Monthly Archives: March 2024

Retail Investors and Corporate Governance: Evidence from Zero-Commission Trading

Dhruv Aggarwal is an Assistant Professor of Law at Northwestern Pritzker School of Law, Albert H. Choi is the Paul G. Kauper Professor of Law at the University of Michigan, and Yoon-Ho Alex Lee is Professor of Law and Director of the Center on Law, Business, and Economics at Northwestern Pritzker School of Law. 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; and Does Enlightened Shareholder Value Add Value? (discussed on the Forum here) by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita.

What role do retail shareholders play in corporate governance? Finance and legal scholars have long debated and analyzed the impact of changes in shareholder base (from retail to institutional or vice versa) on corporate governance and performance. In a recent paper, we attempt to shed light on this issue by using the sudden abolition of trading commissions by major brokerages in 2019 as a potential natural experiment. The market-wide introduction of zero-commission trading by major brokerages substantially reduced retail investors’ cost of entering the stock market and can be linked to an increase in retail ownership at certain firms. By examining the effect of zero-commission trading and subsequent changes at firms, we attempt to uncover the impact of having more retail shareholders on firm ownership and governance.

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Weekly Roundup: March 1-7, 2024


More from:

This roundup contains a collection of the posts published on the Forum during the week of March 1-7, 2024

Cybersecurity Disclosure Report


SEC set to adopt climate disclosure rules on March 6


Looking ahead: The audit committee agenda in 2024


Fiduciary Duties of Controller Exercising Stockholder-Level Powers to Block Board Action




Final Rules on SPAC IPOs and De-SPACs


Creditors, Shareholders, and Losers In Between: A Failed Regulatory Experiment


Time to rethink talent in the boardroom


2023 Delaware Corporate Law and Litigation Year in Review


Diverse Hedge Funds


Global Corporate Governance Trends for 2024





Statement by Chair Gensler on Final Rules Regarding Mandatory Climate Risk Disclosures

Gary Gensler is Chair of the U.S. Securities and Exchange Commission. This post is based on his recent 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 its staff.

Today, the Commission is considering whether to adopt final rules to mandate climate risk disclosures by public companies and in public offerings. I am pleased to support this adoption because it benefits investors and issuers alike. It would provide investors with consistent, comparable, decision-useful information, and issuers with clear reporting requirements.

Our federal securities laws lay out a basic bargain. Investors get to decide which risks they want to take so long as companies raising money from the public make what President Franklin Roosevelt called “complete and truthful disclosure.”

The SEC has an important role overseeing the disclosures at the core of that basic bargain. Our agency, though, was set up to be merit neutral. Thus, the SEC has no role as to climate risk itself.

Over the last 90 years, we have updated, from time to time, the disclosure requirements underlying the basic bargain and, when necessary, provided guidance with respect to those disclosure requirements. We did it in the 1960s when we first offered guidance on disclosure related to risk factors.[1] We did so in the 1970s regarding disclosure related to environmental risks.[2] We did so in 1980 when the agency adopted Management’s Discussion and Analysis (MD&A) sections in Form 10-K.[3] We did it again in the 1990s when we required disclosure about executive stock compensation.[4] And we did it as well when the Commission issued 2010 Climate Guidance about climate-related risks faced by public companies.[5]

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Statement by Commissioner Peirce on Final Rules Regarding Mandatory Climate Risk Disclosures

Hester M. Peirce is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent 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, Mr. Chair. The final rule is different from the proposal, but it still promises to spam investors with details about the Commission’s pet topic of the day—climate. As we have heard already, the recommendation before us eliminates the Scope 3 reporting requirements, reworks the financial statement disclosures, and removes some of the other overly granular disclosures. But these changes do not alter the rule’s fundamental flaw—its insistence that climate issues deserve special treatment and disproportionate space in Commission disclosures and managers’ and directors’ brain space. Because the Commission fails to justify that disparate treatment, I dissent.

The Commission does not point to a persuasive reason to reject the existing principles-based, materiality focused approach to climate risk. While the Commission insinuates that companies focus too little on climate risks, it offers scant concrete evidence of inappropriate reserve, and even highlights that 36% of annual Commission filings include climate information.[2] Our existing disclosure regime already requires companies to inform investors about material risks and trends—including those related to climate—by empowering companies to tell their unique story to investors. The Commission’s 2010 climate guidance explains how climate-related issues, particularly pertaining to a company’s financial condition, could be required in disclosures under the Commission’s existing regime.[3] Under current rules, companies may have to disclose, among other things, information relating to the “[i]mpact of legislation and regulation,” “international accords,” “[i]ndirect consequences of regulation and business trends,” and “[p]hysical impacts of climate change.”[4] And, although the responsibility for disclosing lies with the company, the Commission’s Division of Corporation Finance reviews company filings and sends comment letters to companies to ensure that they are fulfilling this responsibility. Companies that do not make accurate or complete disclosures could face enforcement actions or private lawsuits.

