Speaking of disclosures to watch in your upcoming reports, we’ve posted the transcript for our recent “Corporate DEI Programs After Students for Fair Admissions v. Harvard” webcast featuring J.T. Ho, Partner at Orrick, Ngozi Okeh, DEI Editor of PracticalESG.com, and Travis Sumter, Labor & Employment Attorney at NextRoll. Our panelists offered their insights about how to navigate the increasingly complex surroundings in which corporate DEI programs operate.
The webcast covered:
– Overview of the Students for Fair Admissions v. Harvard Decision
– Legal Framework Governing Corporate DEI
– Potential Vulnerabilities of Corporate DEI Programs
– Mitigating DEI Legal Risks
– Dealing With Pro- and Anti-DEI Activism
This was a joint webcast with PracticalESG.com. If you are not a member of TheCorporateCounsel.net or PracticalESG.com, email sales@ccrcorp.com to sign up today and get access to the full transcript – or sign up online.
Programming note: In observance of the federal holiday on Monday, we will not be publishing a blog. We will be back on Tuesday!
This HLS blog details recent CEO succession trends among the Russell 3000 and S&P 500 – with data & analysis from The Conference Board, Heidrick & Struggles, and ESGAUGE. Here’s one trend that jumped out:
The rate of inside promotions to the CEO position in the Russell 3000 increased from the prior years, reaching 73.5 percent of incoming CEOs in 2022—the highest since The Conference Board and ESGAUGE began tracking these statistics. In the S&P 500, the rate of inside promotions is projected at 84.6 percent for 2023, one of the highest ever recorded and higher than the historical average (78.8 percent since 2011). In 2022, Real Estate, Utilities, and Financial companies reported the highest rate of internal promotions to the EO role (93.3 percent, 91.7 percent, and 86 percent, respectively), while Communication Services companies had the highest percentage of outside CEO hires (64.3 percent).
What’s more, companies aren’t just promoting internal executives, they are awarding the golden ticket a few years sooner than has been the case historically:
While a critical source of CEO talent continues to be long-serving executives promoted from within, data suggests that after the pandemic, boards fast-tracked inside promotions to the chief executive post. As of the end of 2022, the average tenure-in-company of internally promoted CEOs was 12 years in the S&P 500 and 10 years in the Russell 3000, lower than the historical averages of 16 years and 11 years, respectively. The share of “seasoned executives”—or those with at least 20 years of company service—was also lower than the historical averages (17.3 percent in the S&P 500, compared to a 32.2 percent 5-year average; and 15.0 percent in the Russell 3000, down from a 17.8 percent historical average).
The blog points out that there’s significant variance across industries but says the data could suggest changing perceptions of leadership. Specifically, boards might be embracing new leadership traits around innovation & adaptability. Lastly, the more rapid ascent of executives makes leadership development even more important. The blog gives these final thoughts:
The decline of tenure-in-company and “seasoned executives” in a year where the overall rate of CEO succession increased may also suggest that companies accelerated their leadership development process to expand their pool of CEO candidates. To help mitigate human capital risks, the entire board should review, at least annually, the leadership development process within their companies and scrutinize internal succession candidate lists.
A fun project that often accompanies board meeting preparation is “benchmarking.” This used to mean combing through peer SEC filings to find information from other companies on whatever specific data point your boss or the board had inquired about. If you were lucky, secondary commentary would exist and give you a starting point. Good news! While peer disclosures & trend summaries absolutely remain valuable as sources for context and analysis, there are new tools these days to add to your toolbox.
Here’s a handy dashboard from The Conference Board, ESGAUGE, and Heidrick & Struggles that is updated weekly with info on CEO succession announcements in the Russell 3000 and S&P 500. I’ve also recently been using these dashboards to track trends on compensation, board practices, shareholder proposals, and ESG. You can filter by index, company size, and business sector – and browse data about:
1. Succession Rates – generally, across performance quartiles, across age groups, and share of forced successions
2. CEO Profile – various demographic categories and tenure
3. Departing CEOs – similar demographic categories, tenure, reasons for departure, and number of forced CEO departures (and why)
4. Incoming CEOs – demographics
5. Placement Types & Other Practices – inside appointments, non-executive directors appointed as CEOs, interim CEOs, practices for announcement & effectiveness dates, outside hires, and more
Here’s a topic of interest that John blogged about last week on DealLawyers.com (visit that site for seasoned perspectives and practical guidance on all things deal-related):
One of the issues under Delaware law that has generated some uncertainty over the years is the extent to which the DGCL permits a corporation to create a mechanism in which shares of the same class differ in their share-based voting power depending on who holds them. Vice Chancellor Laster’s recent decision in Colon v. Bumble, (Del. Ch.; 9/23), may go a long way toward resolving that uncertainty.
