1. Articles from corpgov.law.harvard.edu

  2. 1-24 of 380 1 2 3 4 ... 14 15 16 »
    1. Why Cryptoassets Are Not Securities

      Why Cryptoassets Are Not Securities

      FTX’s collapse reiterates the need for comprehensive U.S. regulation of crypto markets. This regulation must have a solid legal foundation, a key pillar of which is a workable framework to distinguish cryptoassets[1] that are securities from those that are not. A new paper provides this framework, by showing why fungible cryptoassets are not themselves securities under existing U.S. federal securities laws. But also why ICOs and similar token sales should be regulated as securities offerings...

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      Mentions: FTX Cryptoassets
    2. The Flaw in Anti-ESG Logic: Financial Interests of Companies Like Meta Don’t Always Align with Those of Its Shareholders

      The Flaw in Anti-ESG Logic: Financial Interests of Companies Like Meta Don’t Always Align with Those of Its Shareholders

      In the last few months, there has been an organized effort to falsely argue that companies and institutional investors are inappropriately prioritizing social and environmental responsibility over financial returns. The effort includes state treasurers from Texas, West Virginia, and Florida, as well as anti-ESG activist and fund manager Vivek Ramaswamy...

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    3. The Attack on Share Buybacks

      The Attack on Share Buybacks

      Corporate share buybacks are under attack, mainly from the political left (e.g., Senators Bernie Sanders, Chuck Schumer, and Elizabeth Warren and President Joe Biden), but also to some degree from the right (e.g., Senator Marco Rubio).  Critics decry the large sums distributed to shareholders via buybacks because that cash could have been used to fund greater investment and, especially, investment that would make workers better off...

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    4. Linking Executive Compensation to ESG Performance

      Linking Executive Compensation to ESG Performance

      As companies address two fundamental and related shifts—the intensified focus on environmental,
      social & governance (ESG) issues driven by investors, employees, consumers, business partners, ESG rating agencies, and regulators, [1] and the shift to a multistakeholder form of capitalism [2] —corporate boards are not only incorporating nonfinancial matters into discussions of company strategy and business plans, but also increasingly considering ESG performance measures in incentive plans...

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    5. Boardroom Racial Diversity: Evidence from the Black Lives Matter Protests

      Boardroom Racial Diversity: Evidence from the Black Lives Matter Protests

      With increased attention on systemic racism in the aftermath of the killing of George Floyd (on May 25, 2020) and the widespread Black Lives Matter (BLM) protests, growing number of stakeholders recognize racial diversity on corporate boards (or rather lack thereof). After the BLM protests, institutional investors started to demand disclosure of boardroom racial composition and focused on inclusion and equal opportunities policies...

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    6. Bylaw Amendments, Shareholder Activism, and Flying Close to the Sun

      Bylaw Amendments, Shareholder Activism, and Flying Close to the Sun

      A case presently before the Delaware Court of Chancery challenging a corporation’s advance notice bylaw amendments, initiated by activist investor Politan Capital Management LP in October 2022, brings to mind the storied Icarus. In the legend, a master craftsman creates wings of feathers and wax for himself and his son to escape danger. He cautions his son Icarus not to fly too close to the sun, lest the wings melt. Icarus, carried away with this device figuratively and literally, flies too high and tumbles into the sea...

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    7. Boards: Stepping Up as Stewards of Sustainability

      Boards: Stepping Up as Stewards of Sustainability

      On the one hand, board members are keenly aware of the environmental and social requirements their companies must address— given emerging legislation and global reporting standards, sustainability-conscious investors and customers, and the increasingly clear link between long-term company performance and sustainability. Boards know that environmental, social, and governance (ESG) goals can no longer be an afterthought, way down the agenda after financial governance and performance...

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    8. The Corporate Contract and Shareholder Arbitration

      The Corporate Contract and Shareholder Arbitration

      Longstanding decisions of the U.S. Supreme Court coupled with more recent developments in the corporate law of Delaware have sparked renewed concerns that publicly traded corporations may adopt arbitration provisions precluding shareholder lawsuits, particularly securities fraud class actions. In particular, in a line of decisions spanning decades, the U.S. Supreme Court has steadily expanded the reach of the Federal Arbitration Act (“FAA”). Section 2 of that statute mandates...

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    9. The Role of Long-Term Shareholder Voice

      The Role of Long-Term Shareholder Voice

      Faced with inflationary pressures, geopolitical uncertainty, and market volatility, companies’ commitment to an elevated culture of shareholder engagement has never been more critical. Coupled with these headwinds are the introduction of a universal proxy card and a shifting legislative environment. These developments have the potential to significantly alter the landscape of shareholder activism...

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    10. Shareholder Voting Trends (2018-2022)

      Shareholder Voting Trends (2018-2022)

      This post provides an overview of shareholder resolutions filed at Russell 3000 and S&P 500 companies through mid-July 2022, including trends regarding the volume and topics of shareholder proposals, the level of support received by those proposals when put to a vote, and the types of proposal sponsors. The report is accompanied by a Live Dashboard, which contains the most current figures and enables data cuts by market index, business sectors, and company size groups. Please refer to the dashboard for the most recent data...

