Category: Regulations & Legislation

Economics, Uncertainty, and the 2016 Election

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At a mainstage panel during NACD’s 2016 Global Board Leaders’ Summit on September 19, directors, economists, and former regulators discussed the potential regulatory, economic, and geopolitical implications of the coming election and reflected on how corporate directors and executive teams should adjust to greater levels of ambiguity. One of the panelists, Nicholas M. (Nick) Donofrio, director of Advanced Micro Devices Inc., BNY Mellon Corp., Delphi Automotive PLC, Liberty Mutual Co., the MITRE Corp., and NACD, and the former head of innovation at IBM, characterized today’s external environment as “lumpier and more abrupt than even a few years ago,” forcing companies and their boards to be always on alert and to act quickly in response to change.

NACD Summit Election Panel

The panelists offered a range of projections to help corporate directors assess the business impact of the upcoming elections. They emphasized that aside from a new occupant of the White House, the elections also have the potential to drive significant changes in Congress, major regulatory agencies, and the judicial system. The discussion centered on four major questions of importance for companies and the boards that oversee them.

  1. How likely is a major reform of the tax code?

Reform of the corporate tax code is long overdue, said former U.S. Senator Olympia J. Snowe, director of Aetna, Inc. and the Bipartisan Policy Center. For years, companies have learned to accept the “permanent temporary tax code,” and the resulting policy uncertainty has made investment and capital allocation decisions more challenging. Snowe suggested that even if House and/or Senate control switches from one party to another, it is unlikely that Democratic and Republican congressional leaders will be able to transcend their fundamental differences about taxation and break the current gridlock. Most likely, she believes, the incoming president will use the power of the pen to tweak the current tax code through executive orders.

  1. Should we expect continued regulatory activism?

Troy A. Paredes, director of Electronifie and former Commissioner of the U.S. Securities & Exchange Commission (SEC), shared his concern that “the tidal wave of regulations” seen in the past few years won’t slow down, and it will force companies to commit more time and resources to compliance. “Elections are always major inflection points,” he said, that either sustain or reset the policy priorities of the SEC and other key regulatory bodies such as the Commodity Futures Trading Commission, Federal Trade Commission, and Federal Communications Commission. Meanwhile, Paredes urged directors to be alert as to whether Mary Jo White, the current chair of the SEC, will have enough time in her remaining tenure to finish rule-making on key corporate governance matters covered in Dodd-Frank.

  1. Will our political system address skill shortages in the labor market?

Nick Donofrio offered a mixed view of how the country is addressing the looming crisis in the labor market where current skill sets do not align with the future industry needs. “Our political institutions are too polarized to take meaningful action,” he said. However, it’s crucial that the United States build a digitally competent and productive labor force that can be employed to deliver high-tech manufacturing. “We cannot afford to only create [financial] value in this country, but we must also [manufacture] value here. That means returning much more research and development and production to American soil.” In the absence of government investment, he’s optimistic that the private sector will step up to address this critical challenge and find innovative ways to reskill displaced workers.

  1. How will the United States make itself more competitive globally?

Harry Broadman, a seasoned economist and the CEO and managing partner of Proa Global Partners LLC, reminded the audience that the United States faced a similar set of challenges to its global competitiveness in the 1980s when Japan was projected to become the world’s economic leader. A major difference today may be the backlash against free trade, which could jeopardize the adoption of the Trans-Pacific Partnership and threaten the underpinnings of the European Union. Broadman underlined that it will be critical for U.S. policymakers to remove barriers to foreign investments from high-growth emerging market companies that will contribute to quality job growth. This new generation of enterprises is important to the future of global business, which will no longer be dominated by firms headquartered in the West.

He and other panelists also spoke extensively about the importance of major investments in public infrastructure. America’s crumbling highways, bridges, ports, and technology infrastructure significantly impede further productivity growth, which Broadman believes is the country’s major Achilles’ heel.

Lessons From the War Over the Target Data Breach

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Craig Newman

Craig Newman

The dust settled recently on another chapter of the Target Corp. data breach litigation. Although the five shareholder derivative lawsuits filed against Target’s officers and directors have been dismissed, they underscore the critical oversight function played by corporate directors when it comes to keeping an organization’s cyber defenses up to par. While the ink isn’t quite dry on the court papers, it’s time to start reflecting on the lessons of the skirmish.

In the midst of the 2013 holiday shopping season, news leaked that hackers had installed malware on Target’s credit card payment system and lifted the credit card information of more than 70 million shoppers. That’s almost 30 percent of the adult population in the U.S.

Predictably, litigation was filed, regulatory and congressional investigations commenced, and heads rolled. Banks, shareholders, and customers all filed lawsuits against the company. Target’s CEO was shown the door.

And Target’s directors and officers were caught in the crossfire. In a series of derivative lawsuits, shareholders claimed that the retailer’s board and C-suite violated their fiduciary duties by not providing proper oversight for the company’s information security program, not making prompt and accurate public disclosures about the breach, and ignoring red flags that Target’s IT systems were vulnerable to attack.

