Catégorie : International

Étude sur les pratiques des CA américains | ISS


La firme-conseil ISS, (Institutional Shareholder Services) publie chaque année une étude de l’évolution des pratiques de gouvernance aux É.U. (Board Practices Study).

Rob Yates, vice-président d’ISS, est l’auteur de cet article paru sur le site de Harvard Law School Forum on Corporate Governance. Il y aborde cinq tendances majeures.

Les investisseurs continuent d’exercer des pressions sur les administrateurs du conseil, entre autres en continuant de demander d’inclure de nouvelles candidatures dans la circulaire de procuration.

On constate que les pratiques généralement reconnues de bonne gouvernance sont adoptées dans presque toutes les grandes sociétés ; elles sont de plus en plus acceptées dans les plus petites entreprises. On fait ici référence aux élections annuelles, au vote majoritaire et à l’élimination des pilules empoisonnées.

La question du choix d’un président du conseil totalement indépendant et différent du CEO semble être moins problématique si la société fait appel à président désigné (lead director) indépendant et fort.

La rémunération des administrateurs de sociétés a continué de croître significativement. Les CA évaluent différentes approches à la compensation des administrateurs. Ainsi, on élimine de plus en plus les jetons de présence pour les réunions et les conférences téléphoniques. La rémunération des administrateurs s’est accrue de 17 % de 2012 à 2016 tandis que celle des PDG a augmenté de 10 % pendant la même période.

ISS a produit plusieurs études sur les tendances en matière de limite des mandats (tenure), du renouvellement des administrateurs du CA et de l’importance de la diversité. Si le sujet vous intéresse, l’auteur vous réfère à plusieurs études américaines et mondiales.

Bonne lecture !

U.S. Board Practices

 

This year’s Board Practices Study focuses not only on longstanding issues traditionally covered, but on those which have driven increased shareholder interest in the boardroom over the past several years. Governance continues to evolve, but investor focus in recent years has been particularly pointed as new concerns have emerged, and the ways in which companies address those concerns adapts to meet market demands. Particular focus has been placed on the role of the board as a representative of shareholders at a company, and how the board’s structure and practices promulgate this responsibility. As always, this study provides a snapshot of these facets of public company boards in the S&P 1500 for investors and issuers to compare and contrast.

 

Investors are continuing to push for board accountability

 

The pyroclastic spread of proxy access over the past two years has arguably been the most prominent governance story in the United States. In two short years, the S&P went from having only a handful of companies with proxy access, to having over half its constituents offering shareholders the right. Proxy access is also starting to show up in shareholder proposals at smaller firms; as of March 14, ISS is tracking a dozen such proposals at S&P 400 companies.

 

Image associée
Advisory Board Best Practices: Roles and Advice

 

Proxy access is the most recent chapter in the much longer story of shareholders seeking board accountability. The next chapters are underway, with investors focusing on board self-regulation practices and measures, such as director tenure and board refreshment, board diversity, board evaluations, mandatory retirement ages, and more. Some of these are showing promise—such as board refreshment and continuing progress on gender diversity—while others are lagging, such as non-gender measures of board diversity.

Central to these concerns is shareholders’ desire that boards develop the skills, expertise, awareness, and experience to accurately assess and effectively manage emerging risks, such as cyber and environmental risks, and ensure that boards are constantly searching for weaknesses (and, when and where appropriate, soliciting external help to identify blind spots).

 

Traditional concerns still exist, but companies are making progress

 

More traditional approaches to increasing accountability, such as majority vote standards and annual elections in the director election process—features that are near-ubiquitous in the largest companies—have been adopted in greater frequency by smaller companies. Many problematic governance practices, such as poison pills, are also increasingly rare.

 

Investors are more accepting of alternative independent board leadership structures

 

Demonstrating that governance is both a give and take endeavor, investors are more accepting of alternative forms of independent board leadership. Whereas investors have historically favored independent chairs, many are increasingly comfortable with an alternative structure whereby a strong and empowered lead independent director counterbalances a combined chair/CEO.

 

Director compensation increased sharply

 

A new feature in this year’s study is an evaluation of director pay covering the preceding five years. While compensation disclosure for non-employee directors is not new itself, the rules and guidelines governing director pay disclosure have only recently standardized. Beginning in December 2006, SEC rules required the disclosure of director pay in a standardized table format. This disclosure increased transparency and comparability between companies. Additionally, both the NYSE and NASDAQ require that boards consider director pay when determining director independence for purposes of meeting listing requirements.

Director compensation has received increased scrutiny in recent years, particularly given rising pay levels and high-profile shareholder lawsuits alleging excessive pay. Amid this atmosphere, many companies have taken a proactive approach to director compensation programs, mainly through altering equity plans or, in a few rare instances, introducing ballot items.

As companies weigh the potential benefits of changing director pay structures, median pay continues to rise. In fact, non-employee director compensation grew 17 percent between 2012 and 2016, while median CEO pay in the S&P 500 (reported in ISS’ 2016 US Compensation Postseason Report) rose by less than 10 percent. One positive development is the streamlining observed among director compensation programs. For example, the elimination of meeting and telephonic meeting fees in many compensation structures.

 

Increased scrutiny of certain board practices has necessitated a more detailed review

 

Previous versions of the board study included an in-depth snapshot of new-director demographics and trends, such as tenure, refreshment, and diversity. As these components of board composition have become a significant part of the governance conversation, ISS has produced in-depth studies on each of these issues.

