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Program on Corporate Governance Advisory Board
- Peter Atkins
- David Bell
- Kerry E. Berchem
- Richard Brand
- Daniel Burch
- Paul Choi
- Jesse Cohn
- Arthur B. Crozier
- Renata J. Ferrari
- Andrew Freedman
- Ray Garcia
- Joseph Hall
- Jason M. Halper William P. Mills
- David Millstone
- Theodore Mirvis
- Philip Richter
- Elina Tetelbaum
- Sebastian Tiller
- Marc Trevino
- Steven J. Williams
Author Archives: Harvard Law School Forum on Corporate Governance and Financial Regulation
Material Adverse Effect Clauses and the COVID-19 Pandemic
In a working paper just posted on SSRN, I consider whether the COVID-19 pandemic, the governmental responses thereto, and a company’s actions taken in reaction to both of these are likely to constitute a “Material Adverse Effect” (MAE) within the meaning of a typical MAE clause in a public company merger agreement. In addition to […]
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Posted in Academic Research, Accounting & Disclosure, Comparative Corporate Governance & Regulation, Mergers & Acquisitions, Securities Litigation & Enforcement
Tagged Acquisition agreements, COVID-19, Delaware law, Materiality, Merger litigation, Mergers & acquisitions, Systemic risk
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On the Purpose of the Corporation
The growing view that corporations should take into account environmental, social and governance (ESG) issues in running their businesses, and resistance from those who believe that companies should be managed solely to maximize share price, has intensified the focus on the more fundamental question of corporate governance: what is the purpose of the corporation? The […]
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Posted in Boards of Directors, Corporate Social Responsibility, ESG, International Corporate Governance & Regulation, Practitioner Publications
Tagged Boards of Directors, Corporate Social Responsibility, COVID-19, ESG, International governance, Long-Term value, Profitability, Shareholder value, Stakeholders, Sustainability
3 Comments
Three Is Not A Trend: Another Caremark Claim Survives A Motion To Dismiss, But Does Not Reflect A Change In The Law
The Delaware Court of Chancery recently denied another motion to dismiss a Caremark claim in Hughes v. Hu. Under In re Caremark International Inc. Derivative Litigation, directors have a duty to exercise oversight and monitor a corporation’s operational viability, legal compliance, and financial performance and reporting. Hughes is now the second decision, after In re […]
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Posted in Accounting & Disclosure, Boards of Directors, Court Cases, Mergers & Acquisitions, Practitioner Publications, Securities Litigation & Enforcement
Tagged Accounting, Audit committee, Boards of Directors, Books and records, Caremark, Delaware cases, Delaware law, Disclosure, Discovery, Merger litigation, Mergers & acquisitions
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Board Oversight in Light of COVID-19 and Recent Delaware Decisions
In times of crisis, the risk of shareholder derivative litigation rises as boards of directors face heightened scrutiny of their actions. While business judgment protection applies to good faith board efforts to navigate a crisis, boards and their advisors should be mindful of guidance that the Delaware courts have issued in the past year, including […]
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Posted in Accounting & Disclosure, Court Cases, Practitioner Publications, Securities Litigation & Enforcement
Tagged Board oversight, Caremark, Compliance and disclosure interpretation, COVID-19, Delaware cases, Delaware law, Director liability, Fiduciary duties, Liability standards, Securities litigation
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The Blue Bell Dairy CEO Indictment and its Implications for Executive Liability
The May 1, 2020 federal felony indictment of former Blue Bell Creameries LLP CEO Paul W. Kruse provides an important lesson to governing boards and their senior executives on the regulatory risks associated with communications during times of corporate crisis, especially communications with public health and safety implications. Company executives and public relations consultants often […]
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Posted in Accounting & Disclosure, Boards of Directors, Corporate Social Responsibility, Court Cases, Practitioner Publications, Securities Litigation & Enforcement
Tagged Boards of Directors, Compliance and disclosure interpretation, Corporate crime, Corporate fraud, Corporate liability, Corporate Social Responsibility, Management, Securities litigation, Transparency
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Recent Delaware Court of Chancery Decision Sustains Another Caremark Claim at the Pleading Stage
After decades of routinely dismissing such claims, Vice Chancellor Laster’s recent 41-page decision in Hughes v. Hu represents the third time since the Delaware Supreme Court’s decision last year in Marchand v. Barnhill that the Court of Chancery has sustained a Caremark duty of oversight claim at the pleading stage. It remains unlikely that these […]
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Posted in Boards of Directors, Court Cases, Practitioner Publications, Securities Litigation & Enforcement
Tagged Audit committee, Board oversight, Boards of Directors, Caremark, Delaware cases, Delaware law, Director liability, Liability standards, Oversight, Securities litigation, Shareholder suits
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Human Capital: Key Findings from a Survey of Public Company Directors
The focus on human capital and talent in corporate governance is intensifying, as more stakeholders—led by large institutional investors—seek to understand how companies are integrating human capital considerations into the overarching strategy to create long-term value. After all, a company’s intangible assets, which include human capital and culture, are now estimated to comprise a significant […]
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Posted in Boards of Directors, ESG, Practitioner Publications
Tagged Boards of Directors, Corporate culture, ESG, Human capital, Labor markets, Long-Term value, Management, Surveys
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Remarks by Commissioner Peirce at Meeting of the SEC Investor Advisory Committee
Thank you Anne [Sheehan] and other members of the committee for arranging an impressive list of panelists to share their views and perspectives on the important topics on today’s [Friday, May 21. 2020] agenda. The committee has not let COVID-19 stop it from holding meetings; this is the third such meeting in the last two […]
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Posted in Accounting & Disclosure, ESG, Practitioner Publications, Regulators Materials, Securities Regulation, Speeches & Testimony
Tagged Disclosure, Environmental disclosure, ESG, SEC, Securities regulation, Stakeholders, Transparency
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Statement by Commissioner Lee on Financial Disclosures About Acquired and Disposed Businesses
Today [Thursday, May 21, 2020] the Commission amends its rules governing disclosures public companies must provide when they buy and sell businesses. Unfortunately, today’s rulemaking does not adequately address the risks of reduced transparency for investors with respect to this activity, nor does it properly examine the potential effects on competition, particularly in the present […]
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Posted in Accounting & Disclosure, Legislative & Regulatory Developments, Mergers & Acquisitions, Practitioner Publications, Regulators Materials, Securities Regulation, Speeches & Testimony
Tagged COVID-19, Disclosure, Financial reporting, Mergers & acquisitions, Reporting regulation, SEC, SEC rulemaking, Securities regulation, Transparency
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