Corporate Governance, Board Oversight & the 2023 Banking Crisis

Sarah Wenger is Senior Analyst, Maria Vu is Senior Director, and Dimitri Zagoroff is Senior Editor at Glass, Lewis & Co. This post is based on their Glass Lewis memorandum.

In the spring of 2023, the United States witnessed the country’s three largest bank failures since the 2008 financial crisis. Market-wide developments such as high interest rates and regulation rollbacks, along with company-specific factors including overly concentrated clientele and reliance on uninsured deposits, affected leadership’s ability to effectively manage interest rate and liquidity risks, leading to mass deposit flight and ultimately the collapse of Silicon Valley Bank (SVB), followed by Signature Bank (Signature) and First Republic Bank (First Republic).

The impact of macro-economic and strategic issues has been widely discussed. However, the banks’ inability to appropriately align strategy with the macro environment indicates that insufficient risk oversight was also a significant factor. This, in turn, suggests that stronger corporate governance structures could potentially have assuaged or prevented the outcomes of these events.

In this post we examine risk oversight and board composition gaps at SVB, and compensation practices at all three banks, in discussing how the prominent failures of these three mid-sized financial institutions emphasize the importance and impact of corporate governance practices and disclosures.

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The Distinction Between Direct and Derivative Shareholder Claims

Jim An is a Teaching Fellow and Lecturer in Law at Stanford Law School. This post is based on his recent article forthcoming in the George Washington Law Review.

One of the first legal questions that courts ask when reviewing a shareholder suit is whether the pleaded claims are “direct” or “derivative.” However, although the distinction between direct and derivative claims is often outcome-determinative, the specific legal rules governing that distinction have long been flawed, with courts and commentators calling those rules “subjective,” “opaque,” and “muddled.”

Furthermore, as I argue in a forthcoming article, The Distinction Between Direct and Derivative Shareholder Claims, the predominant legal tests for distinguishing between direct and derivative claims are internally inconsistent, logically indeterminate, and readily manipulable. That said, an improved test is possible by clearly articulating the underlying policy concerns that motivate existing doctrine.

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The 2024 Audit Committee agenda and the questions investors should be asking

Sophie Gauthier-Beaudoin is Head of Investor Engagement and Tim Copnell is Chair of the Audit Committee Institute at KPMG in the UK. This post is based on their KPMG memorandum.

The business and risk environment has changed dramatically over the past year, with greater geopolitical instability, surging inflation, high interest rates, and unprecedented levels of disruption and uncertainty. Audit committees can expect their company’s financial reporting, compliance, risk, and internal control environment to be put to the test by an array of challenges – from global economic volatility and the wars in Ukraine and the Middle East to cybersecurity risks and ransomware attacks and preparations for climate and sustainability reporting requirements, which will require developing related internal controls and disclosure controls and procedures. This is compounded by uncertainty in the UK regulatory landscape and in particular the extent to which internal control frameworks will need to be strengthened, evidenced, and assured as a result of the on-going UK governance and audit reforms.

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The CEO Pay Problem Is Solvable with A.I.

Joel Paula is a Research Director at FCLTGlobal. This post is based on his FCLTGlobal memorandum.

Proxy advisors are coming under pressure with accusations that their decision making is opaque, or pushing an “ESG” agenda. There’s no doubt that through their recommendations, they are hugely influential in voting outcomes. In an environment of increased scrutiny, backing voting recommendations with better data and evidence seems like a sound idea. Better yet, the proxy advisors could empower investors with better data, building a stronger case for voting decisions. Why not turn to technology solutions?

Artificial intelligence has already changed the way data is compiled and processed on a mass scale – and in particular in the investment industry, reshaping how professionals make decisions, manage portfolios, and analyze market data. A prominent challenge facing the industry today is the design of executive pay – specifically, structuring it in ways that incentivize strong performance over many years rather than just over a few fiscal quarters.

Proxy advisors’ analysis of executive pay packages for “say-on-pay” voting (the process where shareholders vote to approve or disapprove the compensation packages of a company’s top executives) considers factors like pay-for-performance alignment, the fairness of the package relative to peers, the structure of the compensation (e.g., short-term vs. long-term incentives), among others. The process is data intensive and can be laborious and time consuming.

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Seven Questions about Proxy Advisors

David F. Larcker is the James Irvin Miller Professor of Accounting, Emeritus; and Brian Tayan is a Researcher with the Corporate Governance Research Initiative at Stanford Graduate School of Business. This post is based on their recent paper.

We recently published a paper on SSRN (“Seven Questions about Proxy Advisors”) that examines the role and function of proxy advisors.

The proxy advisory industry—in which independent third-party firms provide voting recommendations to institutional investors for matters on the annual proxy—has grown in size and controversy. Despite a large number of smaller players, the proxy advisory industry is essentially a duopoly with Institutional Shareholder Services (ISS) and Glass Lewis controlling almost the entire market.