For a vast and comprehensive look at board refreshment trends in the U.S., please see the joint ISS/IRRC study, Board Refreshment Trends at S&P 1500 Firms.

For a look at gender parity advancement on boards in the U.S. and around the world, please see the April 2016 joint study carried out by ISS and European Women on Boards, Gender Diversity on European Boards—Realizing Europe’s Potential: Progress and Challenges, and ISS’ December 2016 study, Gender Diversity on Boards—A Review of Global Trends.

The complete publication is available here.

_____________________________________

*Rob Yates is Vice President at Institutional Shareholder Services, Inc. This post is based on an ISS publication by Mr. Yates, Rachel Hedrick, and Andrew Borek.

L’histoire récente des courants de pensée en gouvernance aux É.U.


Aujourd’hui, je ne peux passer sous silence la petite histoire de l’évolution de la pensée en gouvernance publiée par , professeur à la George Washington University Law School.

Ce court article a été publié sur le site du HLS Forum. Il décrit les grands courants de pensée et met l’accent sur les publications des bonzes universitaires américains.

Je suis assuré que cette brève chronologie des événements, à compter de 1976, vous donnera une vue d’ensemble utile de l’évolution de la discipline.

Bonne lecture !

The Ivory Tower on Corporate Governance

 

In 1976, [Directors & Boards]’s founding year, two influential academic works in corporate governance appeared: Berkeley law professor Melvin Eisenberg urged transforming the board from an advisory role to a monitoring model and mandating significant internal control systems, while University of Rochester economists Michael Jensen and William Meckling portrayed the firm as a nexus of contracts whose optimal design is for participants to choose.

 

These contrasting visions—obligatory uniformity versus free tailoring—have defined the field since, setting the boundaries of debate and helping participants think through positions. Into the early 1980s, the Eisenberg view dominated, with Columbia University law professor William Cary urging preemptive federal oversight of the field, traditionally handled by state law, and a generally pro-regulatory atmosphere imposing fiduciary mandates on independent directors and board committees.

But the nexus of contracts school soon ascended to greater influence, through the 1990s, after law professors such as Frank Easterbrook (now a judge) and Daniel Fischel, both of the University of Chicago, explored how the separation of ownership from control is a problem of agency costs, best addressed by contractual devices geared to maximizing shareholder value. Rather than federal mandates, states should experiment to offer a menu of tools for different corporations to tailor. Yale University law professor (also now judge) Ralph Winter theorized that competition among states for corporate charters constrained managers to promote shareholder interests.

While normative corporate governance scholarship has divided between the pro- and anti-regulatory camps of the 1970s and 1980s, the best academics learned from their intellectual opponents to refine stances and often forge consensus. For example, though assessments of the deal decade’s disruptive takeovers and comparative studies of non-U.S. practice found a place for non-shareholder constituents in corporate governance, a shareholder primacy norm nevertheless took root.

Even as both schools of thought contributed to the discourse, each had their heyday when current events cut in their favor. So the 1990s boom was a time of great enthusiasm for the economic approach, adding a productive trend of increasingly sophisticated empirical research, including on the value of state competition in corporate law. After the burst, however, and as widespread accounting fraud was revealed, scholars cited Eisenberg to diagnose failures to monitor and control—and prescribed cures found in the Sarbanes-Oxley Act (SOX). An industry-specific version of the dynamic transpired after the financial crisis, culminating in the Dodd-Frank Act.

In each case, scholarship was diverse, as pragmatic centrist resolution of pending challenges, exemplified by Columbia’s John Coffee, contended with cries on both normative sides of either too little or too much regulation (Yale’s Roberta Romano called SOX “quack governance”). Such episodes updated the Cary-Winter debate: full-scale federal preemption is probably dead but, as Harvard University law professor Mark Roe explained, less due to state competition than the threat to states of incremental federal incursion, a la SOX and Dodd-Frank.

Since 1976, scholars have helped shift power from managers to owners, especially institutional investors. Today, scholars such as Harvard Law professor Lucian Bebchuk urge continued expansion of shareholder power, while others, like UCLA law professor Stephen Bainbridge, observe and support a propensity toward director primacy instead. In the balance is the fate of shareholder activism, which though novel in some ways, at bottom raises issues debated for 40 years, particularly agency cost mitigation. Plus ça change, plus c’est la même chose.

Colloque sur la gouvernance et la performance | Une perspective internationale


C’est avec plaisir que je partage l’information et l’invitation à un important colloque intitulé « Gouvernance et performance : une perspective internationale » qui aura lieu à l’Université McGill les 11 et 12 mai 2017.

C’est mon collègue, le professeur Félix ZOGNING NGUIMEYA, Ph.D., Adm.A., qui est le responsable de l’organisation de ce colloque en gouvernance à l’échelle internationale.

À la lecture du programme, vous constaterez que les organisateurs n’ont ménagé aucun effort pour apporter un éclairage très large de ce phénomène.

Ce colloque traite des récents développements et des sujets émergents en matière de gouvernance. La gouvernance, comme thématique transversale, est abordée dans tous ses aspects : gouvernance d’entreprise, gouvernance économique, gouvernance publique, en lien avec la création de valeur ou la performance des organisations, des politiques ou des programmes concernés. Dans chacun des contextes, les travaux souligneront l’effet des mécanismes de gouvernance sur la performance des organisations, institutions ou collectivités.

