Weekly Roundup: April 12-18, 2024


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This roundup contains a collection of the posts published on the Forum during the week of April 12-18, 2024

Creditor rights, collateral reuse, and credit supply


Key Considerations for the 2024 Annual Reporting and Proxy Season: Proxy Statements


Proxy Preview 2024


Comparing the SEC Climate Rules to California, EU and ISSB Disclosure Frameworks



HLS Corporate Faculty Excels in SSRN’s 2023 Citation Rankings


Cybersecurity, audit, and the board: How does board oversight impact cybersecurity performance?


Dissecting the Long-Term Performance of the Chinese Stock Market


What Do Shareholders Propose?


Annual Incentive Plans – Payouts and Performance Alignment


Sticky Charters? The Surprisingly Tepid Embrace of Officer-Protecting Waivers in Delaware


Pass-Through Voting: Giving Individual Investors a Voice in Corporate Governance


Decoding the SEC’s First “AI-Washing” Enforcement Actions


Majority Rules


An Early Look at CEO Pay Trends From Proxy Season 2024


An Early Look at CEO Pay Trends From Proxy Season 2024

Joyce Chen is Associate Editor and Courtney Yu is Director of Research at Equilar, Inc. This post was prepared for the Forum by Ms. Chen and Mr. Yu.

The 2024 proxy season is in full swing, as public companies are in the process of submitting their proxy statements (DEF14A) to the Securities and Exchange Commission (SEC) ahead of annual shareholder meetings. The proxy statement features detailed information on pressing matters related to executive compensation and corporate governance. This analysis focuses on 2024 proxy statements submitted by 163 Equilar 500 companies (the 500 largest U.S. public companies based on revenue) through March 15, 2024 and offers early trends in executive compensation and Pay Versus Performance (PvP) disclosures.

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Majority Rules

Andrew Verstein is a Professor of Law at UCLA School of Law. This post is based on his article forthcoming in the Northwestern University Law Review.

The “disinterested and independent board majority” is one of the most important concepts in corporate law, because it is the fulcrum on which most corporate litigation turns. Where such a majority is present, it is virtually impossible for plaintiff-shareholders to win a lawsuit.

In keeping with its importance, disinterestedness and independence receive ample judicial attention.[1] Scholars likewise ask hard questions about disinterestedness and independence. Can a director be truly impartial when evaluating a merger proposed by the shareholder who appointed her to the board? Can a director fairly decide whether to sue the CEO alongside whom he has worked for years and shares numerous social ties?

Yet something is missing from both the cases and commentary: a majority independence test is a majority independence test.

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Decoding the SEC’s First “AI-Washing” Enforcement Actions

Amy Jane Longo is a Partner, Shannon Capone Kirk is Managing Principal & Global Head of Advanced E-Discovery and A.I. Strategy, and Isaac Sommers is an Associate at Ropes & Gray LLP. This post is based on their Ropes & Gray memorandum.

Two recent SEC enforcement actions offer a first look at how the agency is approaching the use of artificial intelligence (“AI”) tools by registered firms. Against the backdrop of its pending proposed rules regarding predictive data analytics (“PDA”) and artificial intelligence, the SEC on March 18, 2024 announced settled charges against two investment advisers—Delphia (USA) Inc. (“Delphia”) and Global Predictions, Inc. (“Global Predictions”)—involving allegations that the firms’ promotional materials exaggerated their use of AI or machine learning in their investment services, a practice the SEC has described as “AI-washing.” Finding violations of the Investment Advisers Act rules governing marketing and compliance policies and procedures (Sections 206(2) and 206(4) and Rules 206(4)-1 and 206(4)-7 thereunder), the settled orders imposed civil penalties against Delphia and Global Predictions of $225,000 and $175,000, respectively.

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Pass-Through Voting: Giving Individual Investors a Voice in Corporate Governance

Danielle Gurrieri is Vice President Head of Product Management-Bank, Broker Dealer and Chuck Callan is SVP of Regulatory Affairs at Broadridge. This post is based on their Broadridge memorandum.

This proxy season, some of the world’s biggest fund managers are launching or expanding pass-through voting programs to give their fund investors a say on how shares of portfolio companies are voted.  Firms such as BlackRock, Vanguard and State Street Global Advisors are reaching out to their fund shareholders and providing them with multiple options for casting votes.

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Sticky Charters? The Surprisingly Tepid Embrace of Officer-Protecting Waivers in Delaware

Jens Frankenreiter is an Associate Professor of Law at Washington University in St. Louis, and Eric Talley is Isidor and Seville Sulzbacher Professor of Law at Columbia Law School. This post is based on their working paper.

In corporate law circles, contractarianism is all the rage. Yet again. This now-familiar account of corporate law traces back at least as far back as the 1980s, casting its lot with the idea that “the firm” is best understood as nexus of interconnected contracts. Under this accounting, corporate law’s essential remit is to act as an enabling platform, providing a series default governance rules that countenance (and even invite) additional tailoring by participants. Beyond a few “off-limits” exceptions, parties to the corporate contract have tremendous freedom to allocate cash flow and control rights in ways that will (theoretically) maximize the surplus available.

