Monthly Archives: February 2025

Economic Surveillance using Corporate Text

Stephan Hollander is a Professor of Financial Accounting at Tilburg University. This post is based on a NBER working paper by Professor Hollander, Professor Tarek Alexander Hassan, Professor Aakash Kalyani, Professor Laurence van Lent, Mr. Markus Schwedeler, and Professor Ahmed Tahoun.

Over the past decennium, we have witnessed a significant growth in the volume of company-released text data, ranging from transcripts of periodic earnings calls—in which company management discusses their firms’ financial performance, future outlook, and strategic initiatives—to an extensive array of regulatory filings required of companies traded on U.S. stock exchanges. Economists are increasingly recognizing its potential as a powerful resource for economic analysis and insights.

In our article, we discuss how to apply various computational linguistics tools to analyze unstructured texts provided by firms, uncovering how markets and firms respond to economic shocks—whether caused by a natural disaster or geopolitical event—offering insights often beyond the scope of traditional data sources. We highlight examples of corporate-text analysis, including earnings call transcripts, companies’ patent documents, and job postings.

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Glass Lewis and ISS Publish 2025 Updates

Brandon Gantus is a Partner, and Courtney Mathes and Mark Cornillez-Ty are Associates, at Wilson Sonsini Goodrich & Rosati. This post is based on a WSGR memorandum by Mr. Gantus, Ms. Mathes, Mr. Cornillez-Ty, Richard Blake, Jose Macias, and Lisa Stimmell.

On November 14, 2024, Glass Lewis published its 2025 U.S. Benchmark Policy Guidelines (U.S. Guidelines), and its 2025 Shareholder Proposals & ESG-Related Benchmark Policy Guidelines (ESG Guidelines), both effective for shareholder meetings held on or after January 1, 2025. On December 17, 2024, ISS Governance published its Benchmark Policy Changes for 2025: U.S., Canada, and Americas Regional (ISS Guidelines), effective for shareholder meetings held on or after February 1, 2025.[1] This alert summarizes updates made to these voting policy guidelines.

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A Review of Director Commitments Policies, 2023 to 2024

Samuel Nolledo is a Research Analyst, Sarah Wenger is Senior Analyst, and Aaron Wendt is Director of U.S. Governance Policy at Glass, Lewis & Co. This post is based on a Glass Lewis memorandum by Mr. Nolledo, Ms. Wenger, Mr. Wendt, and Dimitri Zagoroff.

In recent years, director commitments policies have become more prevalent at U.S.-based companies. Director commitments policies can reduce risks stemming from potentially overcommitted directors, facilitate active board refreshment and ensure that a board engages in thoughtful dialogue around director time commitments. Many institutional investors are incorporating director commitments policies into their evaluation of directors and proxy voting guidelines, and in response companies are increasingly implementing them.

In this post, we follow up on our prior analysis with a review of the increased adoption of director commitments policies over the past year and the evolution of their design and disclosure.

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Strategic Insider Trading and Its Consequences for Outsiders: Evidence From the Eighteenth Century

Mathijs Cosemans is an Associate Professor of Finance at Erasmus University, and Rik Frehen is a Professor of Finance at Tilburg University. This post is based on their recent article forthcoming in the Journal of Financial Economics.

Motivation

Information asymmetry is inherent to trading and will always remain a threat to the fairness and integrity of financial markets. It is therefore important to understand how informed investors exploit their information advantage and how their strategic trading behavior affects uninformed investors. In our paper Strategic Insider Trading and its Consequences for Outsiders: Evidence from the Eighteenth Century, which is published in the Journal of Financial Economics, we answer these questions using unique hand-collected data from the early eighteenth-century London stock market. Because there were no legal restrictions on insider trading in this era, we can better identify the value of private information and the trading behavior of insiders.

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President Trump Acts to Roll Back DEI Initiatives

Tracy Richelle High, Julia M. Jordan, and Ann-Elizabeth Ostrager are Partners at Sullivan & Cromwell LLP. This post is based on a Sullivan & Cromwell memorandum by Ms. High, Ms. Jordan, Ms. Ostrager, Diane L. McGimsey, Scott D. Miller, and William S. Wolfe.