Delaware courts have permitted tenure voting arrangements, in which the voting rights of holders of the same class vary depending on how long they’ve held the shares, and other limitations, such as per capita regimes, that limit a stockholder’s voting rights based on the number of shares owned, but in Colon v. Bumble, Vice Chancellor Laster addressed a situation in which the voting rights of particular shares expressly depended on the identity of their owner.
In order to facilitate its IPO, Bumble installed an “Up-C” structure, which resulted in a hybrid entity in which public stockholders’ enjoyed voting & economic rights through ownership of Class A shares, while pre-IPO insiders enjoyed voting rights through ownership of Class B shares and economic rights through the ownership of their pre-IPO LLC units, each of which were convertible, when accompanied by a Class B share, into shares of Class A Common Stock.
Bumble’s charter provides that each share of Class A Common Stock is entitled to one vote, unless that share is held by one of the company’s “Principal Stockholders,” in which case it is entitled to ten votes. The charter defines the term Principal Stockholders to include the two insiders who were party to a pre-existing stockholders’ agreement with the company. It also authorized a class of Class B Common Stock, which was issued exclusively to the company’s Principal Stockholders. Each share of Class B stock is entitled to a number of votes equal to the number of Class A shares that the holder would receive if all of its units in were converted into Class B shares at the Exchange Rate and with a Principal Stockholder receiving ten votes per Class A share.
The plaintiffs contended that the disparate voting rights enjoyed by the Principal Stockholders under this structure were invalid under Delaware law because those rights depended on the identity of the stockholder. In response, Vice Chancellor Laster conducted a detailed and thoughtful analysis of both the relevant statutory provisions and case law, and concluded that the disparate voting rights were valid:
As required by Sections 102(a)(4) and 151(a), the charter sets out a formula that applies to all the shares in the class and that specifies how voting power is calculated. As authorized by Section 151(a), the formula makes the quantum of voting power that a share carries dependent on a fact ascertainable outside of the certificate of incorporation, namely the identity of the owner. The Class A formula is a simple one. If a Class A share is held by a Principal Stockholder, then it carries ten votes per share. If not, then a Class A share carries one vote per share.
The Class B formula is complex but reaches the same result. As long as a Class B share is held by a Principal Stockholder, then it carries ten votes per share for each Class A share that it could convert into. If the Class B share is not held by a Principal Stockholder, then then it carries one vote per share for each Class A share that it could convert into.
Under Providence, Williams, and Sagusa, having the level of voting power turn on the identity of the owner is permissible. To apply the formulas in Providence, Williams, and Sagusa, the corporation had to determine which stockholder owned the share. True, the processes also had to take into account another attribute. In Providence and Sagusa, it was how many other shares the owner held. In Williams, it was when the owner acquired the share. But the starting point in each mechanism was the identity of the owner. That is the same mechanism that the Challenged Provisions use.
From my perspective, this is a very impressive opinion, and one that any lawyer called upon to draft charter documents will want to keep in mind. Vice Chancellor Laster provides a comprehensive seminar on Delaware statutory law and judicial opinions addressing the special attributes and limitations with respect to shares that Delaware corporations may establish in their charter documents. Most impressively, he accomplishes this in an opinion that’s less than 35 pages long. That’s practically a text message by the Vice Chancellor’s standards.
Check out this blog from Keith Bishop for a discussion of how California law addresses the issue of disparate voting rights based on the identity of the stockholder.
Last week was fiscal year end for the federal government, including the SEC and other agencies. In the face of the shutdown threat, the Commission plowed forward with its customary year-end enforcement spree, making every effort to add to the government’s bottom line. The WSJ reported that they brought in $218 million in fines last Friday alone – 10% of the Commission’s annual budget!
