Monthly Archives: August 2024

The tech-forward boardroom: Fostering richer boardroom conversations on technology

Lou DiLorenzo Jr. is a Principal, Lara Abrash is the Chair, and Anjali Shaikh is a Managing Director at Deloitte LLP. This post is based on a Deloitte memorandum by Mr. DiLorenzo Jr., Ms. Abrash, Ms. Shaikh, Cary Oven, Caroline Schoenecker, and Erika Maguire.

As technology continues to be an important driver in business transformation across organizations, there’s been a steady increase in boards looking to appoint board members with technology experience over the past few years. According to Deloitte’s 2023 Global Technology Leadership Study, 67% of organizations surveyed say at least one of their board members has experience in a technology leadership role,[1] compared to 56% in 2020.[2]

Despite technology and telecommunications being the most common industry background for new directors,[3] there is often still a gap in how well the board and technology leaders (chief information officers, chief technology officers, chief information security officers, etc.) are connecting on technology topics. Only 36% of board members surveyed report having full confidence in their technology leaders, and more than four in 10 C-suite executives say their board’s oversight of technology matters is not sufficient in either scope or depth.[4] Part of this disconnect could stem from boards governing multiyear transformations and capital spend, but still feeling like technology spend and costs are a black box since technology leaders struggle with measuring and articulating the business impact of technology investments.[5]

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Misalignment Under the Radar: Stealth Dual-Class Stock

James Crowe is the Research Manager at the Council of Institutional Investors. This post is based on a research article by the Council of Institutional Investors Research and Education Fund.

Executive Summary

Traditional dual-class or multi-class stock structures have received significant attention from market participants because of the disconnect they create between voting rights and economic ownership, thereby insulating company insiders from accountability to the company’s owners. However, it is important for investors to understand that companies can deliver substantially similar entrenchment mechanisms without creating multiple classes of common stock or adopting widely understood anti-takeover devices such as poison pills. In fact, there may be an incentive for insiders to achieve the same control enhancing outcomes without adopting a traditional dual-class structure. By doing so, they may receive the private benefits of outsized decision-making power without receiving the negative attention and stock price discount accompanying dual-class stock. This paper reviews nine examples of arrangements that could constitute “stealth dual class”: identity-based voting power, side agreements with favored shareholders, stock pyramiding/cross-ownership, umbrella partnerships and C corporations (UpCs), employees granting irrevocable proxy voting rights transferred from employees to insiders, golden shares, situational super-class issuances, non-equity votes and vote caps.

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Weekly Roundup: August 23-29, 2024


More from:

This roundup contains a collection of the posts published on the Forum during the week of August 23-29, 2024

Federal Court Issues Nationwide Injunction Blocking FTC Non-Compete Ban


Integrating Geopolitics and Sustainability for Future-Ready Leadership


Do I need to make money to go public?


The Sustainability J-Curve


Recent Developments for Directors


The Sound of Silence in Corporate Director Resignations


ISS Opens Survey for 2025 Policy Changes; Glass Lewis Seeks Informal Feedback


District Court Holds Missouri’s “Anti-ESG” Rules are Preempted by Federal Law, Violate First Amendment, and are Unconstitutionally Vague


Time to rethink performance shares?


The Golden Revolving Door


Proxy Season Global Briefing: Shareholder Rights & Corporate Governance


Proxy Season Global Briefing: Shareholder Rights & Corporate Governance

Chris Rushton and Brianna Castro are Senior Directors of Research and Aaron Wendt is a Director of Research at Glass, Lewis & Co. This post is based on a Glass Lewis memorandum by Mr. Rushton, Ms. Castro, Mr. Wendt, Bernadette O’Donoghue, Dimitri Zagoroff, and Eric Shostal.

The 2024 proxy season saw shareholder rights and corporate governance standards put to the test. Prioritizing market competitiveness, exchanges and regulators in several countries proposed or implemented reforms that threaten longstanding investor protections; the U.S. saw an increase in accounting and anti-takeover concerns, as issuers that listed during the 2020-2022 SPAC/IPO boom continue to adjust to the public markets; and companies around the world continued to integrate new technologies – and investor expectations – into their annual meeting format.

In the first installment of our Proxy Season Global Briefing, we provide a rundown of headlines and key trends relating to shareholder rights and corporate governance from around the globe. You can also access the full Briefing here, or via the content libraries on Viewpoint and Governance Hub.

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The Golden Revolving Door

Lauren H. Cohen is the L. E. Simmons Professor of Business Administration at Harvard Business School. This post is based on a working paper by Professor Cohen, Professor Ling Cen, Professor Jing Wu, and Mr. Fan Zhang.

Summary

In the dynamic landscape of today’s interconnected global economy, geopolitical disruptions can send shockwaves along global supply chains through international trade. While many firms struggle to navigate these turbulent waters, some manage to sail smoothly—and even thrive. The secret? Our latest research discovers that government connections, especially those established by recruiting ex-government employees, play an important role in hedging geopolitical risks. Our research paper (Cen, Cohen, Wu, & Zhang, 2023) explores how firms with strong government connections leverage these relationships to gain a strategic advantage during major trade disruptions such as the US-China trade war and the Russia-Ukraine conflict. By uncovering the economic mechanisms underpinning this phenomenon, we provide insights for the value of human capital investment in government connections under geopolitical uncertainties.

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Time to rethink performance shares?

Ola Peter Gjessing is a Lead Investment Stewardship Manager at Norges Bank Investment Management (NBIM). This post is based on his NBIM memorandum.