Executive Orders:

  • Require Attorney General to Recommend Measures to Encourage Private Sector to End Illegal DEI Practices
  • Establish Federal Policy of Two Genders Only, Cease Virtually All DEI-Related Activities in the Federal Workforce, and Cancel Affirmative Action Requirements for Federal Contractors

Summary

Consistent with President Trump’s campaign promises, the White House has taken swift and significant actions to roll back diversity, equity, and inclusion (“DEI”) programs and initiatives through executive orders. The executive orders direct the Attorney General, in consultation with the heads of relevant federal agencies, to identify private sector companies with “egregious and discriminatory” DEI programs, signaling potential investigations of publicly traded corporations and large non-profits as well as litigation and potential “regulatory action and sub-regulatory guidance” impacting the private sector. The executive orders establish a federal policy of recognizing two genders only, cease virtually all DEI-related activities in the federal workforce, and rescind a number of DEI-related executive orders issued by prior administrations, including Executive Order 11246, which requires federal contractors to implement affirmative action programs.

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Delaware Court Upholds Private Equity-Led Company Sale Under Business Judgment Rule

Jason Halper, Peter Marshall, and Sara Brauerman are Partners at Vinson & Elkins LLP. This post is based on a Vinson & Elkins memorandum by Mr. Halper, Mr. Marshall, Ms. Brauerman, and Anna Boos, and is part of the Delaware law series; links to other posts in the series are available here.

On January 7, 2025, Vice Chancellor Glasscock issued a 68-page post-trial decision in Manti Holdings, LLC v. The Carlyle Group Inc., in which he rejected plaintiffs’ claims of breach of fiduciary duty in connection with the sale of Authentix Acquisition Company, Inc. (“Authentix” or the “Company”) to private equity firm Blue Water Energy LLP (“BWE”) in September 2017. The plaintiffs, minority stockholders of Authentix, alleged that the Carlyle Group Inc. and its affiliates (“Carlyle”), as a controlling stockholder, compelled the Authentix board to approve a “fire sale” of the Company to meet its own liquidity needs coinciding with the end of the initial term of the primary Carlyle fund that acquired Authentix. The Court found that, while Carlyle was a controlling stockholder by virtue of its ownership of over 50% of the Company’s common and preferred stock (giving it voting control), and that a majority of the board was not independent of Carlyle, it did not have a disabling conflict of interest nor did it obtain a “non-ratable benefit denied” to other stockholders so as to trigger entire fairness review in connection with the “arms-length” sale to BWE. Applying deferential business judgment rule review, the Court found for the defendants after a seven-day trial in January 2024.

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A New Regulatory Environment for Climate and Other ESG Reporting Rules

Amelie ChampsaurHelena Grannis, and Shuangjun Wang are Partners at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary memorandum by Ms. Champsaur, Ms. Grannis, Ms. Wang, and Léa Delanys.

The Ill-Fated SEC Climate Rule

On March 6, 2024, the SEC adopted final rules “to enhance and standardize climate-related disclosures for investors,” which included, among other things, requirements to disclose material climate-related risks and related governance policies and practices and mitigation and adaptation activities, targets and goals, Scope 1 and 2 emissions reports and financial statement effects of severe weather events and other natural conditions, including related costs and expenditures (the Climate Rule). [1]

Almost immediately upon release of the Climate Rule, multiple lawsuits were filed in federal court objecting to the rule on multiple bases, including that the rule is arbitrary and capricious under the Administrative Procedure Act, the rule exceeds the SEC’s statutory authority and the rule violates the First Amendment by compelling political speech. [2] The U.S. Court of Appeals for the Eighth Circuit was randomly selected as the venue for consolidating the nine filed lawsuits and on April 4, 2024 the SEC voluntarily stayed the rules pending the outcome of the litigation. Briefs have been filed by all parties and the case is currently pending a hearing date.

On December 4, 2024, President-elect Donald Trump announced that Paul Atkins would be his nominee to the SEC as Chairman. Current Chair Gensler and Commissioner Lizárraga both announced their intentions to step down in January 2025 before the inauguration, meaning the SEC will have a majority of Republican Commissioners even before Atkins can be confirmed. The change in administration is expected to bring a deregulatory focus and anticipated reduction in budget and spending for administrative agencies, which, together with the quick turnover at the SEC, is anticipated to mean the end of certain ESG related SEC rulemaking initiatives, including the Climate Rule (along with any new proposed rules on board diversity disclosure and human capital management reporting). Procedurally, the SEC under the new administration could abandon the defense of the rule in court (leading to its vacatur); alternatively, it could take regulatory action to rescind the rule (which would require formal rulemaking, including new notice and comment periods), and, pending a final determination, the SEC could announce that it will not lift the stay or enforce the rule, so that in practice it is never implemented.

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Delaware’s Rocky Year–What Lies Ahead?

Mark E. McDonald and Roger A. Cooper are Partners, and Peter Carzis is an Associate, at Cleary Gottlieb Steen & Hamilton LLP. This post is based on their Cleary memorandum and is part of the Delaware law series; links to other posts in the series are available here.

