Ian Bremmer, founder and president of Eurasia Group, is often described as a guru of political risk—a type of risk that’s becoming more important for companies to consider. In his keynote address at the 2016 NACD Global Board Leaders’ Summit, he advised that, although companies have traditionally focused on financial returns, they will need to be primarily concerned about the security of their investments going forward—and investments stand to be radically impacted by geopolitical disruption. Bremmer noted that the impact of significant global changes is much greater than the outcome of the upcoming U.S. elections.
He also pointed out two global developments that companies need to keep top of mind:
1. The increased fragmentation of geopolitical power: Over the past half century, American businesses conflated Americanization with globalization. That line of thinking is failing to hold up, and Americanization of global markets has halted. The United States can no longer set and control the rules of global diplomacy and market place and will be increasingly reluctant to police global tensions. The United States’ transatlantic partnerships are weakening, and the European common market is under threat. These conditions have created an economic power vacuum that China is primed to step up and lead.
A champion of state-owned enterprise and the yuan, China has economic interests that are not aligned with those of the United States. This creates problems for U.S. businesses seeking to conduct business abroad. “Political hedging leads to economic hedging,” Bremmer said. “Corporations that are seen as being aligned with one country will be challenged to commercially succeed in others.” Uber’s failure in China is just one example.
2. The erosion of key social contracts: In recent years, there have been breakdowns in the implicit social contracts between governments and citizens and between companies and consumers. Rising populist anger is challenging the legitimacy of governments and threatening longstanding commitments to free trade. On the economic front, developed countries are spurring economic growth through innovative applications of technology—but these advancements are displacing millions of workers. As a result, Bremmer foresees a rise in nationalistic parties that will challenge the status quo and threaten international commerce, following similar strategies as the Brexit movement the U.K.
But where governments fail to adapt, other parties can step in to make amends—and companies are well positioned to be part of the solution. Bremmer offered the example of AT&T, which faced the possibility of needing to lay off a portion of its workforce because their work no longer supported the company’s future growth. But AT&T also knew that because of the transformations in the telecommunications industry in recent years, these workers would be hard pressed to find employment at another firm. Instead, the company decided to retrain these workers so they could support AT&T’s future trajectory. “If a corporation is the first to say it understands the social contract is breaking down and offers a solution, it will serve them well,” Bremmer said.
Finding a public company board seat can be difficult, to say the least. After all, there are only about 4,381 public companies listed in the U.S., each with about 7.5 seats held by nonexecutive directors. Combine that with a low rate of turnover for the directors already occupying those seats—about 8.5 years in the S&P 500—and approximately 3,866 public board seats become available each year for independent directors. To put that in context, just 339 new board seats became available in the Fortune 500 in 2014, with 67 percent of those seats filled by current and former CEOs and CFOs.
With the limited number of seats available on public company boards, NACD recently released a memo, called Director FAQ: Finding Your Next Board Seat, detailing five key strategies to help you find your next board seat. We’ve summarized three of those strategies below:
Evaluate the current demand for board seats and what company type your corporate experience is most suited to.
Nonprofit Boards: Nonprofit board service—though often uncompensated—is rewarding in its own right and a great way to meet directors who can, in turn, be points of introduction for other board seats.
Private Company Boards: More than 99 percent of all U.S. companies are privately owned. Serving on the board of a start-up or small private company can be a great place to learn how to be a director, especially with the venture-backed and private equity firms establishing the governance structures at these companies.
Public Company Boards: Although there are only a few thousand public companies in the U.S., non-U.S. companies that are headquartered and conduct business abroad, but are listed on U.S. exchanges, may be particularly interested in directors who understand U.S. listing requirements and who can help satisfy independence standards.
Strengthen your personal brand.
Take the following steps to help you develop your personal brand:
Become a recognized subject-matter expert by speaking at conferences and publishing articles.
Conduct an Internet search of yourself and analyze the results to determine if there is anything damaging to your reputation and how you will mitigate it.
Keep your LinkedIn profile current and include a photo of yourself.
Design your résumé for a directorship position, not an executive position, by describing what you can bring to the boardroom.
Meeting minutes of the board of directors, which usually are prepared by the corporate secretary, can play a crucial role in a government investigation or civil litigation relating to a decision or indecision of the board of directors or the knowledge of an individual director. In some instances, the minutes could establish an important defense for directors, while in other instances the minutes may subject directors to unnecessary criticism or worse. Directors should ensure that the corporate secretary follows these guidelines.