Included in the pile of settlements announced during the last 10 days of the month were two (!) instances of the SEC taking issue with non-disclosure provisions in separation or employment agreements that, in the SEC’s view, discouraged potential whistleblowers from voluntary contacting the SEC about potential securities law violations, and thereby violated Rule 21F-17.
For those who may not remember, Rule 21F-17 became effective as part of the Dodd-Frank Act in August 2011. In the big picture, that’s not that long ago. So, maybe it’s not too surprising that these provisions continue to linger on in forms – especially because stray language can appear in various overlapping policies, agreements, and acknowledgement pages that are handled by different departments. In the SEC’s view, that’s not a good excuse.
Anyway, these two actions followed a similar announcement earlier in the month (so that’s 3 total just this past month, for anyone counting at home). That brings the running total of Rule 21F-17 enforcement actions to “nearly 20” since 2015, according to one of the recent orders. In these instances, both companies added language and/or sent communications to employees following the first wave of enforcement actions in 2015 to clarify that the provisions shouldn’t be construed to prevent whistleblower claims. But in the SEC’s view, that didn’t fully address the problem. Here’s why:
1. In this case, the SEC viewed the new language as prospective in nature, and not a cure for restrictions on disclosure from 2011 to 2015. The Commission noted that it wasn’t aware of any specific instances in which a former employee was prevented from communicating with the Commission Staff about potential securities law violations, or in which the company took action against a former employee based on the non-disclosure representation. The company cooperated with the SEC’s investigation, initiated a remediation program, and agreed to a $375k fine as part of the settlement.
2. In this case, the company continued to use an employment agreement without a whistleblower carveout for years after revising other policies, and after that, continued to use a release at the time of separation that reminded employees of confidentiality requirements (without a carveout). The Commission didn’t like that severance and deferred comp were conditioned on signing the release, and also said it was aware of one former employee who was initially discouraged from submitting a whistleblower complaint. The company cooperated with the SEC on remedial steps. They were fined $10 million!
Enforcement Director Gurbir Grewal shared this warning in the SEC’s announcement about the second case:
“Entities employing confidentiality, separation, employment and other related agreements should take careful notice of today’s enforcement action,” said Gurbir S. Grewal, Director of the SEC’s Division of Enforcement. “The Commission takes seriously the enforcement of whistleblower protections and those drafting or using these types of agreements should take equally serious their obligations to ensure that they don’t impede whistleblowers from contacting the Commission.”
This week I’ve been re-reading Gulliver’s Travels, where shifts in scale make all the difference in Gulliver’s world. And because I also am on a journey with Dave to XBRL acceptance, it got me thinking that “scale” is a very important concept for data tagging requirements as well. So, with apologies to anyone whose enjoyment of Swift’s classic may now be ruined, I will spotlight an exchange on our “Q&A Forum” (#11,840), where a member posed this question about Corp Fin’s recent sample comment on XBRL cover page tagging:
Corp Fin’s sample comment says, “The common shares outstanding reported on the cover page and on your balance sheet are tagged with materially different values. It appears that you present the same data using different scales (presenting the whole amount in one instance and the same amount in thousands in the second). Please confirm that you will present the information consistently in future filings.”
The numbers are as of different dates (balance sheet date versus latest practicable date) and are in different scales. This seems compliant with the rules and not problematic so the comment seems errant.
An astute member responded:
I think the SEC may be looking for consistent scale when a filer includes the number of outstanding shares in the line-item description in the balance sheet, not the actual GAAP common stock amount. The relevant tags being:
dei:EntityCommonStockSharesOutstanding – used on cover page, scale should be zero
us-gaap:CommonStockSharesOutstanding – used by some filers in the line-item description (presumably what the SEC is targeting in the sample comment letter and believes should be presented in same scale as cover page)
us-gaap:CommonStockValue – actual GAAP amount in the balance sheet columns and is often in thousands or millions and wouldn’t make sense to be the same scale as the cover page
John weighed in as well:
I think you may be onto something when you note the possibility that filers weren’t using the proper “scale” when tagging the amounts. The SEC’s Office of Structured Disclosure issued this guidance in 2019 about scaling errors in public float.
