Happy Earth Day!

Climate Action 100+ reports that, last year, there were 22 climate-related weather disasters in the U.S. that “each caused more than $1 billion in damages—far and away a record. To investors, climate change poses not only physical risks of damage to assets, supply chains and infrastructure but also transitional risk if portfolio companies do not adjust rapidly enough as the economy decarbonizes and systemic risk posed to the entire economy.” According to environmental nonprofit Ceres, as of April 21, 408 businesses and investors “with a footprint” in the U.S. have signed an open letter to the President indicating their support for the administration’s commitment to climate action and for setting a new climate target to reduce emissions. The signatories collectively represent over $4 trillion in annual revenue, over $1 trillion in assets under management and employ over 7 million U.S. workers across all 50 states. The letter states that to “restore the standing of the U.S. as a global leader, we need to address the climate crisis at the pace and scale it demands. Specifically, the U.S. must adopt an emissions reduction target that will place the country on a credible pathway to reach net-zero emissions by 2050. We, therefore, call on you to adopt the ambitious and attainable target of cutting GHG emissions by at least 50% below 2005 levels by 2030.” As reported by the NYT and others, the President announced today that the U.S. is setting a new climate target with a goal of reducing U.S. emissions by 50% to 52% below 2005 levels by 2030.  The target “calls for a steep and rapid decline of fossil fuel use in virtually every sector of the American economy and marks the start of what is sure to be a bitter partisan fight over achieving it.”

Can SEC Commissioner Hester Peirce avert adoption of ESG metrics?

It’s widely anticipated that we’ll soon be seeing more action from the SEC on sustainability disclosure, including possibly a prescriptive ESG framework that draws on some global metrics.  (See, e.g., this PubCo post and this PubCo post.) Trying to head those prescriptive ESG metrics off at the pass is Commissioner Hester Peirce—yes, she who once described “ESG” as standing for “enabling shareholder graft”—in her statement, Rethinking Global ESG Metrics. With Gary Gensler now sworn in as SEC Chair, the revised composition of the SEC does not bode well for Peirce’s mission. Peirce concludes her statement with the admonition, “[l]et us rethink the path we are taking before it is too late.”  But has the train already left that station? 

Does gender diversity in the C-suite change the way management thinks?

There’s been a lot written about the benefits of board gender diversity, but this article from the Harvard Business Review, Adding Women to the C-Suite Changes How Companies Think, reports on a study by three academics of the impact of adding women to the C-Suite—not just whether the businesses performed better, but why they performed better. In other words, “[w]hat are the specific mechanisms that drive the positive business outcomes associated with increasing the number of women in the C-suite?” According to the authors, much past research has revealed that companies with more women executives “are more profitable, more socially responsible, and provide safer, higher-quality customer experiences.” But why is that the case? To find out, the authors looked at a narrower question of how the addition of women to top management teams changes companies’ “strategic approach to innovation”?  The authors conclude that the addition of women executives to the management team brought more than “new perspectives”—they “actually shift how the C-suite thinks about innovation, ultimately enabling these firms to consider a wider variety of strategies for creating value.”

Has universal proxy been resuscitated?

In remarks in March to the Center for American Progress, Acting SEC Chair Allison Lee said that she had asked the staff to consider whether the SEC should “re-open the comment file on the 2016 universal proxy rule proposal to take into account market developments since then and move towards finalization.”  Under that proposal, in a contested election, universal proxy cards identifying all the candidates for director on both slates would be required, more closely replicating in-person voting. In Lee’s view, the proposal would be “a common-sense step forward in modernizing our proxy rules and protecting shareholder rights. The proposal has been outstanding for far too long and should be finalized.” (See this PubCo post.) On Friday, the SEC announced that it had voted to reopen the comment period for the universal proxy proposal for 30 days following publication of the reopening release in the Federal Register. According to Corp Fin Acting Director John Coates, “[r]eopening the comment period will allow the public to share additional views on the use of universal proxy cards in director elections, particularly in light of the corporate governance developments that have occurred since the Commission issued its proposal.”