La perspective internationale du colloque a pour but d’examiner les modèles et structures de gouvernance présents dans différents pays et dans les différentes organisations, selon que ces modèles dépendent fortement du système juridique, du modèle économique et social, ainsi que le poids relatif des différentes parties prenantes. Les contributions sont donc attendues des chercheurs et professionnels de plusieurs champs disciplinaires, notamment les sciences économiques, les sciences juridiques, les sciences politiques, la comptabilité, la finance, l’administration et la stratégie.

Je vous invite à consulter le site web du colloque : https://gouvernance.splashthat.com/

Vous trouverez le programme détaillé du colloque à l’adresse suivante : http://www.acfas.ca/evenements/congres/programme/85/400/449/c

Compte rendu hebdomadaire de la Harvard Law School Forum on Corporate Governance | 9 mars 2017


Voici le compte rendu hebdomadaire du forum de la Harvard Law School sur la gouvernance corporative au 9 mars 2017.

J’ai relevé les principaux billets.

Bonne lecture !

 

harvard_forum_corpgovernance_small

 

  1. Uncapping Executive Pay
  2. The Trajectory of American Corporate Governance: Shareholder Empowerment and Private Ordering Combat
  3. Focus on Annual Incentives: Metrics, Goals, and More
  4. A Look at Board Composition: How Does Your Industry Stack Up?
  5. Teaming Up and Quiet Intervention: The Impact of Institutional Investors on Executive Compensation Policies
  6. The Regulatory and Enforcement Outlook for Financial Institutions in 2017
  7. The Materiality Gap Between Investors, the C-Suite and Board
  8. Pilot CEOs and Corporate Innovation
  9. Shareholder Engagement: An Evolving Landscape
  10. State Street Global Advisors Announces New Gender Diversity Guidance

The Directors Toolkit 2017 | Un document complet de KPMG sur les bonnes pratiques de gouvernance et de gestion d’un CA


Voici la version 4.0 du document australien de KPMG, très bien conçu, qui répond clairement aux questions que tous les administrateurs de sociétés se posent dans le cours de leurs mandats.

Même si la publication est dédiée à l’auditoire australien de KPMG, je crois que la réalité réglementaire nord-américaine est trop semblable pour se priver d’un bon « kit » d’outils qui peut aider à constituer un Board efficace.

C’est un formidable document électronique interactif. Voyez la table des matières ci-dessous.

J’ai demandé à KPMG de me procurer une version française du même document, mais il ne semble pas en exister.

Bonne lecture !

The Directors’ Toolkit 2017 | KPMG

 

 

 

Now in its fourth edition, this comprehensive guide is in a user friendly electronic format. It is designed to assist directors to more effectively discharge their duties and improve board performance and decision-making.

Key topics

  1. Duties and responsibilities of a director
  2. Oversight of strategy and governance
  3. Managing shareholder and stakeholder expectations
  4. Structuring an effective board and sub-committees
  5. Enabling key executive appointments
  6. Managing productive meetings
  7. Better practice terms of reference, charters and agendas
  8. Establishing new boards.

What’s new in 2017

In this latest version, we have included newly updated sections on:

  1. managing cybersecurity risks
  2. human rights in the supply chain.

Register

Register here for your free copy of the Directors’ Toolkit.

Se poser les bonnes questions en cette période incertaine | Deloitte


Deloitte a récemment publié un document très important intitulé Courage under fire : Embracing disruption (en anglais seulement) dans lequel trois administrateurs chevronnés échangent leurs points de vue sur les grandes perturbations que les organisations mondiales sont appelées à connaître en 2017.

Les questions posées sont les suivantes :

Étant donné les attentes croissantes envers les conseils d’administration, quelles devraient être les priorités des administrateurs ?

Les appels à une meilleure communication de l’information ne cessent de se faire entendre. Comment les conseils réagissent-ils ?

Les organisations sont nombreuses à subir des perturbations numériques. Est-ce un risque incontrôlable de plus à gérer ?

Les perturbations numériques créent beaucoup d’incertitude. Les conseils d’administration réussissent-ils à bien s’adapter à cette réalité ?

Vous pouvez télécharger le document ci-dessous.

Bonne lecture !

Courage under fire : Embracing disruption |  Deloitte

 

 

Dix thèmes majeurs pour les administrateurs de sociétés en 2017


Aujourd’hui, je partage avec vous la liste des dix thèmes majeurs en gouvernance que les auteurs Kerry E. Berchem* et Rick L. Burdick* ont identifiés pour l’année 2017.

Vous êtes assurément au fait de la plupart de ces dimensions, mais il faut noter l’importance accrue à porter aux questions stratégiques, aux changements politiques, aux relations avec les actionnaires, à la cybersécurité, aux nouvelles réglementations de la SEC, à la composition du CA, à l’établissement de la rémunération et aux répercussions possibles des changements climatiques.

sans-titre-gump

Afin de mieux connaître l’ampleur de ces priorités de gouvernance pour les administrateurs de sociétés, je vous invite à lire l’ensemble du rapport publié par Akin Gump.

Bonne lecture !