The four derivative cases filed in federal court were consolidated (one derivative lawsuit remained in state court) and Target’s board formed a Special Litigation Committee (SLC) to investigate the shareholders’ accusations. The SLC was vested with “complete power and authority” to investigate and make all decisions concerning the derivative lawsuits, including what action, if any, would be “in Target’s best interests.” Target did not appoint sitting independent directors but retained two independent experts with no ties to the company—a retired judge and a law professor. The SLC conducted a 21-month investigation with the help of independent counsel, interviewing 68 witnesses, reviewing several hundred thousand documents, and retaining the assistance of independent forensics and governance experts.

On March 30, 2016, the SLC issued a 91-page report, concluding that it would not be in Target’s best interest to pursue claims against the officers and directors and that it would seek the dismissal of all derivative suits.

Minnesota law, where Target is headquartered, provides broad deference to an SLC. Neither judges nor plaintiffs’ are permitted to second-guess the SLC members’ conclusions so long as the committee’s members are independent and the SLC’s investigative process is ‘adequate, appropriate and pursued in good faith.” By these standards, U.S. District Judge Paul A. Magnuson recently dismissed the derivative cases with the “non-objection” of the shareholders, subject to their lawyers’ right to petition the court for legal fees.

Target isn’t the only data-breach-related derivative case filed by shareholders against corporate officers and directors. Wyndham Worldwide Corp.’s leadership faced derivative claims relating to three separate data breaches at the company’s resort properties. After protracted litigation, the derivative claims were dismissed in October 2014, in large measure because Wyndham board’s was fully engaged on data security issues and was already at work bolstering the company’s cybersecurity defenses when the derivative suit was filed. A data-breach-related derivative action was also filed against the directors and officers of Home Depot, which remains pending.

Despite the differences between the Target and Wyndham derivative suits, both cases contain important lessons for corporate executives and sitting board members.

  1. Treat data security as more than “just an IT issue.” Boards must be engaged on data security issues and have the ability to ask the right questions and assess the answers. Board members don’t know what they can’t see. Developing expertise in data security isn’t the objective; rather, it’s for directors to exercise their oversight function. Board members can get cybersecurity training and engage outside technical and legal advisors to assist them in protecting their organizations from data breaches.
  2. Evaluate board information flow on cybersecurity issues. How are board members kept up-to-date on data security issues? Are regular briefings held with the chief information officer (CIO) to discuss cybersecurity safeguards, internal controls, and budgets? Boards might also consider appointing special committees and special legal counsel charged with data security oversight.
  3. Prepare for cyberattacks in advance. Boards should ask tough questions about their organization’s state of preparedness to respond to all aspects of a cyber-attack, from reputational risk to regulatory implications. Get your house in order now, and not during or after an attack. Not surprisingly, multiple studies—including the Ponemon Institute’s 2016 Cost of Data Breach Study—suggest that there is a correlation between an organization’s up-front spending on cybersecurity preparation and the ultimate downstream costs of responding to a breach.
  4. Decide whether and when to investigate data breaches. Before hackers strike, boards must decide whether and when to proactively investigate the breach, wait to see if lawsuits are filed, or wait to see if regulators take notice. Regardless, boards should be prepared to make this difficult decision, which will establish the tone of the company’s relationship with customers, shareholders, law enforcement, regulators, and the press.
  5. Develop a flexible cyber-risk management framework. Cyber-risk oversight isn’t a one-time endeavor, nor is there a one-size-fits-all solution. The threat environment is constantly changing and depends, in part, on a company’s sector, profile, and type of information collected and stored. While cyber-criminals swiped credit card data in the Target and Wyndham cases, the threat environment has escalated to holding organizations hostage for ransomware payments and stealing industrial secrets.

Cybercrime is scary and unpredictable. It poses risks to a company’s brand, reputation, and bottom line.  Board members are on the hot seat, vested with the opportunity and responsibility to oversee cybersecurity and protect the company they serve.

Craig A. Newman is a litigation partner in Patterson Belknap Webb & Tyler LLP and chair of the firm’s Privacy and Data Security practice. He represents public and private companies, professional service firms, nonprofits institutions and their boards in litigation, governance and data security matters. Mr. Newman, a former journalist, has served as general counsel of both a media and technology consortium and private equity firm.

Directors Can Add Valuable Perspective to SEC’s View of Sustainability

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The sustainability information in CSR reports is not, from our perspective, “investment-grade;” that is, it is not necessarily material, not industry specific, not comparable, and not auditable.

Business news headlines on any given day highlight the importance of sustainability issues such as resource scarcity, climate change, population growth, globalization, and transformative technologies. In today’s world, management of these and other sustainability risks and opportunities influences corporate success. Thus, understandably, investors are increasingly requesting information on how companies are managing these factors.

