Monthly Archives: January 2024

When Myopic Managers Must Mark to Market

Adam Kolasinski is a Professor of Finance at Texas A&M University, and Nan Yang is an Associate Professor of Finance at the Hong Kong Polytechnic University. This post is based on their working article. Related research from the Program on Corporate Governance includes Lucky CEOs and Lucky Directors (discussed on the Forum here) by Lucian A. Bebchuk, Yaniv Grinstein, and Urs Peyer.

Strict securities accounting rules that require the recognition of unrealized securities losses in earnings caused banks sell mortgage-backed securities into negative liquidity shocks, a disruptive activity sometimes called, “liquidity feedback trading.” The underlying economic mechanism behind liquidity feedback trading, however, is still poorly understood. Prior scholarly research exclusively investigated a proposed mechanism related to capital ratio compliance concerns, but evidence that this mechanism played major role has proven elusive. Despite the lack of understanding of the economic mechanism behind liquidity feedback trading, in effort to prevent it, regulators in 2009 relaxed accounting rules requiring recognition of unrealized losses. For all but the largest banks in the U.S., these relaxed rules persist, so securities unrealized losses, particularly those related to interest rate movements, are often not charged to earnings or bank capital. Moreover, such unrealized and unrecognized losses featured prominently in the failures of First Republic, Silicon Valley, and Signature Banks during the spring of 2023 (e.g., Flannery and Sorescu, 2023).

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Chancery Court Invalidates Advance Notice Bylaws – Kellner v. AIM.

Gail Weinstein is a Senior Counsel and Philip Richter and Steven Epstein are Partners at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Ms. Weinstein, Mr. Richter, Mr. Epstein, Matthew V. Soran, Andrea Gede-Lage, and P. Ryan Messier and is part of the Delaware law series; links to other posts in the series are available here.

In Kellner v. AIM ImmunoTech (Dec. 28, 2023), the Delaware Court of Chancery, in a post-trial decision, held that certain advance notice bylaw amendments that had been adopted by AIM ImmunoTech Inc.—in response to an activist stockholder’s impending proxy contest for board control—were invalid. The court upheld, however, the company’s rejection of the activist’s notice of director nominations for the 2023 annual meeting, finding that it did not comply with other, valid provisions of the advance notice bylaws.

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Navigating ESG Fatigue in Shareholder Voting

Merel Spierings is Senior Researcher at The Conference Board ESG Center in New York. This post relates to a report authored by Ms. Spierings and based on disclosure data from Shareholder Voting Trends in the Russell 3000 and S&P 500: Live Dashboard, a live online dashboard published by The Conference Board and ESG data analytics firm ESGAUGE, in collaboration with Russell Reynolds Associates and The Rutgers Center for Corporate Law and Governance. Related research from the Program on Corporate Governance includes Social Responsibility Resolutions (discussed on the Forum here) by Scott Hirst; and Stockholder Politics by Roberto Tallarita.

The 2023 proxy season was marked by a record number of shareholder proposals, declining support for proposals, and shareholder proposal fatigue among companies and institutional investors. This report provides guidance on how companies can approach offseason engagement with investors and prepare for the challenges of the 2024 proxy season.

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Indexing and the Incorporation of Exogenous Information Shocks to Stock Prices

Randall Morck is Jarislowsky Distinguished Chair and Distinguished University Professor at the University of Alberta, and M. Deniz Yavuz is Hanna Rising Star Associate Professor at Purdue University Krannert School of Management. This post is based on their NBER working paper. Related research from the Program on Corporate Governance includes Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy by Lucian Bebchuk and Scott Hirst (discussed on the Forum here and here); The Specter of the Giant Three by Lucian Bebchuk and Scott Hirst (discussed on the Forum here); and The Limits of Portfolio Primacy (discussed on the Forum here) by Roberto Tallarita.

Savings increasingly flow to low-cost index funds, which simply buy and hold the stocks in a major index, such as the S&P 500. This study presents direct evidence that increased indexing impairs the flow of information into stock prices. Specifically, similar idiosyncratic foreign currency shocks move the idiosyncratic stock returns of firms sensitive to those currencies 60% less when the firm is in the S&P 500 index than in proximate times when it is not in the index. We rely on currency shocks only because they are relatively simple to measure and quantify, so our findings suggest information flow impairment in general.

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SEC enforcement against public companies – A recap of 2023

Robert A. Cohen is a Partner, and Fuad Rana is Counsel at Davis Polk & Wardwell LLP. This post is based on a Davis Polk memorandum by Mr. Cohen, Mr. Rana, John B. Meade, Ning Chiu, Martine M. Beamon, and Stefani Johnson Myrick.

2023 was an active year in public company enforcement by the U.S. Securities and Exchange Commission, with several first-of-their-kind actions. The SEC looked past traditional financial performance issues and brought disclosure cases involving issues such as cybersecurity, ESG and human capital. Below we share five takeaways as we look toward public company enforcement in 2024.

In 2023, the SEC brought several high-profile enforcement cases involving issues other than financial performance, including claims against public company executives who did not have responsibility for financial reporting. The SEC also asserted aggressive claims involving internal controls requirements and displayed its willingness to litigate, while also messaging the benefits of cooperation. We fully expect the SEC to continue its aggressive approach to issuer disclosure and accounting as we move into the final year of the current administration.

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US Deals 2024 outlook

Colin Wittmer is Deals Leader and John Potter is Deals Clients & Markets Leader at PricewaterhouseCoopers LLP. This post is based on their PwC memorandum.