Dix thèmes majeurs pour les administrateurs de sociétés en 2017

 

top-10

 

1. Corporate strategy: Oversee the development of the corporate strategy in an increasingly uncertain and volatile world economy with new and more complex risks

Directors will need to continue to focus on strategic planning, especially in light of significant anticipated changes in U.S. government policies, continued international upheaval, the need for productive shareholder relations, potential changes in interest rates, uncertainty in commodity prices and cybersecurity risks, among other factors.

2. Political changes: Monitor the impact of major political changes, including the U.S. presidential and congressional elections and Brexit

Many uncertainties remain about how the incoming Trump administration will govern, but President-elect Trump has stated that he will pursue vast changes in diverse regulatory sectors, including international trade, health care, energy and the environment. These changes are likely to reshape the legal landscape in which companies conduct their business, both in the United States and abroad.

With respect to Brexit, although it is clear that the United Kingdom will, very probably, leave the European Union, there is no certainty as to when exactly this will happen or what the U.K.’s future relationship, if any, with the EU will be. Once the negotiations begin, boards will need to be quick to assess the likely shape of any deal between the U.K. and the EU and to consider how to adjust their business model to mitigate the threats and take advantage of the opportunities that may present themselves.

3. Shareholder relations: Foster shareholder relations and assess company vulnerabilities to prepare for activist involvement

The current environment demands that directors of public companies remain mindful of shareholder relations and company vulnerabilities by proactively engaging with shareholders, addressing shareholder concerns and performing a self-diagnostic analysis. Directors need to understand their company’s vulnerabilities, such as a de-staggered board or the lack of access to a poison pill, and be mindful of them in any engagement or negotiation process.

4. Cybersecurity: Understand and oversee cybersecurity risks to prepare for increasingly sophisticated and frequent attacks

As cybercriminals raise the stakes with escalating ransomware attacks and hacking of the Internet of Things, companies will need to be even more diligent in their defenses and employee training. In addition, cybersecurity regulation will likely increase in 2017. The New York State Department of Financial Services has enacted a robust cybersecurity regulation, with heightened encryption, log retention and certification requirements, and other regulators have issued significant guidance. Multinational companies will continue implementation of the EU General Data Protection Regulation requirements, which will be effective in May 2018. EU-U.S. Privacy Shield will face a significant legal challenge, particularly in light of concerns regarding President-elect Trump’s protection of privacy. Trump has stated that the government needs to be “very, very tough on cyber and cyberwarfare” and has indicated that he will form a “cyber review team” to evaluate cyber defenses and vulnerabilities.

5. SEC scrutiny: Monitor the SEC’s increased scrutiny and more frequent enforcement actions, including whistleblower developments, guidance on non-GAAP measures and tougher positions on insider trading

2016 saw the Securities and Exchange Commission (SEC) award tens of millions of dollars to whistleblowers and bring first-of-a-kind cases applying new rules flowing from the protections now afforded to whistleblowers of potential violations of the federal securities laws. The SEC was also active in its review of internal accounting controls and their ability to combat cyber intrusions and other modern-day threats to corporate infrastructure. The SEC similarly continued its comprehensive effort to police insider trading schemes and other market abuses, and increased its scrutiny of non-GAAP (generally accepted accounting principles) financial measure disclosures. 2017 is expected to bring the appointment of three new commissioners, including a new chairperson to replace outgoing chair Mary Jo White, which will retilt the scales at the commissioner level to a 3-2 majority of Republican appointees. 2017 may also bring significant changes to rules promulgated previously under Dodd-Frank.

6. CFIUS: Account for CFIUS risks in transactions involving non-U.S. investments in businesses with a U.S. presence

Over the past year, the interagency Committee on Foreign Investment in the United States (CFIUS) has been particularly active in reviewing—and, at times, intervening in—non-U.S. investments in U.S. businesses to address national security concerns. CFIUS has the authority to impose mitigation measures on a transaction before it can proceed, and may also recommend that the President block a pending transaction or order divestiture of a U.S. business in a completed transaction. Companies that have not sufficiently accounted for CFIUS risks may face significant hurdles in successfully closing a deal. With the incoming Trump administration, there is also the potential for an expanded role for CFIUS, particularly in light of campaign statements opposing certain foreign investments.

7. Board composition: Evaluate and refresh board composition to help achieve the company’s goals, increase diversity and manage turnover

In order to promote fresh, dynamic and engaged perspectives in the boardroom and help the company achieve its goals, a board should undertake focused reassessments of its underlying composition and skills, including a review and analysis of board tenure, continuity and diversity in terms of upbringing, educational background, career expertise, gender, age, race and political affiliation.

8. Executive compensation: Determine appropriate executive compensation against the background of an increased focus on CEO pay ratios

Executive compensation will continue to be a hot topic for directors in 2017, especially given that public companies will soon have to start complying with the CEO pay ratio disclosure rules. Recent developments suggest that such disclosure might not be as burdensome or harmful to relations with employees and the public as was initially feared.
The SEC’s final rules allow for greater flexibility and ease in making this calculation, and a survey of companies that have already estimated their ratios indicates that the ratio might not be as high, on average, as previously reported.

9. Antitrust scrutiny: Monitor the increased scrutiny of the antitrust authorities and the implications on various proposed combinations

Despite the promise of synergies and the potential to transform a company’s future, antitrust regulators have become increasingly hostile toward strategic transactions, with the Department of Justice and Federal Trade Commission suing to block 12 transactions since 2015. Although directors should brace for a longer antitrust review, to help navigate the regulatory climate, work upfront can dramatically improve prospects for success. Company directors should develop appropriate deal rationales and, with the benefit of upfront work, allocate antitrust risk in the merger agreement. Merger and acquisition activity may also benefit from the Trump administration, taking, at least for certain industries, a less-aggressive antitrust enforcement stance.

