Monthly Archives: October 2024

Weekly Roundup: September 27-October 3, 2024


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This roundup contains a collection of the posts published on the Forum during the week of September 27-October 3, 2024

Billionaire Superstar: Public Image and Demand for Taxation


Doing More, Saying Less: Trends in DE&I Compensation Metrics


Unveiling Key Trends in AI Shareholder Proposals


Trio of SEC Enforcement Actions Underscores Importance of Internal Controls


Shareholder Rights and the Bargaining Structure in Control Transactions


The Magnificent 7: A Sustainability Perspective


Key Takeaways from SEC Fraud Charges Against the CEO, CFO, and Audit Committee Chair of Kubient


Non-Corporate Freezeouts: Theory and Evidence


Activism Vulnerability Report


Settled Actions Reiterate SEC’s Broad Interpretation of Rule 21F-17(a) Whistleblower Impediments


Is There a Business Case for Racial Diversity on Corporate Boards?



Green Bonds: New Label, Same Projects


Reading the Tea Leaves on the SEC’s Disbanding of its Enforcement ESG Task Force


CEO survey


CEO survey

Benjamin Finzi and Brett Weinberg are Managing Directors, and Elizabeth Molacek is a Manager at Deloitte LLP. This post is based on their Deloitte memorandum.

Survey methodology

Over 80 CEOs representing more than 15 industries participated in this Fortune/Deloitte CEO Survey. 88% of respondents are from organizations based in the United States, and the remainder are from organizations based outside of the United States.

Fielded June 11-26, 2024, the survey consisted of 14 questions that explored market outlook, Generative AI, geopolitics, and diversity, equity, and inclusion. The following pages present key findings.

Surveyed CEOs include Fortune 500 CEOs, Global 500 CEOs, and select public and private CEOs in the global Fortune community.

This Summer 2024 survey is the 13th edition of the Fortune/Deloitte CEO survey series. Information on previous surveys is available here.

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Reading the Tea Leaves on the SEC’s Disbanding of its Enforcement ESG Task Force

Jamie D. McGinnis, Amy D. Roy, and George B. Raine are Partners at Ropes & Gray LLP. This post is based on their Ropes & Gray memorandum.

News sources recently reported that the SEC has quietly disbanded its Climate and ESG Task Force for in its Division of Enforcement (the “ESG Task Force”), which had formed in early 2021 under then-Acting Chair Allison Lee and continued under Chair Gary Gensler.  We have received questions from clients regarding what, if anything, this development may mean for asset managers.  Below are some thoughts:

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Green Bonds: New Label, Same Projects

Pauline Lam is a Visiting Scholar at New York University Stern School of Business, and Jeffrey Wurgler is the Nomura Professor of Finance at New York University Stern School of Business. This post is based on their recent paper.

“Green” bonds are so labeled by the issuer because the proceeds are directed to an environmentally friendly project. Green bonds are often considered a leading capital market response to environmental challenges; over $3 trillion have been issued worldwide since the birth of the label less than twenty years ago. Prolific issuers include U.S. and international municipalities and corporations, sovereigns, and supranational entities.

Despite the market interest in the concept of green bonds, there has been little or no systematic analysis of the fundamental “real” proposition: that in buying an issuer’s green bond, as opposed to its ordinary bond, an investor is indeed contributing to some novel good, funding an activity with a sufficiently distinct environmental aspect as to merit buying the bond with the distinct label. In fact, rhetoric regarding in green bond market often takes this proposition for granted.  For example, consider Apple, Inc.’s discussion of their green bond program:  

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2024 Director Compensation Report

Tahmid Ali is a Consultant at FW Cook. This post is based on a FW Cook memorandum by Mr. Ali, Matt Lum, and Zachary Clarke.

EXECUTIVE SUMMARY

FW Cook’s 2024 Director Compensation Report studies non-employee director compensation at 300 companies of various sizes and industries to analyze market practices in pay levels and program structure. Approximately 95% of companies overlap between this year’s and last year’s study.

At median, total director compensation saw more muted increases in 2024 as compared to 2023…

  • Large-cap total director compensation remained roughly flat year-over-year at $315,000 (versus a 4.7% increase in 2023)
  • The mid-cap segment increased by 2.3% to $260,000 (meaningfully smaller increase than the 6.6% observed in 2023)
  • The small-cap segment increased by 5.7% to $210,000 (meaningfully larger increase than the 1.9% observed in 2023).

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Is There a Business Case for Racial Diversity on Corporate Boards?

Attila Balogh is an Assistant Professor of Finance at the University of Melbourne and Scott E. Yonker is a Professor of Finance at the Cornell University SC Johnson College of Business. This post is based on their recent paper.

Public firms in the United States have seen a significant push towards increasing racial diversity on corporate boards, spurred by a combination of legislative action, listing requirements and shareholder pressure. In 2019, California’s Assembly Bill No. 979 was proposed in the legislature, mandating that publicly traded companies headquartered in the state include racial-ethnic minorities on their boards. The bill became law in September 2020, following the rise of the Black Lives Matter (BLM) movement, which sparked a nationwide call for racial equity and placed additional social pressure on companies to diversify their leadership.  In December of 2020, the Nasdaq introduced a listing requirement for firms to include women and racial-ethnic minorities on their boards, a proposal that was approved by the Securities and Exchange Commission (SEC) in August of 2021.