Aulana Peters

Aulana Peters

A concept release from the Securities and Exchange Commission (SEC) on disclosure effectiveness includes a lengthy discussion of sustainability disclosure. In the release, the SEC states that it is “interested in receiving feedback on the importance of sustainability and public policy matters to informed investment and voting decisions.” We hope that the SEC’s request for input on sustainability issues signals an understanding that the information investors consider “material”—much like the world around it—is changing. As a result, corporate disclosures should also evolve to provide investors with the information they need to make informed investment and voting decisions.

Sustainability issues are increasingly important to a company’s financial condition and operating performance, and thus merit the attention of its board. At more than 55 percent of S&P 500 companies, the board oversees sustainability, according to the Investor Responsibility Research Center Institute. Such boards are to be applauded for taking a more holistic view of risk oversight, and for getting out in front of global challenges.

This shift in focus by investors and the business community is driven by a growing recognition that sustainability issues are business issues, not only born of social or political concerns. One recent study found that when companies focus their efforts on managing material sustainability factors—namely, those critically linked to their core business—they outperform their peers with significantly higher return on sales, sales growth, return on assets, and return on equity. They also show significantly improved risk-adjusted shareholder returns.

Clearly, the board plays a key role in developing a company’s capacity to create long-term value and in safeguarding its assets. In this regard, a board’s careful consideration of information on material sustainability factors would help it to fulfill its oversight responsibilities, by assisting it in understanding, prioritizing, and monitoring business-related risks and opportunities.

For example, a board should regularly consider how its company measures, manages, and reports its material sustainability risks. A pharmaceuticals company might consider how it is addressing a $431 billion counterfeit drug market, where mitigation strategies in an increasingly complex, global supply chain could stem or reverse the loss of consumer confidence and company revenues, and prevent up to 100,000 deaths each year (see Roger Bate’s 2012 book Phake: The Deadly World of Falsified and Substandard Medicines). The plunging stock price and loss of goodwill suffered by Chipotle Mexican Grill after outbreaks of E. coli and norovirus at its restaurants demonstrate the way in which a failure to manage sustainability risk factors can seriously damage a company’s reputation and shareholder value.

Moreover, sustainability issues not only raise risks, but also present opportunities that can and should be taken into account by the board as it considers development and implementation of the company’s strategic goals.

Sustainability issues may have a material impact on a company’s ability to achieve such goals. For automakers, a strategy that incorporates fuel-efficient technologies and alternative fuels can help the company capitalize on legal and consumer trends regarding fuel economy and emissions in a market where car ownership is projected to triple by 2050.

Elisse Walter

Elisse Walter

Sustainability issues directly affect a company’s financial condition and operating performance. Therefore, it is not surprising that investors are increasingly demanding more effective and useful sustainability information. Many companies have made efforts to meet this demand through disclosures in corporate social responsibility (CSR) reports, by responding to questionnaires, or otherwise engaging with investors. The sustainability information in CSR reports is not, from our perspective, “investment-grade;” that is, it is not necessarily material, not industry specific, not comparable, and not auditable. To that point, a 2015 PwC study found that 82 percent of investors said they are dissatisfied with how risks and opportunities are identified and quantified in financial terms; 74 percent of the investors polled said they are dissatisfied with the comparability of sustainability reporting between companies in the same industry.

What the markets have lacked, until now, are standards that can guide companies in disclosing material sustainability information in a format that is decision-useful. These standards must be industry specific. Sustainability issues affect financial performance differently depending on the topic and the industry. Therefore, investors need guidance on which sustainability issues are material to which industries, and they need industry-specific metrics by which to evaluate and compare the performance of reporting companies.

The Sustainability Accounting Standards Board (SASB), an independent 501(c)(3) nonprofit, was created to address this market inefficiency. The mission of SASB is to develop and disseminate industry standards for sustainability disclosure that help public corporations provide material, decision-useful information to investors via MD&A and other relevant sections of SEC filings such as the Form 10-K and 20-F. SASB’s standards are formulated with broad market participation and draw upon metrics already used by the corporate community. They will continue to evolve, as our world, and thus material sustainability issues, change.

Investors want to place their funds in entities that have good prospects for the future. To do so, they evaluate the information that is material to a company’s prospects. Not all that information rests in the financial statements that reflect a company’s current financial condition. We believe that, in today’s world, risks and opportunities not yet reflected in a company’s financial statements influence its success.  And, the information that is “material” to investors—much like the world around it—has changed.

To help companies disclose material sustainability information, the capital markets need standards for disclosure of sustainability information that are created by the market, specific to industry, and compatible with U.S. securities law.

The management and disclosure of sustainability issues merits the attention of directors. The public comment period for the SEC’s disclosure effectiveness concept release runs through July 21. This is an important opportunity for publicly held companies and their directors to be heard on these critical issues, and to stress the importance of a market standard that serves investors while not overburdening issuers.

Aulana Peters was an SEC Commissioner from 1984-1988. Elisse Walter was the 30th chair of the SEC. Peters and Walter serve on the SASB board of Directors.