2024 was a remarkable year in Delaware.

For the first time in as long as anyone can remember, people began to seriously question whether Delaware would retain its dominance as the go-to jurisdiction for incorporating companies. There was an uproar following several decisions by the Delaware Court of Chancery that seemed to shake the market’s confidence in Delaware law’s venerable predictability. One such decision invalidated shareholder agreement provisions that had long been commonplace and another found that a board had not validly approved a merger agreement because, as is typical, the board had not received a draft in final form. At the same time, a certain well-known CEO’s $50 billion compensation package was struck down, leading him to publicly declare “Never incorporate your company in the state of Delaware.” [1]

In the face of this public pressure, the Delaware legislature moved at unprecedented speed to amend the Delaware General Corporation Law in order to “overrule” several of the decisions that caused the most immediate concern (to the consternation of many, including the judges who had decided the cases that were overruled). But a sense of unease persists, especially regarding the Delaware courts’ recent perceived hostility towards controlling stockholders. For this reason, several controlled companies have already elected to leave Delaware for other jurisdictions such as Nevada or Texas–in one such case, the Delaware Court of Chancery found the decision to leave should be reviewed under the entire fairness test, although the Delaware Supreme Court quickly accepted an interlocutory appeal (which remains pending) to reconsider that issue.

Still, notwithstanding the turbulence in Delaware, there has been no mass “DExit.” [2] In large part, that is because it remains unclear whether other jurisdictions would “solve” the perceived problems Delaware is facing. Nevada and Texas, among others, have publicly sought to lure companies away from Delaware, including by setting up dedicated business courts intended to operate like the Delaware Court of Chancery and pointing to differences in their corporate statutes. But it remains to be seen how these courts will operate in practice, and numerous questions abound as to how these states’ corporate laws will be applied in the seemingly countless circumstances that have been addressed by Delaware’s statutory and decisional law over many decades. Meanwhile, notwithstanding the grumbling, Delaware courts remain unparalleled in their sophistication on corporate issues and in their ability to decide complex cases expeditiously.

Below we summarize some of the key developments in Delaware law over the past year and give a preview of what we think is coming in 2025.

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Weekly Roundup: January 31-February 6, 2025


More from:

This roundup contains a collection of the posts published on the Forum during the week of January 31-February 6, 2025

Thoughts for Boards: Key Issues in Corporate Governance for 2025



Action Items for U.S. Public Companies for 2025


Financial Institutions MA Key Trends and Outlook


Private Equity for Pension Plans? Evaluating Private Equity Performance from an Investor’s Perspective


CEO and C-Suite ESG Priorities for 2025


Approach to Corporate Enforcement May Become More Business-Friendly


Embedded Culture as a Source of Comparative Advantage


Proxy Voting Policy for U.S. Portfolio Companies


White-Collar and Regulatory Enforcement: What Mattered in 2024 and What to Expect in 2025


How the EU’s Sustainability Due Diligence Directive Could Reshape Corporate America


Looking Ahead to 2025


Outlook for M&A and Activism in 2025


Political Power and Market Power


Anti-ESG Proposals Have Increased in Volume, but Fare Poorly


Anti-ESG Proposals Have Increased in Volume, but Fare Poorly

Jeremy Ho is a Senior Research Analyst at Equilar, Inc. This post is based on his Equilar memorandum.

The movement for greater corporate responsibility over environmental, social and governance issues, commonly known as ESG, has become increasingly prevalent across boardrooms and shareholder meetings in recent years. However, alongside this momentum, there has been growing opposition to corporate ESG initiatives, and groups critical of these efforts have grown in tandem. The debate over ESG has been a hot-button topic for years—further exacerbated since the COVID-19 pandemic—and has only continued to grow in importance within shareholder meetings.

A recent example can be seen in Costco’s latest proxy filing, where the Company defended its DEI program against an anti-ESG proposal that criticized the initiative as financially irresponsible and discriminatory. This comes at a time when an increasing number of companies are rolling back similar programs. The pressure from anti-ESG shareholder proposers continues to grow, making its way into corporate boardrooms.

This Equilar study analyzes all anti-ESG shareholder proposals that have been presented at companies’ general shareholder meetings within the Equilar 500—the 500 largest U.S. public companies by revenue—over the last five years. Shareholder proposals were categorized as anti-ESG if they mention calling for a decrease in claiming corporate responsibility for issues that span environmental, social and governance topics or are critical of investor intervention that call for companies to be held liable for social or environmental issues. READ MORE »

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