Monthly Archives: November 2024

2024 Top 250 Report

Lauren Shatanof is a Consultant at FW Cook. This post is based on an FW Cook memorandum by Ms. Shatanof, James Lutz, and Voytek Sokolowski.

INTRODUCTION

This Top 250 Report details executive long-term incentive practices at the 250 largest companies by market capitalization, with special focus on trends over the last five years.

The past five years have shown that company performance and plan payouts can be influenced by a number of factors such as stock price volatility, regulatory updates, changing investor expectations, supply chain disruptions, geopolitical events, inflation, and evolving labor markets. In response, companies have continued to tweak the design of their long-term incentive plans to promote stability and retention

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Carbon Returns across the Globe

Shaojun Zhang is an Assistant Professor of finance at Ohio State University, Fisher School of Business. This post is based on her article forthcoming in The Journal of Finance.

The pricing of carbon transition risk is a key question as investors consider climate-aware investments. Accurate risk pricing can support climate change mitigation, potentially reducing the need for heavy-handed government intervention. In theory, brown firms are more exposed to the transition and policy risk and should earn higher expected returns in equilibrium. However, green firms can outperform in the transition to the net-zero economy when policy shocks kick in, consumer attention turns, and investor tastes shift. Alternatively, if investors do not materially pay attention to carbon footprint, we would not observe significant outperformance by either green or brown firms. Despite substantial interest, both academics and practitioners continue to debate the extent to which financial markets have priced in carbon transition risk.

In this paper, I revisit the carbon return—the return spread between brown and green firms. The measure of carbon transition risk is the carbon intensity or emissions per unit of sales, and emissions data are only available to investors with significant lags. After accounting for the data release lag, the carbon return is significantly negative in the U.S. It varies considerably across countries following climate preference shifts and variations in climate policy tightness. Overall, the evidence suggests that the transition to full carbon-aware pricing is still early and underway.

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SEC Enforcement Reminds Companies to be Careful What They Disclose on Social Media

Jeremy Barr is a Counsel and Katherine Kim and Yunah Ko are Associates at Freshfields Bruckhaus Deringer LLP. This post is based on a Freshfields memorandum by Mr. Barr, Ms. Kim, Ms. Ko, and Ginger Hervey.

A recent enforcement action brought by the Securities and Exchange Commission (“SEC”) offers an important reminder for public companies, as well as their officers, directors and employees, to use caution if disclosing sensitive information about the public company via social media. On September 26, 2024, the SEC announced settlement of an enforcement action against a sports betting and online gaming company for selectively disclosing material non-public information (“MNPI”) through the social media accounts of the company’s CEO, in violation of Regulation Fair Disclosure (“Regulation FD”).

On July 27, 2023, content was uploaded to the CEO’s social media accounts disclosing that the company continued to see “really strong growth” in states where it was already operating. At the time of the posts, the company had not yet publicly disclosed this information. These posts were removed shortly after publication at the request of the company. However, the company did not itself disclose the information included in the social media posts until seven days later when it published its earnings release for Q2 2023.

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Corporate Political Activity Disclosures: A Continued Priority for Investors and Companies

Subodh Mishra is Global Head of Communications at ISS STOXX. This post is based on an ISS-Corporate memorandum by Kosmas Papadopoulos, Head of Sustainability Advisory for the Americas at ISS-Corporate.

For much of the past two decades, transparency regarding corporate political activities has been a key issue in corporate engagements with investors. Over the past decade, shareholder proposals focused on political activity transparency have consistently ranked the highest in volume among proposals submitted at U.S. companies, outpacing all other environmental and social categories, including those related to climate change and human capital management.

As the U.S. presidential election approaches, ISS-Corporate reviewed shareholder proposals submitted to U.S. companies in the past decade, along with the latest corporate disclosure data, to assess key trends and developments in relation to engagements on this crucial topic for companies and investors.

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Recent Action Shows SEC Enforcement Still Focused on ESG

Brian McCabe and Amy D. Roy are Partners and James D. McGinnis is a Counsel at Ropes & Gray LLP. This post is based on a Ropes & Gray memorandum by Mr. McCabe, Ms. Roy, Mr. McGinnis, George B. Raine, and Robert A. Skinner.

A recent Viewpoints article discussed the disbanding of the Climate and ESG Task Force (the “ESG Task Force”) in the Securities and Exchange Commission’s (the “SEC’s”) Division of Enforcement, which had formed in early 2021 under then-Acting Chair Allison Lee and continued under Chair Gary Gensler.

That Viewpoints article encouraged clients to continue to consider their ESG-related risks and applicable disclosures for accuracy, ensure applicable compliance policies are adopted (as appropriate) and followed with relevant testing conducted, notwithstanding the disbanding of the ESG Task Force.  This was because, in part, that SEC staff and spokespersons have indicated that the disbanding of the ESG Task Force should not be viewed by the industry as a change in substantive regulatory approach.

