandum.

Artificial intelligence has emerged as a pressing issue for boards that demands new approaches to governance to ensure that companies are seizing opportunities for value creation, while minimizing enterprise risk. AI technologies possess the potential to revolutionize industries, disrupt traditional business models, and profoundly alter long-term strategies for growth.

As boards navigate the complexities of AI adoption, they are confronted with myriad challenges, including ethical considerations, legal implications, data privacy concerns and the need for transparent decision-making processes. However, Russell Reynolds Associates’ latest Global Leadership Monitor shows that boards are not prepared to address these challenges – only 30% of board directors believe their organization has the right expertise on the board to advise on generative AI implementation. And management teams feel even less confident, with only 20% of leaders agreeing that their board has the right expertise in place.

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Moelis, § 122(18), and Remedies in Contractual Breaches Prompted by Fiduciary Duty

Jim An is a Teaching Fellow and Lecturer in Law at Stanford Law School.

Last week, the Delaware General Assembly passed S.B. 313, overturning West Palm Beach Firefighters’ Pension Fund v. Moelis. Upon Governor Carney’s signature, S.B. 313 will amend the DGCL by adding § 122(18) and enable corporations to enter so-called shareholder agreements, colloquially called side letters, even to the extent that such agreements grant counterparties contractual rights that intrude on the board’s duty to manage the corporation under DGCL § 141(a).

In the debate over § 122(18), its drafters and proponents sought to assuage concerns that § 122(18) may reduce shareholder protections by effectively overriding a board’s fiduciary obligations. Section 122(18)’s proponents repeatedly asserted that the Moelis-style agreements it enables have “no effect whatsoever on fiduciary duties or equitable principles.” Section 122(18)’s proponents also suggested that boards not only could—but would be obligated to—breach contracts under the concept of efficient breach if adherence to the contract would cause the board to breach its fiduciary duties.

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Caremark Developments: Business Risk Versus Massey Claims

Sarah Runnells Martin is Counsel and Dakota B. Eckenrode is an Associate at Skadden, Arps, Slate, Meagher & Flom LLP.  This post is based on their Skadden memorandum, and is part of the Delaware law series; links to other posts in the series are available here.

Delaware case law recognizes that directors and officers owe a duty of oversight, and failure to adequately exercise such duty may result in liability. Such claims — known as “Caremark claims” after the seminal decision in In re Caremark Int’l Inc. (Del. Ch. Aug. 16, 1996) — have developed over the years, with stockholders asserting such claims derivatively on behalf of the corporation.

The Delaware Court of Chancery and Delaware Supreme Court have recognized that recently alleged Caremark claims tend to fall into two categories — claims alleging failure to properly oversee or monitor business risk and those alleging failure to oversee a corporation’s affirmative violation of positive law. Regarding the business risk category, the Court of Chancery has recognized that “the Caremark doctrine is not a tool to hold fiduciaries liable for everyday business problems,”[1] and frequently dismisses claims seeking to hold fiduciaries liable either for ordinary business risks that did not turn out as planned or for financial struggles. However, for the second category of claims, the court has looked to the language of In re Massey Energy, which sustained Caremark claims and reiterated that “Delaware law does not charter law breakers.” Referring to these as “Massey claims,” the court has found that when there are “violations” of positive law such that it “supports a pleading-stage inference that management is operating an enterprise based on recidivous law breaking,”[2] the claims will survive. READ MORE »

Remarks by Commissioner Peirce at the Annual US-Central and Eastern European Connection Weekend

Hester M. Peirce is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent remarks. 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, Lukasz [Chyla],for that introduction. And thank you to the Jagiellonian University and to Catholic University for hosting this conference. Let me begin by stating that my views are my own as a Commissioner and not necessarily those of the U.S. Securities and Exchange Commission or my fellow Commissioners.

The last time I was in Poland was approximately three decades ago. It was a brief but memorable stop on an unfocused American student’s hop across Europe. Among other things, Poland provided me my only hitchhiking experience. Some kind soldiers in a military jeep driving through the richly beautiful, deeply wooded Polish countryside picked my traveling companions and me up in the early morning hours. They were ferrying, in addition to us weary travelers, freshly baked bread, the smell of which still lingers in my memories. On that trip I did not get any of that bread and I did not make it to Krakow, despite the allure of both. All those years ago, I never would have guessed that a conversation about environmental, social, and governance (“ESG”) issues would allow me to visit Poland again. I certainly never would have imagined that I would be a securities regulator spending much time thinking about these issues.