Corporate profits and alternative structures provide reason for optimism

M&A activity has been hampered as dealmakers seek clear economic signals. The swings of COVID-era volatility have subsided but executives are still searching for equilibrium in a world with sizable valuation gaps, higher-for-longer interest rates and geopolitical-driven economic de-couplings.

While deals are still getting done, many executives have taken a wait-and-see approach, especially when it comes to the transformational deals that abounded in prior years. But hesitancy isn’t stopping the clock from ticking. Business reinvention is an imperative across industries; business-as-usual strategies need the catalyst of transformation to achieve the growth and profit expectations in current valuations. A combination of divestitures and acquisitions are increasingly the fuel to accelerated business transformation.

Savvy leaders that “transact to transform” now have a chance to create greater value and gain an edge on less decisive competitors.

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Chancery Court Confirms High Bar to Pleading Caremark Oversight Claims Against Officers

Gail Weinstein is a Senior Counsel and Philip Richter and Steven Epstein are Partners at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Ms. Weinstein, Mr. Richter, Mr. Epstein, Matthew V. SoranRoy Tannenbaum, and Adam B. Cohen; and is part of the Delaware law series; links to other posts in the series are available here. Related research from the Program on Corporate Governance includes Monetary Liability for Breach of the Duty of Care? (discussed on the Forum here) by Holger Spamann.

Earlier this year, in its McDonald’s decision, the Court of Chancery established for the first time that not only corporate directors but also officers have oversight duties under Caremark. In Segway v. Cai (Dec. 14, 2023), the court, for the first time since McDonald’s, has addressed officers’ Caremark duties.

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Mergers and Acquisitions—2024

Victor Goldfeld and Mark Stagliano are Partners, and Mark Andriola is an Associate at Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell memorandum by Mr. Goldfeld, Mr. Stagliano, Mr. Andriola, Adam Emmerich, Andrew 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, IV, Darius Palia, and Ge Wu; and The New Look of Deal Protection (discussed on the Forum here) by Fernan Restrepo and Guhan Subramanian.

Amid rising interest rates, ongoing fears of a global recession, inflation concerns, volatile share prices, financing market dislocations, geopolitical conflicts and other developments, deal value in the first quarter of 2023 was the lowest for any first quarter in 20 years. The full year saw a 17% decline in global M&A activity compared to 2022. It marked the first year since 2013 that global M&A volume failed to cross the $3 trillion threshold, and represented only 50% of peak 2021 deal value of $5.8 trillion. Transactions involving U.S. targets and acquirers continued to represent a substantial percentage of overall deal volume, with U.S. M&A exceeding $1.26 trillion in 2023 (approximately 44% of global M&A volume), as compared to about $1.5 trillion in 2022 (roughly 43% of global volume).

Despite the overall slowdown in M&A markets, a number of transformative transactions—including several megadeals—were struck. The energy sector saw the two largest deals of the year: Chevron’s $53 billion agreement to acquire Hess and Exxon Mobil’s $59 billion agreement to acquire Pioneer Natural Resources, both announced in the fourth quarter. Only two other deals crossed the $25 billion threshold: Pfizer’s purchase of Seagen for $43 billion and Cisco’s agreement to acquire Splunk for $28 billion. These four $25 billion-plus deals compare to six such deals announced in 2022 and 10 in 2021. Similarly, there were 30 $10 billion-plus deals announced in 2023, against 32 in 2022 and 52 in 2021. As in 2022, a significant number of companies turned to separations, divestitures, carve-outs and spin-offs, with nearly 200 $1 billion-plus divestitures and spin-offs announced.

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Weekly Roundup: January 12-18, 2024


More from:

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

Spillover Effects of Mandatory Portfolio Disclosures on Corporate Investment


Private Equity in 2023—A Year (Not) to Remember


Seven Key Trends in ESG for 2023—and What to Expect in 2024


Corporate Social Responsibility


ESG Performance Metrics in Executive Pay


Strategic Compliance


Insights From Delaware Litigators: What We’re Watching in 2024


Learning by Investing: Entrepreneurial Spillovers from Venture Capital


Edgio, Match, and Trusting Delaware Judges to “Get It Right”


2023 Disclosure Practices on Board Leadership and Structure


Poison Bonds


Key Considerations for the 2024 Proxy Season


Key Considerations for the 2024 Proxy Season

Steven J. Slutzky, William D. Regner, and Simone S. Hicks are Partners at Debevoise & Plimpton LLP. This post is based on a Debevoise memorandum by Mr. Slutzky, Mr. Regner, Ms. Hicks, Eric T. Juergens, Benjamin R. Pedersen, and Alice Gu.

In this client update, we highlight key considerations public companies should keep in mind when preparing their proxy statements for their 2024 annual meetings, including guidance published by the U.S. Securities and Exchange Commission (the “SEC”) regarding:

  • The timing of new insider trading disclosures required by Item 408(b) and Item 402(x), which will not take effect until proxy statements for 2025 annual meetings;
  • Clarifications of the “10 calendar day” period in Rule 14a-6 for determining when a definitive proxy statement can be mailed, the legend requirement under Rule 14a-12 requiring specific reference to participants in a solicitation, and a soliciting party’s discretionary authority in connection with universal proxy cards; and
  • Pay-versus-performance disclosure, including clarification on compensation actually paid to named executive officers and requirements for disclosing the total shareholder return of a company’s peer group in a pay-versus-performance table.

We also discuss other guidance and updates for the 2024 proxy season including requirements relating to compensation clawbacks, reminders relating to advance notice bylaws and officer exculpation amendments, a roundup of shareholder proposal trends for the 2023 proxy season, and updated proxy advisor guidance for the 2024 proxy season.

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