10. Environmental disasters and contagious diseases: Monitor the impact of increasingly volatile weather events and contagious disease outbreaks on risk management processes, employee needs and logistics planning

While the causes of climate change remain a political sticking point, it cannot be debated that volatile weather events, environmental damage and a rise in the diseases that tend to follow, are having increasingly adverse impacts on businesses and markets. Businesses will need to account for, or transfer the risk of, the increasing likelihood of these impacts. The SEC recently announced investigations into climate-risk disclosures within the oil and gas sector to ensure that they adequately allow investors to account for these effects on the bottom line. The growing number of shareholder resolutions and suits addressing climate change confirm that investors want this information, regardless of the position of the next administration.

The complete publication is available here.

*Kerry E. Berchem is partner and head of the corporate practice, and Rick L. Burdick is partner and chair of the Global Energy & Transactions group, at Akin Gump Strauss Hauer & Feld LLP.

Principales tendances en gouvernance à l’échelle internationale en 2017


Voici un excellent résumé des principales tendances en gouvernance à l’échelle internationale. L’article paru sur le site de la Harvard Law School Forum est le fruit des recherches effectuées par Rusty O’Kelley, membre de CEO and Board Services Practice, et Anthony Goodman, membre de Board Effectiveness Practice de Russell Reynolds Associates.

Les auteurs ont interviewé plusieurs investisseurs activistes et institutionnels ainsi que des administrateurs de sociétés publiques et des experts de la gouvernance afin d’appréhender les tendances qui se dessinent pour les entreprises cotées en 2017.

Parmi les conclusions de l’étude, notons :

  1. Le besoin de se coller plus étroitement à des normes de gouvernance universellement acceptées ;
  2. La nécessité de bien se préparer aux nouveaux risques et aux nouvelles opportunités amenées par la montée des gouvernements populistes de droite ;
  3. Une responsabilité accrue des administrateurs de sociétés pour la création de valeur à long terme ;
  4. L’importance d’une solide compréhension des changements globaux eu égard à l’exercice d’une bonne gouvernance, notamment dans les états suivants :

–  États-Unis

–  Union européenne

–  Japon

–  Inde

–  Brésil

Cette lecture nous donne une perspective globale des défis qui attendent les administrateurs et les CA de grandes sociétés publiques en 2017.

Bonne lecture !

 

Global and Regional Trends in Corporate Governance for 2017

 

Russell Reynolds Associates recently interviewed numerous institutional and activist investors, pension fund managers, public company directors and other governance professionals about the trends and challenges that public company boards will face in 2017. Our conversations yielded a wide array of perspectives about the forces that are driving change in the corporate governance landscape.

 

accesaumarche

 

 

The changing pressures and dynamics that boards will face in the coming year are diverse and significant in their impact. Institutional investors will continue their push for more uniform standards of corporate governance globally, while also increasing their expectations of the role that boards should play in responsibly representing shareholders. Political uncertainty and the surprise results of the US Presidential and “Brexit” votes may require that boards take a more active role in scenario planning and helping management to navigate increasingly costly risks. The movement for companies and investors to adopt a more long-term orientation has gained momentum, with several large institutional investors now pressuring boards to demonstrate that they are actively involved in guiding a company’s strategy for long-term value creation.

Higher Expectations and Greater Alignment Around Corporate Governance Norms

Continuing the trend from last year, large institutional investors and pension funds are pushing for more aligned approaches to corporate governance across borders to support long-term value creation. Regulators are responding, particularly in emerging economies and those with nascent corporate governance regimes. Recent reforms in Japan, India and Brazil have borrowed heavily from the US or UK models. Where regulators have not yet caught up to or agreed with investor expectations, institutional investors are engaging companies directly to advocate for the governance reforms they want to see. These investors also expect more from their boards than ever before and are increasingly willing to intervene when they do not feel they are being responsibly represented in the boardroom.

Corporate Governance in an Era of Political Uncertainty

Populist political movements have gained broad support in several countries around the world, contributing to uncertainty about the future regulatory and political environments of two of the world’s five largest economies. In the UK, the Conservative government has signaled potential support for shareholder influence over executive pay and disclosure of the CEO-employee pay ratio. In the US, President-elect Trump has demonstrated a willingness to “name and shame” specific companies that he perceives to have benefited unfairly from trade deals or moved jobs overseas. Boards must be prepared to navigate these new reputational risks and intense media scrutiny, and review management’s assumptions about the political implications of certain decisions.

Increasing Board Accountability for Long-Term Value Creation

Efforts to encourage a more long-term market orientation have intensified in recent years, with several prominent business leaders and investors, most notably Larry Fink, Chairman and CEO of BlackRock, urging companies to focus on sustained value creation rather than maximizing short-term earnings. In his 2016 letter to chief executives of S&P 500 companies and large European corporations, Mr. Fink specifically called for increased board oversight of a company’s strategy for long-term value creation, noting that BlackRock’s corporate governance team would be looking for assurances of this oversight when engaging with companies.

