Author Archives: Harvard Law School Forum on Corporate Governance and Financial Regulation

Important Earnout/Milestone Drafting Points Arising from Recent Pacira and Shire Decisions

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Tuesday, November 30, 2021

Earnout or milestone provisions in a merger agreement provide a framework for additional merger consideration to be paid, after the closing, if specified “milestone” events occur or specified performance targets are achieved post-closing. (We use the terms “earnout” and “milestones” interchangeably in this post.) According to recent studies, earnouts are used in over 60% of […]

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ISS Releases Proposed Benchmark Policy Changes for 2022

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Tuesday, November 30, 2021

[On November 4, 2021], ISS released for public comment its proposed benchmark policy changes for 2022. If adopted, the proposed policy changes would apply to shareholder meetings held on or after February 1, 2022. The proposed changes for U.S. companies relate to board diversity, board accountability for unequal voting rights, board accountability for climate disclosure […]

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Recent Shareholder Activism Trends

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, November 29, 2021

After years of growth in shareholder activist activity, the onset of COVID-19 across the world caused a decline in shareholder activism campaigns in the spring and summer of 2020. Economic recovery in the second half of the year coincided with the end-of-year proxy season and gave rise to a renewed appetite for activist campaigns in […]

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Death by Committee? An Analysis of Corporate Board (Sub-) Committees

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, November 29, 2021

There is a long history of governance reforms that target corporate boards by mandating specific committee structures and director-type requirement. The Securities and Exchange Commission and the New York Stock Exchange first advocated for separate audit committees following the McKesson & Robbins scandal of 1938 (Birkett, 1986). In the 1970s, in response to widespread bribery […]

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SEC Staff Issues New Shareholder Proposal Guidance

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, November 29, 2021

On November 3, 2021, the Division of Corporation Finance (Staff) of the U.S. Securities and Exchange Commission (SEC) published Staff Legal Bulletin No. 14L (SLB 14L), which explicitly rescinds Staff Legal Bulletin Nos. 14I, 14J and 14K (SLB 14I, 14J and 14K) (issued in 2017, 2018 and 2019, respectively), and effectively resets the Staff’s approach […]

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Chancery Court Highlights Importance of Delivering Nomination Notices Ahead of Advance Notice Deadlines

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Sunday, November 28, 2021

The Delaware Chancery Court’s decision in Rosenbaum v. CytoDyn Inc., No. 2021-CV-0728-JRS (Del. Ch. Oct. 13, 2021) provides fresh insight into how courts are likely to view advance notice bylaws in the context of a shareholder activist’s nomination of a dissident slate of directors. The case arose following a push by a group of investors […]

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Sustainability and Investing Lessons Learned in the Pandemic Era

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Saturday, November 27, 2021

The coronavirus pandemic has prompted massive changes for countries, societies, people and businesses. Interconnected environmental, social and governance issues have reinforced the role of sustainable investing strategies as an indispensable part of investor allocations for a post-COVID-19 world. When the history of COVID-19 is written, the pandemic period will be seen as more than just […]

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2021 Board Effectiveness: A Survey of the C-Suite

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Friday, November 26, 2021

It’s rare for corporate directors to receive candid feedback from their company’s management teams. The nature of the board of directors’ oversight role makes it an uncomfortable proposition. But the view of the boardroom from the C-suite can be illuminating—and surprising. That is why PwC and The Conference Board asked more than 550 public company […]

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Weekly Roundup: November 19-25, 2021

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Friday, November 26, 2021

Statement by Commissioner Roisman on Proposed Amendments Related to Proxy Voting Advice Posted by Elad L. Roisman, U.S. Securities and Exchange Commission, on Friday, November 19, 2021 Tags: Glass Lewis, Institutional Investors, Institutional Shareholder Services Inc., Proxy advisors, Proxy voting, SEC, SEC rulemaking, Securities regulation, Shareholder voting SEC Dramatically Changes the Rules for Proxy Contests Posted by Kai Liekefett, Derek Zaba, and Beth Berg, Sidley […]

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US Deputy Attorney General Signals Aggressive DOJ Focus on Corporate Crime

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Thursday, November 25, 2021

At an October 28, 2021, speech before the American Bar Association’s Annual National Institute on White Collar Crime, US Deputy Attorney General (Deputy AG) Lisa Monaco re-emphasized the priority placed by current leadership within the US Department of Justice (DOJ) on prosecuting white-collar crime at both the individual and corporate level. Deputy AG Monaco also […]

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