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Delaware Supreme Court Holds MFW Inapplicable Based on Banker Conflict Disclosure Deficiencies

Gregory V. GoodingMaeve O’Connor, and William D. Regner are Partners at Debevoise & Plimpton LLP. This post is based on a Debevoise memorandum by Mr. Gooding, Ms. O’Connor, Mr. Regner, Andrew L. Bab, Matthew E. Kaplan, and Jonathan E. Levitsky, and is part of the Delaware law series; links to other posts in the series are available here.

The Delaware Supreme Court has reversed a Court of Chancery decision dismissing challenges to the acquisition of Inovalon Holdings, Inc. by a consortium led by Swedish private equity firm Nordic Capital[1] in a decision demonstrating the importance of disclosure of financial advisor conflicts in order to obtain the benefit of business judgment rule review under Kahn v. M&F Worldwide Corp. – the MFW decision. The Supreme Court held that the majority-of-the-minority stockholder vote approving the transaction was not fully informed, based on inadequate disclosure of conflicts of interest on the part of financial advisors to the special committee of Inovalon’s board.

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Insider Trading and Off-Channel Communications in the Age of Remote and Hybrid Work Environments

Phara Guberman and Kenneth Breen are Partners and Kaitlyn O’Malley is an Associate at Cadwalader, Wickersham & Taft LLP. This post is based on their Cadwalader memorandum.

Though many, if not most, of the measures implemented to address the COVID pandemic have since been rolled back, the transition from fully in-person to remote and hybrid work environments appears to be here to stay. While these arrangements provide employees with additional convenience and flexibility, they also come with risks for companies that are subject to the recordkeeping provisions of federal securities laws and whose employees encounter material nonpublic information (“MNPI”) in the course of their work. Over the past few years, the U.S. Securities and Exchange Commission (“SEC”) has been increasingly aggressive in bringing charges for violations of federal securities laws resulting, at least in part, from the risks associated with remote work environments.

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Investment Advisers and Sponsors Compliance Policies: Hot Topics

Meaghan Kelly, David Blass, and Michael Osnato are Partners at Simpson Thacher & Bartlett LLP. This post is based on their Simpson Thacher memorandum.

With Form ADV season in the rear view mirror, we recommend that sponsors turn to refreshing their compliance policies to align with rapidly evolving regulatory expectations. To that end, we provide a non-exhaustive list of hot topics to consider below, including with context from SEC examinations and SEC enforcement settlements.

  • Amended Marketing Rule: Sponsors should ensure their policies and procedures are updated to reflect the amended Marketing Rule, including as interpreted by the staff’s FAQs. The compliance deadline was November 4, 2022, and both the Division of Examinations and the Division of Enforcement have been testing compliance and aggressively investigating perceived inadequacies. READ MORE »

Fee Variation in Private Equity

Juliane Begenau is an Associate Professor of Finance at Stanford Graduate School of Business, and Emil Siriwardane is an Associate Professor of Business Administration at Harvard Business School. This post is based on their recent article forthcoming in the Journal of Finance.

The private capital industry has experienced a meteoric rise over the past two decades, with estimates of capital invested in vehicles like private equity and venture capital now exceeding $10 trillion. With this growth, there has been a corresponding increase in calls for greater transparency around the fees and operational structures of private market funds, especially given the amount of capital inflows from public defined-benefit pensions around the globe. Private capital funds, like private equity, are typically governed by complex limited partnership agreements (LPAs). LPAs, which are rarely observable to fund outsiders, are often further modified by so-called side letter agreements. This contracting environment makes it difficult to answer basic questions about costs in this industry, like for instance whether fees are set uniformly within funds or if some investors (LPs) consistently pay lower fees.

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Weekly Roundup: May 3-9, 2024


More from:

This roundup contains a collection of the posts published on the Forum during the week of May 3-9, 2024

Defenseless companies invite activism


Evolving lines of responsibility between the board and the management


DOJ Pilot Program on Voluntary Self-Disclosures for Individuals


Innovation: The Bright Side of Common Ownership?


Next-Gen Governance: AI’s Role in Shareholder Proposals


M&A Developments: Hedge Fund Activism



The Shareholder Franchise, Transformative Investor Changes, and Motivational Misalignments


Stakeholder Governance and the Eclipse of Shareholder Primacy


Delaware’s Status as the Favored Corporate Home: Reflections and Considerations


The Missing “T” in ESG


Primer on Corporate Political Spending for Incoming Directors


Activism Vulnerability Report


The effect of female leadership on contracting from Capitol Hill to Main Street


Exempt solicitation urging BlackRock shareholders to vote against the election of Saudi Aramco CEO


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