Statement by Chair Gensler on Amendments to Regulation S-P

Gary Gensler is Chair of the U.S. Securities and Exchange Commission. This post is based on his recent statement. The views expressed in this post are those of Chair Gensler, and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Today, the Commission is considering amendments to Regulation S-P that will require covered firms to notify their customers of data breaches. I support these amendments because, through making critical updates to a rule first adopted in 2000, these amendments will help protect the privacy of customers’ financial data.

In 1999, Congress passed a provision to help ensure that financial firms protect customers’ nonpublic personal information. As a member of the U.S. Department of Treasury team at the time, I was proud to work with then-Congressman Ed Markey on this important legislation. The provision mandated that federal financial regulators adopt rules to advance consumers’ privacy. The SEC did so in 2000, through Regulation S-P, which requires covered firms to notify customers about how they use their nonpublic personal information.

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Weekly Roundup: May 10-16, 2024


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This roundup contains a collection of the posts published on the Forum during the week of May 10-16, 2024

Fee Variation in Private Equity


Investment Advisers and Sponsors Compliance Policies: Hot Topics


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


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


Seven Questions about Proxy Advisors


The CEO Pay Problem Is Solvable with A.I.




Corporate Governance, Board Oversight & the 2023 Banking Crisis


The Payoffs and Pitfalls of ESG Due Diligence


The Lost Promise of Private Ordering


Mapping TCFD to the IFRS S2 on Climate Disclosure


ACGA Open Letter: Strategic Shareholdings in Corporate Japan


The Governance of Corporate Use of Artificial Intelligence


Four ways boards can support the effective use of AI


Four ways boards can support the effective use of AI

Kris Pederson is Center for Board Matters Leader, Barton Edgerton is Center for Board Matters Corporate Governance Research Leader, and Cigdem Oktem is Center for Board Matters Leader at EY Americas. This post is based on a EY memorandum by Ms. Pederson, Mr. Barton, Ms. Oktem, Bill Hobbs, Michael Kanazawa, and Jeffrey Saviano.

Nearly every CEO (95%) in a recent EY survey said that they plan to maintain or accelerate transformation initiatives, including artificial intelligence (AI) and other technologies, in 2024. Meanwhile, institutional investors see responsible AI as an emerging engagement priority, and it’s no surprise that directors rank innovation and evolving technologies as a top priority in 2024.

To better understand how boards are addressing AI challenges and opportunities, we spoke with directors representing more than 50 companies. During these formal and informal discussions, we asked how they were navigating the near‑frenetic pace of developments in AI and cutting through the noise to help their companies strategically use AI and better understand the related risks. What we learned is that many boards are already taking important steps. Following are four ways that boards can provide effective oversight and governance as companies embrace AI to create operating efficiencies and support growth to gain strategic advantage.

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The Governance of Corporate Use of Artificial Intelligence

Leo E. Strine, Jr. is the Michael L. Wachter Distinguished Fellow at the University of Pennsylvania Carey Law School; Senior Fellow, Harvard Program on Corporate Governance; Of Counsel, Wachtell, Lipton, Rosen & Katz; and former Chief Justice and Chancellor, the State of Delaware. This post is based on his recent article, forthcoming in the Journal of Corporation Law.

Artificial intelligence, or “AI,” is evolving fast and becoming embedded in the operations of many for-profit corporations.  As with any novel, transformative technology, AI can tempt us to lose sight of the fact that large corporations have deployed society-changing innovations in the past, and to ignore hard-earned lessons of that experience that might help us better ensure that AI improves human life and does not create harm.

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ACGA Open Letter: Strategic Shareholdings in Corporate Japan

Amar Gill is a Secretary General at Asian Corporate Governance Association and Kei Okamura is a Portfolio Manager at Neuberger Berman and ACGA Japan Working Group Chair. This post is based on an open letter by the Asian Corporate Governance Association (ACGA), prepared by Mr. Gill and Mr. Okamura, with support from Jane Moir.

The Asian Corporate Governance Association (ACGA) recently formed a working group of members and other interested investors to discuss the issue of Japanese companies’ so-called “strategic shareholdings” that include allegiant and cross-shareholdings. We are writing to share our thoughts and suggestions on this topic.

In recent years, Japanese companies have embarked on a number of landmark reforms to improve corporate value over the medium to long term, which global investors attribute as one of the key catalysts driving the Japanese stock market’s strong performance of late. Sound resource allocation by corporates is key to the revival of the Japanese economy and is expected to benefit all stakeholders including employees, customers and shareholders. ACGA and its undersigned members thus look forward to constructive discussions around this topic.

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Mapping TCFD to the IFRS S2 on Climate Disclosure

Subodh Mishra is Global Head of Communications at ISS STOXX. This post is based on an ISS-Corporate memorandum by Jacob McKeeman and Erica Chiorazzi.

The inaugural IFRS Sustainability Disclosure Standards were released by the International Sustainability Standards Board (ISSB) in mid-2023, designed to establish a global baseline for corporate disclosures. They are set to be adopted across several jurisdictions in the next few years. The new rules have garnered global support from 64 jurisdictions to date, with 19 national regulators already consulting on adoption of the recommendations under jurisdictional law.

The IFRS S2 Climate-related Disclosures rules are based on the architecture and recommendations of the Task Force on Climate-Related Financial Disclosures (TCFD). TCFD has defined climate reporting globally since the release of its recommendations in 2017. According to ISS data, 78% of companies on the S&P 500, 82% on the STOXX 600 and 98% on the FTSE 100 provide climate disclosures informed by TCFD. As an indication of its success, TCFD has now been disbanded, with the ISSB taking over the responsibility for monitoring the continued progress of climate-related disclosures.

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The Lost Promise of Private Ordering

Jeremy McClane is a Professor of Law at the University of Illinois, Yaron Nili is a Professor of Law at the University of Wisconsin-Madison, and Cathy Hwang is the Barron F. Black Research Professor of Law at the University of Virginia. This post is based on their recent article forthcoming in the Cornell Law Review.

Corporate loan covenants serve many purposes. They can protect lenders’ financial interests by imposing operational and financial constraints on borrowers. They can also protect shareholder interests by constraining management waste and self-dealing, supplementing traditional corporate governance mechanisms. But covenants—both those that impose financial constraints and those that impose operational constraints—are disappearing.

In our recent article, “The Lost Promise of Private Ordering,” we provide an in-depth analysis of the evolving dynamics in the corporate loan market, focusing particularly on the diminishing prevalence of governance-related loan covenants. We document the trend of these “gov-lite” loans—loans that have watered-down or missing corporate governance-related covenants. Gov-lite loans signal significant shifts in the mechanisms of corporate governance and the protective measures for lenders and investors.

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The Payoffs and Pitfalls of ESG Due Diligence

Ferdinand Fromholzer, Dirk Oberbracht, and Jan Schubert are Partners at Gibson, Dunn & Crutcher LLP. This post is based on their Gibson Dunn memorandum.

A recent global survey of dealmakers by BCG and Gibson Dunn reveals a striking consensus: conducting environmental, social, and governance (ESG) due diligence is now indispensable for M&A transactions.

Dealmakers say that the insights gained from these assessments are crucial not only for mitigating risks but also for preserving and enhancing deal value. Although Europe has spearheaded more stringent ESG regulations, dealmakers in all surveyed countries, including those in the US, recognize the importance of performing such assessments before closing a deal. (See the sidebar “About the Survey.”)

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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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