Global and Regional Trends in Corporate Governance in 2017

Based on our global experience as a firm and our interviews with experts around the world, we believe that public companies will likely face the following trends in 2017:

  1. Increasing expectations around the oversight role of the board, to include greater oversight of strategy and scenario planning, investor engagement, and executive succession planning.
  2. Continued focus on board refreshment and composition, with particular attention being paid to directors’ skill profiles, the currency of directors’ knowledge, director overboarding, diversity, and robust mechanisms for board refreshment that go beyond box-ticking exercises.
  3. Greater scrutiny of company plans for sustained value creation, as concerns increase that activist settlements and other market forces are causing short-term priorities to compromise long-term interests.
  4. Greater focus on Environmental, Social and Governance (ESG) issues, and in particular those related to climate change and sustainability, as industries beyond the extractive sector begin to feel investor pressure in this area.

We explore these trends and their implications for five key regions and markets: the United States, the European Union, India, Japan and Brazil.

United States

The surprise election of Donald Trump has increased regulatory and legislative uncertainty. Certain industries, such as financial services, natural resources and healthcare, may face less pressure and government scrutiny. We expect nominees to the Securities and Exchange Commission (SEC) to be less supportive of the increased disclosure requirements around executive pay and diversity. However, public pension funds and institutional investors will continue to push governance issues through increased specific engagement with individual companies.

  1. Investors continue to push boards to demonstrate that they are taking a strategic and proactive approach to board refreshment. In particular, they are looking for indicators that boards are adding directors with the skill sets necessary to complement the company’s strategic direction, and ensuring a diversity of backgrounds and perspectives to guide that strategy. Some investors see tenure and age limits as too blunt an instrument, preferring internal or external board evaluations to ensure that every director is contributing effectively. Several large institutional investors will continue to push boards to conduct external board evaluations by third parties to increase the quality of feedback and improve governance.
  2. Ongoing fallout from the Wells Fargo scandal will increase pressure on boards to split the CEO/Chair role, particularly in the financial services sector. Given investor pressure, particularly from pension funds, we also anticipate increased demand for clawbacks, a trend that is likely to go beyond the banking sector.
  3. We expect that 2017 will be a significant year for ESG issues, and in particular those related to climate change and sustainability. Industries beyond the extractive sector will begin to feel investor pressure in this area. While this pressure is being exerted by a number of stakeholder groups, the degree to which the baton has been picked up by mainstream institutional investors is notable.
  4. Increased attention on climate risk is also changing the way many companies and investors think about materiality and disclosure, which will have significant implications for audit committees. Michael Bloomberg is currently leading the Financial Stability Board’s Task Force on Climate-related Financial Disclosures, which will seek to develop consistent, voluntary standards for companies to provide information about climate-related financial risk. The Task Force’s recommendations are expected in mid-2017.
  5. Boards will increasingly be expected to ensure sufficient succession planning not just at the CEO level but in other key C-suite roles as well, as investors want to know that boards are actively monitoring the pipeline of talent. Additionally, there is a relatively new trend of some boards conducting crisis management exercises as a supplement to the activism risk assessment we have seen over the past couple of years.
  6. In the event that all or parts of the Dodd-Frank regulations are repealed, investors will likely turn to private ordering—seeking to persuade companies to change their by-laws—to keep the elements that are most important to them (e.g. “say on pay”). Current SEC rules require that companies begin disclosing their CEO-employee pay ratio in 2018, but we believe this to be a likely target for repeal.

European Union

Across many countries in Europe, the push for board and management diversity will continue apace in 2017. Executive pay continues to be the focus of government, investor and media attention with various proposals for reining in compensation. Work being done in the UK on board oversight of corporate culture has the potential to spill across European borders and travel farther afield over the next few years.

  1. Many countries in Europe continue to push ahead with encouraging gender diversity at the board level, as national laws regulating the number of female directors proliferate. In the UK, the Hampton-Alexander Review recommended that the Corporate Governance Code be amended to require FTSE 350 companies to disclose the gender balance of their executive committees in their annual report.
  2. After ebbing slightly in 2014, activism has made a comeback in Europe: whereas 51 companies were targeted in 2014, 64 were targeted in the first half of 2016 alone. We anticipate that European activists will continue to apply less aggressive and more collaborative tactics than those seen in the US. Additionally, we expect to see US and European institutional investors to be supportive of European activist investors, particularly those who are self-described “constructive activists”, who take a less aggressive approach than their US counterparts.
  3. The EU is expected to amend its Shareholder Rights Directive in 2017 to include an EU-wide “say on pay” framework that would give shareholders the right to regular votes on prospective and retrospective remuneration. While these votes are not expected to be binding, the directive does require that pay be based on a shareholder-approved policy and that issuers must address failed votes. Germany saw a sharp increase in dissents on “say on pay” proposals this year, jumping from 8% to over 20%. In France, the government is currently debating whether to make “say on pay” votes binding, spurred by the public outcry about the Renault board’s decision to confirm the CEO’s 2015 compensation, despite a rejection by a majority of shareholders.
  4. The UK government is expected to continue its push for compensation practice reform in 2017, having recently published a series of proposed policies, including mandatory disclosure of the CEO pay ratio, employee representation in executive compensation decisions, and making shareholder votes on executive compensation binding. We also expect continued strong media coverage and related public opposition to large public company pay packages, which could put UK boards in the spotlight.
  5. In Germany, the ongoing fallout from the Volkswagen scandal is the likely impetus for proposed amendments to the corporate governance code that would underscore boards’ obligations to adhere to ethical business practices. The proposed amendments also acknowledge the increasingly common practice of investor engagement with the supervisory board, and recommend that the supervisory board chair be prepared to discuss relevant topics with investors.
  6. In the UK, boards will be focused on implementing the recommendations of the recent Financial Reporting Council (FRC) report on corporate culture and the role of boards, which makes the case that long-term value creation is directly linked to company culture and the role of business in society.