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Statement by Commissioner Crenshaw on Final Rules Regarding Mandatory Climate Risk Disclosures

Caroline A. Crenshaw is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent statement. The views expressed in this post are those of Commissioner Crenshaw, and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

I. Introduction

Good morning and welcome. I want to start by thanking the hard-working staff of the Securities and Exchange Commission. Your professionalism, expertise, and dedication are surpassed by none, and it is a privilege to work with you in service of the public. You are all making your way through our regulatory agenda with poise, thoughtfulness, and creative problem-solving. Thank you.

I also want to thank former Acting Chair Lee for beginning this project in 2021 with a request for information, which was instrumental in initiating this process.[1]

There has been an intense media glare on our proposal and robust public dialogue. Conversations have been myriad; discourse has been at times heated; opinions have been diverse. And, speculation on the substance of the rule – what is in and what is out – has reached a fever pitch.

I have observed a tendency in these discussions to let the dialogue steer away from the true purpose of our proposal: we proposed this rule to benefit investors who, at the end of the day, are people. That includes people who have put in a lifetime’s worth of labor, and who invest their savings with the promise of a better future for themselves and their families. With luck, some are able to build stability, and create incremental progress toward their financial goals. Investors are at the heart of today’s rulemaking, and it is critical that we give them the information they need to properly assess the risks that underlie the value of their hard-earned savings. They are entitled to consistent, comparable, and reliable climate risk disclosures – and many investors have been calling for such disclosures for years.[2]

Notwithstanding that strong and consistent demand, investors continue to face costly, inconsistent, disparate, and, at times, unreliable data without clearly disclosed methodologies for how these data are calculated.[3] Today’s rule finally begins to change that. As you have heard from the staff, it establishes a floor for a disclosure framework that will provide investors with climate risk information, help inform investors’ investment decisions, and be subject to the rigor of Commission filings.

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Global Corporate Governance Trends for 2024

Rich Fields leads the Board Effectiveness Practice, Rusty O’Kelley co-leads the Board and CEO Advisory Practice in the Americas, and Melissa Martin is a member of the Board Effectiveness Practice at Russell Reynolds Associates. This post is based on a Russell Reynolds memorandum by Mr. Fields, Mr. O’Kelley, Ms. Martin, Amy Sampson, Jens-Thomas Pietralla, and Marc Sanglé-Ferrière.

Corporate governance is dynamic.  Boards and the businesses they oversee face new challenges and opportunities—and new demands from their stakeholders—each year.  To help you and your companies stay ahead of the curve in 2024 and beyond, RRA annually brings together the best thinking from our leadership advisors and a diverse array of influential governance thought leaders.  With thanks to those experts, we are pleased to share our ninth annual report on what to watch in 2024.

Corporate governance and demands on corporate leaders vary significantly from country to country, but four topics stand out as most important to businesses and their boards across the globe in 2024:

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Diverse Hedge Funds

Yan Lu is an Associate Professor of Finance at the University of Central Florida, Narayan Naik is Professor of Finance at London Business School, and Melvyn Teo is Lee Kong Chian Professor of Finance at Singapore Management University. This post is based on their article forthcoming in the Review of Financial Studies. Related research from the Program on Corporate Governance includes Politics and Gender in the Executive Suite (discussed on the Forum here) by Alma Cohen, Moshe Hazan, and David Weiss; Will Nasdaq’s Diversity Rules Harm Investors? (discussed on the Forum here) by Jesse M. Fried; and Duty and Diversity (discussed on the Forum here) by Chris Brummer and Leo E. Strine Jr.

Investment funds are often managed by teams of portfolio managers. Anecdotal evidence suggests that driven by homophily, portfolio managers prefer working alongside other managers with similar backgrounds. it is not uncommon for investment firms to be staffed by portfolio managers who all attended the same university, chose the same major in college, worked at the same investment bank, identify with the same gender, or belong to the same race. For example, the majority of the partners at the now defunct Long-Term Capital Management worked at Salomon Brothers and studied at the Massachusetts Institute of Technology. To address the diversity issues confronting asset managers, industry associations have commissioned reports that seek to improve diversity and inclusion practices. Moreover, institutional investors such as the Yale University Endowment fund, the California Public Employees Retirement System, and the MacArthur Foundation now require that investment firms reveal the diversity of their leadership and workforce, to compel them to improve diversity. These developments beg the question: what are the implications of team diversity for investment performance? While a nascent literature has investigated diversity in asset management, strong and broad-based evidence of the investment benefits of diversity has proven elusive, and the mechanisms by which diversity affects value remain unclear.