Unlike the meeting secretary, directors neither are obligated nor are advised to take individual notes during board and committee meetings. Individual director notes are unnecessary because the secretary’s official minutes will contain a record of the meeting. Additionally, director note-taking is risky. Directors’ notes likely would be discoverable in litigation, and notes that seemed clear in the days after a meeting may not be clear several years later after memories have faded. Absent a clear interpretation, adversaries will attempt to impose their own meanings on the notes. Furthermore, if multiple directors take notes, discrepancies may exist with other notes or the official meeting minutes.
Although individual circumstances may vary, below are some general guidelines that corporate secretaries of U.S. companies should follow when they take official notes and prepare meeting minutes for the board of directors. If a company is incorporated outside the United States, different guidance might apply.
Record the essential information. The corporate secretary should record essential information such as the date, starting and ending times, location, attendees (e.g., directors, management, experts, and legal counsel), presence and maintenance of a quorum, meeting chair, materials distributed in advance of the meeting, topics discussed, and decisions made in a formal meeting of the board. In some cases, the secretary should note the length of particular discussions and deliberations, especially if a particular discussion is an important part of the meeting. Directors also should ensure that the notes taken by the corporate secretary do not editorialize, as commentary could be misconstrued by an adversary if discovered in litigation.
Clearly identify separate meetings and tasks. Because notes and minutes are incomplete by nature, the more organization and structure they contain, the easier they will be to understand and interpret in the event that they are scrutinized. Secretaries should use the meeting’s agenda as a guide for organizing and labeling their notes and the minutes, and should indicate transitions from one topic to the next, including presentations by management, counsel, or advisory firms and executive sessions.
Identify in notes when an attorney is present during a conversation. Directors’ interactions with lawyers usually are protected by the attorney-client privilege or work-product protection, which may shield the content of those discussions from being turned over to an adversary. Boards also should consider including the general counsel in meetings that could involve a discussion of legal issues. If a lawyer is present during any portion of a meeting, the minutes should indicate the lawyer’s name and law firm, and the portions of the meeting for which the lawyer was present. Generally, the minutes for these interactions should indicate only that such discussions occurred and the general topics discussed.
Identify and describe the board’s deliberative process. Recording the general fact that the directors discussed or deliberated about an issue is critically important. However, what a particular director said about a particular issue is usually less important. For that reason, and to avoid errors in attribution, the secretary’s notes and official minutes generally should use collective or passive-voice descriptions (e.g., “the directors discussed the matter” or “a discussion ensued”) as opposed to attempting to record individual viewpoints and the directors who expressed them. Because directors may express passionate views about an issue, the secretary should exercise good judgment in determining what to record.
If notes are taken by hand, they should be clearly, legibly recorded, and should not include shorthand. Illegible meeting notes and notes taken in shorthand can be difficult to interpret when the secretary refers to them while drafting the official minutes. Provided typing is not disruptive to the directors in the meeting, directors should ask corporate secretaries to consider taking notes on a secure computer. Clarity and accuracy are crucial because a difference of opinion between directors regarding the events that occurred at a meeting ultimately may be resolved by reference to the secretary’s notes. In the litigation or regulatory enforcement context, unclear notes may result in meeting minutes that lack an obvious, objective interpretation and are susceptible to being misinterpreted by an adversary.
Encourage the secretary to maintain a standard practice of note taking. Secretaries generally should establish and maintain a standard practice for taking notes, retaining meeting materials and individual notes, and preparing meeting minutes. Deviating from a standard practice could raise negative inferences from a regulator or court.
The secretary should distribute the draft minutes for directors to review as soon as practicable. During their review, directors and secretaries should be mindful of any important events that occur between the meeting date and the finalization of the minutes. If a director believes the minutes omit important information, then the director should discuss orally the matter with the secretary. E-mails regarding the minutes between the secretary and directors, or among directors, should be strictly discouraged.
Discuss with counsel whether to retain notes and draft minutes. There may or may not be a legal or corporate requirement for the secretary to retain his or her meeting notes or draft minutes. After the official minutes are approved, the secretary should discuss with company counsel whether there is a requirement to maintain these materials and ascertain the length and nature of the requirement. If there is no requirement to maintain the materials, the secretary should discuss with counsel whether and how to discard them.
Bradley J. Bondi and Bart Friedman are partners with Cahill Gordon & Reindel LLP. They advise financial institutions and global corporations, boards of directors, audit committees, and officers and directors of publicly-held companies in significant corporate and securities matters, with particular emphasis on internal investigations and enforcement challenges. Michael D. Wheatley, a litigation associate at Cahill, assisted with this article.