The contractarian account of corporate law has always had its critics, many of whom argue that corporate structures are sufficiently complex and rife with externalities that a strong commitment to contractarianism is destined to collapse on itself, possibly sowing the seeds of wealth and income inequality in the process. Yet wherever one lands on the merits of contractarianism as legal policy, it has proven to be an exceedingly powerful academic rallying cry. If deviations from corporate law’s default rules are adequately disclosed and executed in the appropriate document, the argument goes, sophisticated investors can adjust their willingness to pay accordingly, and a self-interested corporate designer will have the incentives to design rules that attract (or at least don’t scare away) investment capital. Contractarianism’s allure, moreover, is not simply confined to academic audiences. Legislators and judges have embraced it as well (if somewhat more belatedly), and arguments like those described above have impelled an expansion of corporate contractarianism, toppling in the process several heretofore “off limits” shibboleths that the law has traditionally safeguarded.

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Annual Incentive Plans – Payouts and Performance Alignment

Melissa Burek is a Founding Partner and Michael Bonner is a Principal at Compensation Advisory Partners. This post is based on their CAP memorandum.

CAP analyzed annual incentive plan payouts over the past ten years of 120 large U.S. public companies, with a median revenue of $43B. We selected these companies to span ten major industries and provide a broad representation of market practice. This study is a continuation of studies that we conducted in 2017 and 2020.

Annual incentive plans are an essential tool for companies to incent and reward executives for achieving short-term financial and strategic goals. The goal-setting process has always challenged management teams and committees to achieve a balance between rigor and attainability to motivate executives.

In recent years, economic volatility has placed even more pressure on committees to set appropriate goals. This research is intended to be a guide and a reference point to help evaluate whether goal-setting has led to the right outcomes.

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What Do Shareholders Propose?

Ali Saribas is a Partner, and Carmen Ng is a Director at SquareWell Partners. This post is based on their SquareWell memorandum.

i. Introduction

SquareWell published the inaugural edition of “What do Shareholders Propose“, a comprehensive review of all shareholder proposals related to environmental, social, and governance (“ESG”) topics in Europe and the United States for 2022 and 2023, including the “Anti-ESG” movement. The full paper can be downloaded from here.

Broadly speaking, shareholder proposals can either focus on “values” or “value.” However, the distinction between the two has become increasingly blurred over the years. The study aims to understand the transatlantic differences in proposals filed and voted on by shareholders on topics related to their values on “ESG” issues at the AGMs of S&P 500 and STOXX Europe 600 companies.

In 2023, a record 490 “Pro-ESG” shareholder proposals were filed across the S&P 500 and STOXX Europe 600 indices, marking an 8 percent year-on-year increase. However, the adoption rate for such proposals at S&P 500 companies halved to 5.4 percent compared to 2022. Additionally, no “Pro-ESG” proposals passed at STOXX Europe 600 companies in 2023.

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Dissecting the Long-Term Performance of the Chinese Stock Market

Jun Qian (QJ) is Professor of Finance and Executive Dean at the Fanhai International School of Finance (FISF), Fudan University. This post is based on a forthcoming article in the Journal of Finance by Franklin Allen, Professor Qian, Chenyu Shan, and Julie Lei Zhu.

The Chinese stock market started in 1990 with the establishment of two domestic stock exchanges (the “A share” market): the Shanghai Stock Exchange (SSE hereafter) and the Shenzhen Stock Exchange (SZSE). The number of listed firms has been growing since then, with more than 5,000 firms now listed in the two exchanges and the newly established Beijing Stock Exchange. The A share market is the second largest in the world in terms of total market capitalization, trailing only the US equity markets. Due to stringent listing requirements in the domestic market, among other reasons, a large number of Chinese firms are listed externally, mostly in the Hong Kong exchange (HKEX), which follows regulations similar to those in the US and is open to global investors. The second most popular external IPO destination for Chinese firms is the US.

During the period of 2000-2018, the Chinese economy grew by a factor of 4.8 in real terms, much faster than the rest of the large economies, including India, Brazil, Japan and the US. Firm-level, cross-country regressions indicate that A share firms underperform a large set of listed firms from both developed and developing countries by 15.0% per year, while externally listed Chinese firms’ performance is on par or better than the same set of listed firms from other countries. In terms of cumulative, ‘buy and hold’ returns, the performance of the A share market is the worst among the group of large countries (see Figure 1). The cumulative returns of the A share market are lower than those of five-year bank deposits or three- and five-year government bonds in China, and investors in the domestic stock market earned essentially zero net return in real terms.

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Cybersecurity, audit, and the board: How does board oversight impact cybersecurity performance?

Edna Twumwaa Frimpong is Director of International Research and Dottie Schindlinger is Executive Director at Diligent Institute; and Derek Vadala is Chief Risk Officer at Bitsight. This post is based on a recent report by Ms. Frimpong, Ms. Schindlinger, Mr. Vadala, Kira Ciccarelli, Jacob Olcott, and Jeff Barnett.

Introduction

The rapid escalation in the frequency and severity of cyber incidents has positioned cyber risk as one of the foremost challenges confronting boards.[1] With cyber threats becoming increasingly sophisticated and pervasive, boards are under mounting pressure to effectively address cybersecurity risks to safeguard their organizations’ interests. With projected financial losses from data breaches estimated to reach approximately USD 10.5 trillion by 2025, and new pressure from regulators like the SEC, the oversight role of the board becomes even more crucial.[2]

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