Category: Corporate Governance
Low board turnover? Less opportunity for board diversity
Is board stability always a good thing? A new study from consultant Spencer Stuart showed that, in 2018, 428 new directors were elected to boards of companies in the S&P 500, the most new directors since 2004, representing an increase of 8% from 2017. What’s more, 57% of boards added at least one new director, and 22% appointed more than one new director. However, overall turnover remained “modest.” While these new directors added “fresh skills, qualifications and perspectives”—and many were women, minorities and/or first-time directors—nevertheless, the study concludes, “progress is mixed.”
NYSE proposes change to conform to new SEC definition of smaller reporting company
The NYSE has proposed a change to Section 303A.00 of the Listed Company Manual related to the exemption from the compensation committee requirements applicable to smaller reporting companies. (See this Cooley Alert.) The amendment is intended to conform the Section to the new SEC rules related to SRCs.
It’s election day, and CEOs consider the role of business in society
It’s election day. Don’t forget to vote!
And given that it’s election day, it’s a good time to step back and consider the big picture. To that end, you might want to take a look at this DealBook column, which discusses CEOs’ perspectives on the role of business in politics and the impact of technology on society—all in one column no less.
CAQ releases 2018 audit committee transparency barometer
The Center for Audit Quality, working with Audit Analytics, has just released a new edition of its annual Audit Committee Transparency Barometer, which, over the past five years, has measured the robustness of audit committee disclosures in proxy statements among companies in the S&P Composite 1500. The bottom line, according to the CAQ, is that the level of voluntary transparency has continued to steadily increase in most areas. The report includes several useful examples of the types of disclosure discussed.
EY offers new analysis of cybersecurity disclosures
In this report, EY discusses an analysis it conducted of voluntary cybersecurity-related disclosures in the 10-Ks and proxy statements of Fortune 100 companies (79 companies that had filed as of September 1, 2018). The analysis notes that, not only are regulators focused on cybersecurity risk management and disclosure, but investors consider cybersecurity risk management as critical to the board’s risk oversight responsibilities and boards are increasingly engaged on the topic. The analysis found a wide variation in the depth and nature of the disclosures.
Glass Lewis posts 2019 proxy and shareholder initiative guidelines
Proxy advisor Glass Lewis has posted its 2019 Proxy Guidelines and 2019 Guidelines Regarding Shareholder Initiatives. One of the more striking points is that GL indicates that it may, albeit in limited circumstances, recommend against the members of the nominating/governance committee simply for successfully requesting no-action relief from the SEC to exclude (and presumably excluding) a shareholder proposal, where GL views the exclusion to have been detrimental to shareholders. GL’s new guidance includes the following updates:
CII petitions NYSE and Nasdaq regarding multi-class share structures
The Council of Institutional Investors has announced that it has filed petitions with the NYSE and Nasdaq requesting that each exchange amend its listing standards to address the issue of multi-class capital structures (i.e., share structures that have unequal voting rights for different classes of common stock). As requested by the petition, the amendment would require that, going forward, companies seeking to list with multi-class share structures include provisions in their governing documents that would sunset the unequal voting at seven years following an IPO and return the structure to “one-share, one-vote” structures, “subject to extension by additional terms of no more than seven years each, by vote of a majority of outstanding shares of each share class, voting separately, on a one-share, one-vote basis.” According to CII, unequal voting rights impair the ability of shareholders “to hold executives and directors accountable.” But companies contend that these measures are being adopted for a valid reason: to protect the company from unwanted interventions by hedge-fund activists with short-term goals and perspectives. Accordingly, the debate has centered around whether these measures are a legitimate effort to protect companies from the pressures of short-termism exerted by hedge-fund activists and others or are a mechanism that causes shareholders to cede power without providing accountability. Of course, the answer depends on where you sit.
CEO group issues commonsense corporate governance principles, version 2.0
A couple of years ago, a group of CEOs of major public companies and institutional investors, including Jamie Dimon, Warren Buffett, Larry Fink and Mary Barra, among others, developed a list of “commonsense corporate governance principles,” designed to generate a constructive dialogue about corporate governance at public companies. As discussed in a new open letter, the group believes that its principles—along with other sets of principles developed by the Investor Stewardship Group, the Business Roundtable and the World Economic Forum—have become “part of a larger dialogue about the responsibilities and need for constructive engagement of those companies, their boards and their investors.” The group views the discussion as particularly important in light of the “precipitous decline” in the number of public companies, which the group attributes, in large part, to the short-termism of public market participants. In that regard, in its letter, the group endorsed the principles developed by these other groups “as counterweights to unhealthy short-termism,” and revisited its own principles in a new updated Version 2.0. According to the press release, the signatories to Version 2.0 (including a number of well-known new signatories) have committed to apply the principles in their own businesses and call on others to join their ranks.
SEC issues Section 21(a) investigative report regarding the implications of cyberscams for internal controls
Today, the SEC issued an investigative report under Section 21(a) that advises public companies subject to the internal accounting controls requirements of Exchange Act Section 13(b)(2)(B) of the need to consider cyber threats when implementing internal accounting controls. The report investigated whether a number of defrauded public companies “may have violated the federal securities laws by failing to have a sufficient system of internal accounting controls.” Although the SEC decided not to take any enforcement action against the nine companies investigated, the SEC determined to issue the report “to make issuers and other market participants aware that these cyber-related threats of spoofed or manipulated electronic communications exist and should be considered when devising and maintaining a system of internal accounting controls as required by the federal securities laws. Having sufficient internal accounting controls plays an important role in an issuer’s risk management approach to external cyber-related threats, and, ultimately, in the protection of investors.”
The battle over proxy advisory firms continues
As discussed in this PubCo post and this PubCo post, the role of proxy advisory firms has once again risen to the forefront as a sizzling corporate governance topic, just in time for the SEC Proxy Roundtable on November 15. In advance of the event, interested parties are marshalling their arguments and beginning to present their cases.
You must be logged in to post a comment.