India

Indian boards continue to struggle with the implementation of many of the major changes to corporate governance practices required by the 2013 Companies Act, but reform is progressing. While the complete fallout from the recent Tata leadership imbroglio is not yet clear, it will almost certainly reverberate through the Indian corporate governance landscape for years to come.

  1. Recent regulatory changes have increased the scope of responsibilities for the Nomination and Remuneration Committee, requiring boards to ensure that directors have the right set of skills to deliver on these new responsibilities. Increased emphasis on CEO succession planning and board evaluations have necessitated that Committee members become more fluent in these governance processes and methodologies, particularly as the requirement to report on them annually has increased the spotlight on the board’s role in these processes.
  2. The introduction in 2013 of a mandatory minimum of at least one female director for most listed companies has increased India’s gender diversity at the board level to one of the highest rates in Asia, with 14% of all directorships currently held by women. However, concerns persist about the potential for “tokenism”, as a sizeable portion of the women appointed come from the controlling families of the company.
  3. India has also attempted to integrate ESG and Corporate Social Responsibility (CSR) issues at the board level, having mandated that every board establish a CSR committee and that the company spend 2% of net profits on CSR activities. However, companies will need to ensure that their approach to CSR amounts to more than a box-ticking exercise if they want to attract the support of the growing cadre of ESG-focused investors.
  4. Boards are increasingly expected to take a more active role in risk management, particularly cybersecurity risks. Boards should also ensure that their companies are adequately anticipating and responding to cybersecurity threats.
  5. Changes to the 2013 Companies Act have considerably enhanced the duties and liabilities of directors, along with strict penalties for any breach of these duties and the potential for class action lawsuits against individual directors. While potentially helpful in increasing director accountability, these changes also significantly increase the personal risk that a director assumes when joining a board.

Japan

Japan’s Corporate Governance Code was reformulated in 2015, as part of the “Abenomics” push for structural reforms. Japanese companies continue to implement the corporate governance principles resulting from the new regulations, with many hoping that the adoption of more Western norms will help prompt the return of foreign investors.

  1. The overhaul of Japan’s corporate governance model in 2015 has begun to yield significant results, as 96% of Japanese boards now have at least one outside director and 78% have at least two. However, Japan’s famously deferential corporate culture may make it difficult for boards to unlock the value of these independent perspectives, as seniority and family ownership often still take precedence.
  2. Increasing investor interest in the Japanese market is likely to increase pressure on boards to adopt more Western norms of corporate governance. CalPERS, the California public pension fund, recently began an explicit program of engagement in Japan, their second-largest equity market, in order to encourage the adoption of more Western norms, including increased board independence and diversity, defining narrower standards of independence, and increasing the disclosure of director qualifications.
  3. Gender diversity remains a challenge for Japanese boards, with only 3% of directorships held by women. However, women account for 22% of outside directors, suggesting that gender diversity on boards will likely continue to increase as the appointment of independent directors becomes more common. A new law, introduced in April 2016, now requires companies with more than 300 employees to publish data on the number of women they employ and how many hold management positions. We anticipate this increased scrutiny at all levels of the company to have a knock-on effect for boards.
  4. While other elements of the new Corporate Governance Code have seen near unanimous compliance, only 55% of listed companies have complied with the stipulation to conduct formal board evaluations. Moreover, the quality and format of the evaluations that are occurring vary significantly, with many adopting a self-evaluation process that amounts to little more than a box-ticking exercise.
  5. The common Japanese practice of former executives and chairs remaining in “advisor” roles beyond the end of their formal tenure is now coming under increasing scrutiny. ISS will now generally vote against amendments to create new advisory positions, unless the advisors will serve on the board and therefore be held accountable to shareholders.

Brazil

Brazil’s corporate governance regime has evolved significantly in the last decade, as various regulatory entities have sought to apply greater protections for minority shareholders and better align standards with other Western models to attract greater foreign investment.

  1. As Brazil continues to navigate the fallout of the Petrobras scandal, many are questioning how the mechanisms for encouraging and enforcing investor stewardship and corporate governance can be strengthened.
  2. AMEC, Brazil’s association of institutional investors, recently released the country’s first Investor Stewardship Code, calling on investors to adhere to seven principles, including implementing mechanisms to manage conflicts of interest, taking ESG issues into account, and being active and diligent in the exercise of voting rights.
  3. In an effort to address the high levels of absenteeism among institutional investors at general meetings, Brazil’s Security and Exchange Commission (CVM) will, beginning in 2017, require that listed companies allow shareholders to vote by mail or email, rather than requiring that they (or their proxy) be physically present to cast their vote. Brazilian companies, and their boards, should be prepared for the increased requests for investor engagement that are likely to result from the more active participation of institutional investors in the voting process.
  4. New regulations for the country’s Novo Mercado segment of listed companies will be announced in 2017. Highlights of the proposed changes include the required establishment of audit, compensation and appointment committees, a minimum of two independent directors, and more stringent disclosure of directors’ relationships to related companies and other parties.