I blogged a year ago that FASB was considering an accounting standard for digital assets. The Board’s technical agenda shows that they deliberated in early September and that a new ASU is scheduled to land in Q4. Here’s a summary of the tentative decisions.
The Center for Audit Quality says the new standard will require companies holding cryptocurrency to recognize losses & gains immediately – and shared this color:
According to a CAQ analysis as of September 5, 2023 83 comment letters had been submitted to FASB in response to their cryptocurrency proposal. Nearly all commenters across stakeholder groups (including the CAQ) expressed support for accounting for crypto assets within the scope of the Proposed ASU at fair value. Only two commenters specifically opposed accounted for crypto assets within the scope of the Proposed ASU.
Many commenters were supportive of the narrow scope of the Proposed ASU but recommend that additional standard setting on a wide range of topics will be needed in the future. These topics included wrapped tokens, NFTs, stablecoins, and other emerging crypto assets fall outside the scope of the Proposed ASU. However, according to this article from Accounting Today, we may need to wait a while for a project on wrapped tokens as a spokesperson for the FAF said “at this time there are no plans for a project specifically addressing NFTs or wrapped tokens.”
Commenters on the proposed ASU also requested further guidance on accounting for certain types of digital asset transactions (including, derecognition, crypto lending and borrowing, and crypto receivables and payables).
For more on digital assets, here’s a primer for audit committees and key questions for audit committees to consider, both from the CAQ.
According to the latest Spencer Stuart Board Index, 68% of S&P 500 boards included a director skills matrix in their proxy this spring. That’s up from 56% last year and just 38% in 2020! The trend is responsive to investors’ desires to better understand how each director’s expertise supports the company’s overall board composition.
This WSJ article likens the challenge of assembling a strong board – consisting of directors who have experience across all of the relevant categories – to solving a “Rubik’s Cube.” The article parses through the new Spencer Stuart Index and several other recent studies on board composition & diversity. Here’s one trend that jumps out:
Among last year’s newly appointed directors, CEO experience is less common, at just 43%, among the lowest figures since at least 2015, Heidrick & Struggles found.
The share of directors with CEO experience declined in 60% of companies and nearly every sector of the S&P 500 from 2019 to 2022, a Wall Street Journal analysis of data from BoardEx found.
That’s in part because more employers now let lower-level executives join the boards of other companies as boards simultaneously seek executives with specific experiences and skill sets, says John Wood, a Heidrick & Struggles vice chairman who recruits CEOs and directors.
Where in the past there was concern that such appointments would distract executives from their day jobs, Wood says, now “boards and management [are] saying: Can we give her some board experience? Because she could be in consideration for CEO succession.”
All that said, the Spencer Stuart analysis finds that boards continue to rely on retirement policies as their primary refreshment tool, so turnover is slow despite the rapidly changing business environment. I suppose that means that it’s more important than ever for directors to possess skills that can withstand the test of time.
Last week on CompensationStandards.com, I blogged about approaches that some companies are taking to incentivize compliance & ethics. But even “good” companies are regularly dealing with complaints, which may or may not be valid. Management & the board then face the difficult question of what to do – and recent experience shows that the decision can have important implications for officer & director liability.
This 4-page Skadden memo gives a roadmap that audit committees & boards can follow when deciding whether to launch an internal investigation, and what form it should take. Here are the key takeaways:
– When a complaint reaches a company’s board, directors need to assess how serious and detailed it is, and how credible it is at first glance, before deciding how to investigate it.
− If similar complaints have been lodged in the past, that could suggest systemic problems and greater risk for the company.
− An investigation will take on added urgency if the regulators or external auditors are aware of the allegations, or if those may affect pending financial or strategic transactions.
− Other complicating factors: any allegations against management, conduct the company has a duty to report and the potential for financial restatements.
If you find yourself answering “yes” to most of the questions in the memo, the Skadden team says that the board should strongly consider conducting an investigation, with help from outside experts.
The SEC has extended the comment period for Nasdaq’s proposal to require notice & disclosure of reverse stock splits, which John blogged about in July. This means that, under Exchange Rules, November 1st is the date by which the Commission will either approve or disapprove, or institute proceedings to determine whether to disapprove, the proposed rule change. You can use this form to submit comments.