These developments have sparked considerable debate and several legal battles. Proponents argue that board diversity brings fresh perspectives, mitigates groupthink, and ultimately benefits shareholders—a concept known as “the business case for diversity.” Opponents not only question the legality of these mandates but also contend that requiring diversity could lead to suboptimal board selections, potentially reducing firm performance and ultimately harming shareholders.

In our recent study, we empirically test whether there is a business case for racial diversity on corporate boards. We analyze a large sample of over 2,400 U.S. public firms, using the California legislation and the BLM movement as key demand shocks to assess the causal impact of increased board racial diversity on firm performance, value, and risk. Our findings are available in our new working paper, Is There a Business Case for Racial Diversity on Corporate Boards?, and offer novel insights into this ongoing debate.

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Settled Actions Reiterate SEC’s Broad Interpretation of Rule 21F-17(a) Whistleblower Impediments

Andrew Ceresney, Arian June, and Julie Riewe are Partners at Debevoise & Plimpton LLP. This post is based on their Debevoise memorandum.

On September 9, 2024, the Securities and Exchange Commission (the “SEC”) announced settled enforcement actions against seven public companies for Rule 21F-17(a) violations. Rule 21F-17(a) of the Securities Exchange Act of 1934 prohibits any person from taking any action to impede individuals from contacting the SEC to report a possible securities law violation, including enforcing or threatening to enforce a confidentiality agreement. For the past several years, the SEC has been vocal about its position that language in employee agreements, company policies and other material, could be interpreted as having a chilling effect on potential whistleblowers and are therefore violative of Rule 21F-17(a). The latest companies to be charged by the SEC for language contained in their agreements include Acadia Healthcare Company, Inc., a.k.a. Brands Holding Corp.; AppFolio, Inc.; IDEX Corporation; LSB Industries; Smart for Life, Inc.; and TransUnion. Without admitting or denying the charges, these companies each agreed to civil penalties ranging from $19,500 to $1.3 million for a combined total of over $3 million in penalties. The penalty amounts appear to be largely driven by the number of violative agreements identified by the SEC. The recent settlements are the latest cautionary notice for companies to review a broad range of agreements, policies and other communications with individuals for any potential whistleblower impediments.

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Activism Vulnerability Report

Jason Frankl and Brian G. Kushner are Senior Managing Directors and Ryan Chiang is a Managing Director at FTI Consulting. This post is based on a FTI Consulting memorandum by Mr. Frankl, Mr. Kushner, Mr. Chiang, Carl Jenkins, Tom Kim, and Kurt Moeller.

Introduction & Market Update

As summer wraps up, the landscape of shareholder activism has defied the usual mid-summer slowdown in North America, with plenty of high-profile campaigns. Activist investors have targeted some of the country’s most recognizable companies, after a relatively slow first quarter. The current state of activism is marked by high-profile battles, with influential investors like Elliott Management and Starboard Value launching campaigns against several Fortune 1000 corporations, including Southwest Airlines, Starbucks and Autodesk.

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Non-Corporate Freezeouts: Theory and Evidence

Guhan Subramanian is the Joseph H. Flom Professor of Law and Business at Harvard Law School and the H. Douglas Weaver Professor of Business Law at Harvard Business School and Fernán Restrepo is an Assistant Professor of Law at the UCLA School of Law. This post is based on their recent paper.

Corporate freezeouts (that is, transactions in which the controlling shareholder of a corporation buys out the minority shares) are subject to enhanced judicial scrutiny in the form of entire fairness review. In contrast, this form of judicial review often does not apply to freezeouts of non-incorporated business entities because the controlling shareholder of those entities can waive the duty of loyalty. In a recent paper, we find that this doctrinal difference is associated with significantly inferior gains for the minority shareholders in non-corporate freezeouts.

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Key Takeaways from SEC Fraud Charges Against the CEO, CFO, and Audit Committee Chair of Kubient

Jennifer Lee and Charles Riely are Partners, and Reanne Zheng is an Associate at Jenner & Block LLP. This post is based on their Jenner & Block memorandum.

Earlier this month, the SEC brought accounting fraud charges in the U.S. District Court for the Southern District of New York against the CEO, CFO, and Audit Committee Chair of Kubient, a company that purported to use AI services to detect fraud in advertisements.[i] The charges focused on the CEO’s scheme to inflate the company’s revenues in connection with its IPO and subsequent stock offering, and the concomitant failures by the CFO and Audit Committee Chair to investigate and report the CEO’s misconduct to the company’s outside auditors.

The SEC’s fraud charges against the CFO and Audit Committee Chair are significant. While recognizing that the accounting fraud scheme was “initiated” by the CEO, an SEC official noted in the agency’s accompanying press release that the case “should send an important signal to gatekeepers like CFOS and audit committee members that the SEC and the investing public expect responsible behavior when critical issues are brought to their attention.”[ii] This client alert analyzes the SEC’s case and provides key takeaways for officers and directors in the context of financial reporting issues.

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