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2023 Delaware Corporate Law and Litigation Year in Review

Amy Simmerman is a Partner, Ryan Hart is an Associate, and Angie Flaherty is a Senior Counsel at Wilson Sonsini Goodrich & Rosati. This post is based on a WSGR memorandum by Ms. Simmerman, Mr. Hart, Ms. Flaherty, and Sarah Hand and is part of the Delaware law series; links to other posts in the series are available here.

Introduction

In 2023, the Delaware courts issued many decisions addressing an array of important topics, including director and officer oversight obligations, the role of boards in navigating environmental, social, and governance (ESG) issues, dual-class stock structures and controlling stockholder conflicts of interests, structuring and process considerations for mergers and acquisitions, the enforceability of advance notice bylaws in the face of stockholder activism, and governance matters in the venture-backed company context. The Delaware General Corporation Law (the DGCL) was also updated in certain significant ways. Our 2023 Delaware Corporate Law and Litigation Year in Review surveys the cases and developments that should be of most interest to boards, management, and investors for both public and private companies, and highlights important takeaways from them.

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Time to rethink talent in the boardroom

Jo Iwasaki is Corporate Governance Advisory Lead, Karen Edelman is Senior Editor, and Yasmine Chahed is an Independent Research Consultant at Deloitte Touche Tohmatsu Limited. This post is based on a Deloitte memorandum by Ms. Iwasaki, Ms. Edelman, Ms. Chahed, Karen Bowman, and Kevin Tracey.

Key takeaways

Top insights from our global survey about corporate governance and talent

1) Many boards could be focusing more on talent-related issues.

The biggest challenge is finding the time amid a growing list of priorities competing for boards’ attention.

2) It’s early days for AI discussions in most boardrooms.

Most respondent organizations are just starting to think about their AI strategies.

3) Amplifying the talent experience will require boards to adopt a broader perspective.

Providing interesting work opportunities and workplace flexibility options and developing a workplace culture that instils a sense of belonging are becoming key focus areas.

Boards, like the organizations they oversee, are being pulled in multiple directions: The advent of innovative technologies like generative artificial intelligence, evolving stakeholder expectations, demands for climate action, the need for progress on diversity, equity, and inclusion, and the changing economic, political, health, and geopolitical landscape are all transforming the role of organizations in society. Ultimately, at the center of all this change are the people inside organizations doing the work.

To better understand how organizations—and boards, in particular—are addressing talent and the future of the workforce, the Deloitte Global Boardroom Program surveyed nearly 500 board members and C-suite executives in more than 50 countries (see “Methodology”). We also spoke with business leaders, investors, and subject matter specialists to get their insights on how boards are addressing this complex issue, where the obstacles lie, and what more boards could be doing to help build a robust and resilient workforce for the future.

The big takeaway? Many respondents believe their boards need to be more proactive about discussing talent-related priorities. But for some organizations, balancing talent discussions among the long list of topics on board agendas could be challenging.

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Creditors, Shareholders, and Losers In Between: A Failed Regulatory Experiment

Albert H. Choi is the Paul G. Kauper Professor of Law, and Jeffery Y. Zhang is an Assistant Professor of Law at the University of Michigan Law School. This post is based on their paper.

In March 2023, a financial panic that began with runs on Silicon Valley Bank in California led to three of the four largest bank failures in US history. The turmoil was not contained within the United States. Jitteriness about the overall health of banks spread to Switzerland and claimed Credit Suisse as a victim. In response, the Swiss government engineered an emergency takeover of Credit Suisse by UBS to avoid economic devastation. Shareholders of Credit Suisse were given 1 UBS share for every 22.48 Credit Suisse shares as part of the emergency deal. In other words, Credit Suisse was bailed out—the antithesis of every regulatory innovation since the 2007-08 Global Financial Crisis. This government intervention wasn’t supposed to happen, especially because Credit Suisse had “CoCos” on its balance sheet prior to the panic.

What are CoCos and why do they matter? In the aftermath of the Global Financial Crisis, regulators huddled together in Basel, Switzerland, to begin crafting a new financial regulatory framework. In response to the backlash against the use of public money to rescue financial institutions, their motivation was to realize an aspiration that taxpayers would no longer be left holding the bag during times of crisis. No more bailouts. This new regulatory framework contained dozens of pieces, but at its core was a unique regulatory experiment—the creation of a new debt instrument that could be converted into equity.

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