Time to rethink performance shares?

This is the year that the two leading proxy advisors separately ask clients whether to abandon their favoring of CEO ‘performance shares’ over simpler stock incentives. That is significant because both Institutional Investor Services (ISS) and Glass Lewis for years have heralded three-year performance metrics for equity grants as a measure of good compensation practices. The problem is that it does not seem to work. And it does seem to be expensive.

ISS and Glass Lewis should be commended for listening to concerned investors, like ourselves, and openly inviting views on the merits of simpler, more transparent and longer-term equity grants as replacement for popular but complex performance-conditioned grants. Both agencies have transparently published their consultations online, for which they also deserve credit. See ISS’ Annual Global Benchmark Policy Survey (questions 15-20) and Glass Lewis’ 2024 Investor Client Policy Survey (question 22).

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District Court Holds Missouri’s “Anti-ESG” Rules are Preempted by Federal Law, Violate First Amendment, and are Unconstitutionally Vague

Charity E. Lee is a Counsel, Jared Gerber is a Partner, and Adrian Gariboldi is an Associate at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary Gottlieb memorandum by Ms. Lee, Mr. Gerber, Mr. Gariboldi, Francesca L. Odell and Robin M. Bergen.

On August 14, 2024, the U.S. District Court for the Western District of Missouri (the “District Court”) issued a decision ordering a permanent injunction against rules promulgated by the Missouri Securities Division, colloquially referred to as Missouri’s “Anti-ESG” Rules, requiring that broker dealers and investment advisers disclose to and obtain written consent from customers if their investment decisions or advice “incorporate[] a social objective or other nonfinancial objective” (the “Rules”).  The District Court held the Rules were preempted by both the National Securities Markets Improvement Act of 1996 (“NSMIA”) and the Employment Retirement Income Security Act of 1974 (“ERISA”).  The District Court also held the Rules violated the First Amendment’s protection against compelled speech and were unconstitutionally vague.  The decision highlights the limits of U.S. state power in policing the social objectives broker dealers and investment advisers incorporate into their practice and, if not overturned on appeal, suggests that broker dealers and investment advisers may face less legislative pushback, at least at the state level, in pursuing environmental, social, and governance (“ESG”) objectives in the future.

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ISS Opens Survey for 2025 Policy Changes; Glass Lewis Seeks Informal Feedback

Michael Bergmann is a Partner and Michael Mencher and Luci Altman are Special Counsels at Cooley LLP. This post is based on a Cooley memorandum by Mr. Bergmann, Mr. Mencher, Ms. Altman, Brad Goldberg, Beth Sasfai, and Alessandra Murata.

ISS and Glass Lewis annual policy surveys have launched

  • As is typical, executive compensation issues are covered in the Institutional Shareholder Services (ISS) and Glass Lewis annual policy surveys this year, with each survey seeking input on whether the policies should be revised to treat time-based equity awards with lengthy vesting periods more favorably than is presently the case.
  • While ISS focuses more on shareholder proposal-related policies, consistent with recent years, the Glass Lewis survey includes numerous questions regarding board oversight and performance, including director accountability.
  • Consistent with the relatively minor policy amendments from ISS and Glass Lewis in 2024, these surveys suggest that 2025 amendments also may be relatively low impact.
  • It is interesting to note that Glass Lewis has a question focused on director cross-company accountability, as any policy in this area would be impactful for companies in industries where cross-pollination of directors is common.

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The Sound of Silence in Corporate Director Resignations

Asaf Eckstein is an Associate Professor of Law and Ziv Granov is an LLB Student at the Hebrew University of Jerusalem. This post is based on their recent article forthcoming in the Washington and Lee Law Review Journal.

One critical aspect of corporate governance is transparency between shareholders and management. Shareholders entrust managerial agents to run the firm’s operations while partaking in the profits from afar. This agency relationship creates information asymmetry between the passive shareholders and active day-to-day managers, limiting the shareholder’s ability to effectively monitor the firm’s operations (Jensen & Meckling, 1976).

Information disclosure, whether mandatory or voluntary, is an effective tool to mitigate this asymmetry. By requiring firms to periodically disclose material facts that may affect shareholders, policymakers minimize the informational gap between the parties and keep shareholders engaged. This exchange is especially relevant between shareholders and directors, who act as monitors and develop the firm’s long-term business strategy. The corporate literature often discusses increasing transparency with shareholders, specifically regarding topics like executive compensation, compliance and oversight, and ESG practices.

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Recent Developments for Directors

Julia ThompsonKeith Halverstam, and Jenna Cooper are Partners at Latham & Watkins LLP. This post is based on a Latham memorandum by Ms. Thompson, Mr. Halverstam, Ms. Cooper, Charles RuckRyan Maierson, and Joel Trotter.

Internal Accounting Controls Provide All-Purpose SEC Enforcement and Continued Focus on Cyber

Last month, the SEC announced another enforcement action emphasizing the need for early disclosure of cybersecurity events. In the recent action, the company had taken three weeks to act on internal alerts of malware on its network and experienced a ransomware attack that did not affect the company’s accounting systems. The SEC charged the company with failing to maintain internal accounting controls to limit unauthorized access to company assets and failing to maintain effective disclosure controls and procedures. The enforcement action continues the SEC’s pattern of enforcement based on an expansive view of internal accounting controls, following two prior cases alleging accounting controls violations for stock buyback authorizations that failed to satisfy the conditions for trading plans under Rule 10b5-1.

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