Gensler sworn in

Gary Gensler was sworn in today, Saturday, as a member of the SEC.  He was confirmed by the Senate to be the Chair of the SEC on April 14, 2021. According to the SEC’s press release, Gensler said: “I feel incredibly privileged to join the SEC’s team of remarkable public servants….As Chair, every day I will be animated by our mission: protecting investors, facilitating capital formation, and promoting fair, orderly, and efficient markets. It is that mission that has helped make American capital markets the most robust in the world.”

Gensler confirmed as SEC Chair

Today, the Senate, by a vote of 53 to 45, confirmed Gary Gensler as SEC Chair—for a little while anyway.  Presumably, he will be sworn in in the next several days. The current SEC Commissioners offered their congratulations here.  The pivot from the approach taken by former SEC Chair Jay Clayton on issues such as adoption of standardized mandatory climate disclosure and other ESG disclosure issues could be head-spinning, so stay tuned.

What’s ahead for this proxy season?

Alliance Advisors, a proxy solicitation and corporate advisory firm, has just posted its 2021 Proxy Season Preview, a useful introduction into the major themes of this season—well worth a read.  First, and most obviously, there is COVID-19 and its direct and indirect impact. The pandemic is having a significant direct impact this year—not just in necessitating recourse to virtual-only annual meetings again this season—but also in focusing the attention of investors and proxy advisors on “how well corporate leaders navigated the crisis and protected business operations, liquidity and the health and welfare of employees.”  But the pandemic has also had a somewhat surprising broader indirect impact.  While it was widely anticipated that the challenges of COVID-19 would overwhelm any other concerns, the impact appears to be otherwise, as the pandemic has highlighted our increasingly precarious condition, including the effects of climate change, and intensified our social and economic inequality—all issues that are front and center this season.  The Preview predicts that environmental and social proposals “are likely to see stronger levels of support in view of last year’s record 21 majority votes… and more assertive investor policies on diversity, climate change and political spending.”

Staff posts guidance on accounting for warrants issued in SPAC transactions

Warrants are frequently issued in connection with the formation and initial registered offerings of SPACs, but apparently there have been some problems with accounting for some of these warrants, or at least, so it appears from this Staff Statement on Accounting and Reporting Considerations for Warrants Issued by Special Purpose Acquisition Companies (“SPACs”) from Acting Corp Fin Director John Coates and Acting Chief Accountant Paul Munter.  The Statement is intended to “highlight the potential accounting implications of certain terms that may be common in warrants included in SPAC transactions” and to discuss what needs to be done if this Statement leads a company and its auditors to determine there is an error in any previously filed financial statements.  The primary issue identified in the Statement is whether these warrants should be classified as equity or liability, which depends largely on the specific terms of the warrant and the entity’s specific facts and circumstances. If warrants are classified as a liability, according to the Statement, they should be “measured at fair value, with changes in fair value reported each period in earnings.”

Corp Fin staff updates guidance regarding presentation of shareholder proposals in light of COVID-19

On Friday, the Corp Fin staff announced that it has updated its Guidance for Conducting Shareholder Meetings in Light of COVID-19 Concerns originally published on March 13, 2020 and updated on April 7, 2020 (see this PubCo post and this PubCo post). The updated guidance posted on Friday tweaks the advice related to presentation of shareholder proposals, extending its application to the 2021 proxy season.

Acting Corp Fin Director Coates speaks on SPACs

As has been widely reported, there has been a phenomenal increase in the volume of SPAC transactions as an alternative approach to becoming a public company. According to Bloomberg, around “300 SPACs launched on U.S. exchanges in the first quarter, raising almost $100 billion. That total was more than all of last year.”  In this statement, Corp Fin Acting Director John Coates discusses liability risks potentially arising out of SPAC and de-SPAC transactions, that is, the transactions in which a private operating company undertakes a business combination with a SPAC, ultimately becoming a public operating company. The essence of his message is: why should a SPAC be treated differently from a traditional IPO?