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Williamson and Coase: Transactions Costs or Rent-Seeking in the Formation of Institutions

Gary D. Libecap is a Distinguished Professor of Corporate Environmental Management in the Bren School of Environmental Science & Management and Distinguished Professor of Economics at the University of California, Santa Barbara. This post is based on his working paper.

Governance and transaction cost insights of Williamson and Coase provide understanding of firm structures, management strategies, and antitrust. Economizing on transaction costs within firms and markets explains efficient adaptation.  Neither Williamson nor Coase, however, explore political exchange and rent-seeking (Krueger 1974, Tullock 2005) in the policy arena where transaction cost efficiencies play little role.

Coase (1960) argued that automatic imposition of a Pigouvian “polluter pays” tax placed all adjustment costs on the “polluter” and granted disproportionate benefits to the “pollutee.” The resulting differential incentives led “pollutees” to seek unwarranted, nonoptimal outcomes, driving up costs and making marginal net social benefits negative, lowering aggregate welfare. Moreover, because they did not provide a property right, government policy mandates that inflicted differential costs and benefits were not tradable in response to new information.  A government-imposed remedy for externalities could be more costly than the problem. His counter was to acknowledge the reciprocal nature of externalities across polluters and pollutees, assign tradable property rights, and allow for bargaining for mitigation. With exchange, marginal willingness-to-pay would be equated with marginal willingness-to-accept among the trading partners. Through voluntary, open trade, private marginal costs and benefits would become equalized, and serious imbalances in costs and benefits avoided. A more optimal externality level would result with all parties having a tie to negotiated outcomes.

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SEC Remains Focused on Disclosure of Cybersecurity Incidents

Elizabeth Skey is a Partner and Bingxin Wu is an Associate at Cooley LLP. This post is based on their Cooley memorandum.

Recent Securities and Exchange Commission (SEC) enforcement action and statements by SEC officials show that the Commission remains focused on disclosures regarding cybersecurity incidents. On May 21, 2024, Erik Gerding, director of the SEC’s Division of Corporate Finance, issued a statement to clarify that public companies are only required to disclose a cybersecurity incident under Item 1.05 of Form 8-K if the incident is “determined by the registrant to be material.” The next day, on May 22, 2024, the SEC announced that it has settled charges with The Intercontinental Exchange (ICE) relating to ICE’s alleged failure to timely inform the SEC of a cyber intrusion under Regulation Systems Compliance and Integrity (SCI). While Regulation SCI only applies to a small number of key market participants, the SEC’s enforcement order and recent statements signal that the SEC will not hesitate to enforce regulations that require disclosures of cybersecurity incidents.

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Delaware and a Close Look at Independence

Subodh Mishra is Global Head of Communications at ISS STOXX. This post is based on an ISS-Corporate memorandum by Alyce Lomax and is part of the Delaware law series; links to other posts in the series are available here.

Key Takeaways

  • A Delaware judge’s decision to void $55.8 billion in compensation for Elon Musk was a noteworthy event for shareholders and corporate issuers, not only regarding compensation, but also the complexities around evaluating director independence.
  • Traditional measurements used by major exchanges and proxy advisors seem to show that board independence in the U.S. is robust, but some less obvious non-independent traits may lurk beneath the surface.
  • Our research indicates that Delaware courts could more frequently consider non-traditional/nonfinancial factors in evaluating board independence, process, and fair dealings with shareholders than widely believed.

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Proposed DGCL Amendments Depart From Delaware’s Historical Approach to Activism and Takeover Defense

Keith E. Gottfried is Founder and CEO of Gottfried Shareholder Advisory. This post is based on his Gottfried memorandum and is part of the Delaware law series; links to other posts in the series are available here.

When Delaware Governor John Carney applies his signature to Senate Bill 313, which is expected to occur shortly, the market practice amendments to the Delaware General Corporation Law (the “DGCL”) will officially be incorporated into the DGCL. Thereafter, if things work as intended by the drafters, the market practice amendments will mitigate much of the uncertainty created by the Delaware Court of Chancery’s decision in West Palm Beach Firefighters’ Pension Fund v. Moelis & Co. (Feb. 23, 2024) (“Moelis”) with regards to whether shareholder, governance, and activism settlement agreements unlawfully limit the discretion of a company’s board of directors in violation of Section 141(a) of the DGCL.

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