The October 21, 2024 settlement between the SEC and WisdomTree Asset Management Inc. (“WisdomTree”) demonstrates the continuity in SEC ESG enforcement. In the action, the SEC charged WisdomTree with making certain misstatements and compliance failures regarding its management of three ETFs (the “ESG Funds”) registered under the Investment Company Act of 1940 (the “1940 Act”).

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Board Composition: Building Your Dream Team

Paul DeNicola is a Principal, Barbara Berlin is a Managing Director, and Carin Robinson is a Director at the PricewaterhouseCoopers (PwC) Governance Insights Center. This post is based on their PwC memorandum.

Board effectiveness begins with and depends on who’s in the boardroom. Management looks to the board for oversight and counsel, and it’s critical that the directors evaluating information and making key decisions be the right people for the company and for the moment. As companies’ operating models shift and the business landscape changes, boards need to adapt in tandem, regularly assessing whether they have the right skills, experience and diversity of thought for the future direction of the company, and refreshing the board as needed.

Directors should regularly examine who sits on the board. The board’s composition changes as directors retire or leave for other reasons, and board members should have a robust succession planning process to identify the right individual to fill an open seat. Too often, the replacement of a director is done in an ad hoc manner without making a thoughtful and comprehensive review of what the board needs.

Boards today are feeling pressure to make refreshment a priority. Shareholders are increasingly scrutinizing board composition — asking whether the current makeup is best suited for today’s strategy — and some will even vote against individual directors if they feel they have seen too little progress toward reshaping the board.

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2025 SEC Division of Examinations Priorities

Kristin A. Snyder, Julie Riewe, and Robert Kaplan are Partners at Debevoise & Plimpton LLP. This post is based on their Debevoise memorandum.

Key Takeaways:

  • On October 21, 2024, the U.S. Securities and Exchange Commission’s (the “SEC”) Division of Examinations (the “Division”) released its 2025 Examination Priorities (the “Priorities”). The Priorities provide insight into the products, practices, and services the Division views as presenting heightened risk to investors or capital markets and will focus on in its future examinations.
  • Despite the vacatur of the Private Fund Adviser Rules, the 2025 Priorities make clear that the SEC will continue its focus on private fund advisers, shifting its emphasis away from many areas in last year’s Priorities and toward new ones such as compliance with the new amendments to Form PF. The 2025 Priorities also reflect a focus on integration of artificial intelligence, security-based swap execution facilities, funding portals, compliance with the amendments to Regulation S-P and Rule 15c6-1, firms that employ digital engagement practices, and Systems Compliance and Integrity entities’ incident response plans.
  • Along with its new substantive priorities, the Division notes that it made structural changes to focus more specialized resources on supporting its priorities with regard to broker-dealers and exchanges. Those include building out a group to focus on national securities exchanges, adding a national risk strategist to assess and examine planning considerations, and adding a new associate director to strengthen the program’s home office.

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The State of Sustainability in 2024: DEI Will Survive

Rose James is a Senior Associate and Lisa R. Davis and Faten Alqaseer are Senior Managing Directors at Teneo. This post is based on a Teneo memorandum by Ms. James, Ms. Davis, Ms. Alqaseer, Matt Filosa, Diana Lee, and Martha Carter.

Annual sustainability reports remain a critical platform for companies to articulate their diversity, equity and inclusion (DEI) progress and objectives. We conducted an in-depth analysis of DEI disclosures to understand how they evolved in 2024. Our research included many of the topics being attacked by anti-DEI activists, such as goals, talent programs aimed at specific demographics, and supplier diversity initiatives. The following paper provides key insights and takeaways on how corporate DEI disclosure has evolved this year given the challenging environment.

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Shareholder Activism under Donald Trump

Kai H. E. Liekefett and Derek Zaba are Co-Chairs of the Shareholder Activism & Corporate Defense Practice at Sidley Austin LLP.

After Donald Trump’s stunning electoral victory, the question is what this means for shareholder activism.  Numerous activist investors openly endorsed Trump for president in 2024 and donated tens of millions of dollars and more to his campaign and related political action committees.[1] While not all activist investors supported Trump, at this year’s Active-Passive Investor Summit, the premier shareholder activist conference in New York City organized by research and advisory service 13D Monitor, many activist investors were excited about the prospect of another presidency of Donald Trump.[2]  This article examines the impact of another Trump presidency on shareholder activism in the United States and the beyond.

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Weekly Roundup: November 1-7, 2024


More from:

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

Hail to the (Returning) Chief


What Chief Sustainability Officers Are Thinking


The Case for Multigenerational Corporate Boards


SEC Charges Four Companies for Misleading Cyber Disclosures


Governance Protections of the 1940 Act and Abuses Allowed by Annual Meetings


SEC 2025 Exam Priorities


How Leading CEOs are Engaging in Politics


Chancery Rejects Bid For An “Equitable Eraser”


Box Jumping: Portfolio Recompositions to Achieve Higher Morningstar Ratings


2024 CPA-Zicklin Index of Corporate Political Disclosure and Accountability


What Does a Shareholder Engagement Program Look Like?


Lobbying Against Enforcement


When You Should (and Shouldn’t) Have an AI Leader in the C-suite


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