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    11. Twenty-Year Review of Audit and Non-Audit Fee Trends

      Twenty-Year Review of Audit and Non-Audit Fee Trends

      Audit fees are an indicator of audit complexity and risk. Higher risk audits require more auditor resources (hours, personnel, specialists, etc.) to reduce audit risk to an acceptable level. Analyzing fees by industry, company size, and location can provide insight into the level of risk and auditor effort various sectors of publicly listed companies entail...

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    12. ESG Trends – What the boards of all companies should know about ESG regulatory trends in Europe

      ESG Trends – What the boards of all companies should know about ESG regulatory trends in Europe

      France and Europe are at the forefront of ESG regulation. They have taken steps that go far beyond mere reporting requirements, aiming at designing a new capitalism. This so-called responsible capitalism will have significant consequences for European companies, but also for non-European companies doing business in Europe, as the EU shows more and more inclination to enforce its ESG regulation on a worldwide basis...

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    13. Stakeholderism Silo Busting

      Stakeholderism Silo Busting

      Separate fields of business law are undergoing tumultuous debates. The orthodox view that antitrust law should focus exclusively on consumer welfare is threatened by increasingly influential figures like Lina Khan and Tim Wu, who urge a focus on preserving smaller companies and the threat of political domination by large firms. The orthodox view that bankruptcy law should focus on creditor interests has drawn public outrage as parties and judges pursue it to its logical conclusion in cases of mass injury like Purdue Pharma and Johnson & Johnson, pursuing maneuvers that protect financial creditors and investors and curtail litigation by victims of ...

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    14. Statement by Chair Gensler on Final Rules Regarding Clawbacks of Erroneously Awarded Compensation

      Statement by Chair Gensler on Final Rules Regarding Clawbacks of Erroneously Awarded Compensation

      Today, the Commission is considering adopting final rules mandated by the Dodd-Frank Act regarding clawbacks of erroneously awarded incentive-based compensation. I believe that these rules, if adopted, would strengthen the transparency and quality of corporate financial statements, investor confidence in those statements, and the accountability of corporate executives to investors...

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    15. Assessing the Executive Pay Landscape Ahead of 2023

      Assessing the Executive Pay Landscape Ahead of 2023

      As 2022 nears its close, companies across Corporate America are preparing for 2023 and what’s developing to be one of the most anticipated proxy seasons in recent years. In August 2022, the United States Securities and Exchange Commission (SEC) officially adopted its “Pay Versus Performance” rules, following several rounds of comments and proposals. The new rules require public companies to disclose information reflecting the relationship between compensation actually paid to a company’s named executive officers (NEOs) and the company’s financial performance...

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    16. Perspectives on the Current Activism Landscape

      Perspectives on the Current Activism Landscape

      The activism landscape in a post-pandemic world continues to evolve. This year has been characterized by a sharp increase in campaigns relative to recent years, a heightened focus on M&A transactions and increased presence of environmental, social and governance (ESG) themes. Amid all of this evolution, the recent implementation of the universal proxy card regime represents a step function change in activism campaigns, the impact of which is only beginning to be felt...

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    17. How Much Do Investors Care About Social Responsibility?

      How Much Do Investors Care About Social Responsibility?

      Perhaps the most important corporate law debate over the last several years concerns whether directors and executives should manage corporations to maximize value for investors, or to also take into account the interests of other stakeholders or society (see, e.g., Hart and Zingales, 2017Bebchuk and Tallarita, 2020Rock, 2021). But this raises several important questions that have received much less attention: Do individual investors themselves wish to maximize returns, or are they willing to forgo returns for social purposes...

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      Mentions: Investors Boards Wish
    18. Activists Face an uphill battle

      Activists Face an uphill battle

      Activists won at least one board seat at 29% of campaigns that went to a vote or settled this proxy season, according to Insightia’s Activism module, compared to at 54% and 34% of campaigns throughout the 2020 and 2021 proxy seasons, respectively. Most of the wins were at smaller companies, while activists had less luck against bigger companies with resources to mount a vigorous defensive...

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    19. Quarterly Review of Shareholder Activism – Q3 2022

      Quarterly Review of Shareholder Activism – Q3 2022
      • 44 new campaigns launched in Q3, a 52% increase over prior year Q3, marking the third consecutive quarter of significant year-over-year increased activity
      • Total campaigns YTD (171) up 39% over the same period last year, already approaching the total for full-year 2021 (173)
      • Continuing an H1 trend, Technology companies were the most frequently targeted in Q3, accounting for 22% of new activist targets
      • With 5 new campaigns in Q3, Elliott continued to accelerate its 2022 pace and has now launched 11 campaigns YTD (more than double the next most prolific names)...

       

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