La tendance est à la tenue des assemblées annuelles des actionnaires en ligne


Les assemblées annuelles des actionnaires ont de plus en plus tendance à se tenir de manière virtuelle. Nous sommes d’avis, qu’à l’avenir, avec le développement des technologies de l’information, toutes les réunions se feront exclusivement en ligne.

Nous n’en sommes encore qu’au tout début de ce changement, mais il semble clair que les assemblées annuelles tenues sur place ou de manière hybride (virtuelle et sur place) céderont le pas aux rencontres en ligne.

L’article publié par Lisa A. Fontenot et Linda Dang associées de la firme Gibson, Dunn & Crutcher et paru sur le site du Harvard Law School Forum, fait le point sur les tenants et aboutissants de cette nouvelle approche à la conduite des réunions annuelles des actionnaires.

Parmi les avantages de l’utilisation de l’approche en ligne, mentionnons l’accroissement de la participation des actionnaires et la diminution des coûts pour l’ensemble des opérations.

Par contre, à ce stade-ci, plusieurs grandes organisations de défenses des actionnaires et plusieurs actionnaires activistes sont farouchement opposés à cette façon de procéder parce que la relation face à face avec les dirigeants et les administrateurs leur apparaît essentielle à la bonne gouvernance, mais surtout parce qu’elles croient que les entreprises auront tendance, et même intérêt, à gérer les questions des actionnaires à leur avantage.

Les auteures discutent en profondeur des bénéfices et des défis posés par cette problématique. Elles indiquent comment procéder pour mettre en place ces réunions virtuelles en s’appuyant sur les principes élaborés par un groupe de travail constitué d’un grand nombre de parties prenantes : « Best Practices Working Group for Online Shareholder Participation in Annual Meetings ».

Je vous souhaite une bonne lecture.

Annual Shareholder Meeting: Selected Considerations for a Virtual-Only Meeting

 

ag-2016-banner

 

In recent years, an increasing number of companies have opted to hold annual shareholder meetings exclusively online—i.e., a virtual meeting without a corresponding physical meeting—rather than a virtual meeting in tandem with a physical meeting (the so-called “hybrid” approach). While hybrid approaches are generally welcome or not opposed by investors and activist shareholders, some have criticized companies holding virtual-only annual meetings, asserting that virtual meetings limit the opportunity for shareholder participation in the meeting as well as engagement with management and the board. In spite of these criticisms, just as corporate use of the internet and social media to communicate with stakeholders is growing, virtual meetings are on the rise.

In 2001, Inforte Corporation was the first company to hold a virtual-only meeting, following Delaware’s 2000 amendment to its General Corporation Law permitting such meetings. Though virtual meetings are still very much a minority of total annual shareholder meetings, more and more companies have been holding virtual meetings over the last few years: 27 virtual meetings in 2012, 35 in 2013, 53 in 2014 and 90 in 2015. Broadridge Financial Solutions, an investor communications firm and a provider of a virtual meeting platform, reported 136 virtual meetings held in 2016 to date, with particular popularity with recently-publicly listed companies and technology companies. These include companies, large and small, such as Intel, HP Inc., Hewlett Packard Enterprise, Fitbit, Yelp, NVIDIA, Sprint, Lululemon, Graco, GoPro, Rambus, El Pollo Loco and Herman Miller.

Considerations for a Virtual Meeting

Benefits of Virtual Meetings

Virtual meetings present many potential advantages for companies and their shareholders. Advocates suggest that virtual meetings will increase shareholder participation as compared to physical-only meetings because of improved access—shareholders who cannot attend in person due to location or other reasons can attend virtually and do not have to incur the time and costs of travel to a physical meeting. As an example, one company had only three shareholders attend its last physical meeting in 2008, while 186 shareholders attended its virtual meeting in 2009. In addition, considering that thousands of annual shareholder meetings are held within a few weeks of each other, shareholders can participate in more virtual meetings than physical meetings.

Similarly, companies may find virtual meetings appealing in their potential to reach as many shareholders as possible. Companies can also choose among different approaches to handling shareholder questions, some of which allow companies to preview and prioritize important questions, eliminate duplicative items and prepare more substantive or complete responses. Moreover, for some companies, the use of technology for the conduct of a shareholder meeting may be consistent with promoting the technology business of the company or enable a company to project a tech-savvy image.

A benefit to both shareholders and companies is the reduced cost of the annual meeting—a virtual meeting avoids the time, effort and expense of organizing a physical meeting, including reserving a large venue and arranging for appropriate personnel and materials. With companies and investors becoming increasingly global, virtual meetings can trim travel time and costs for shareholders, avoid traffic and other logistical delays and be easier to schedule amidst competing time demands. A virtual meeting may also be less disruptive to the company’s daily routine, allowing management and other employees to return to their work more quickly. In the current atmosphere where physical safety is always a concern, it is relatively easy to maintain security and control for a virtual meeting as compared to a live one. Lastly, holding the annual meeting virtually can reduce environmental impact, because there would be less travel and fewer printed materials regardless of the number of participants.

Challenges Presented by Virtual Meetings

Despite the potential advantages, some perceived challenges raised by virtual meetings cause certain institutional investors, such as the California Public Employees’ Retirement System (CalPERS), the largest U.S. public pension fund, and shareholder groups, such as the Council of Institutional Investors (CII), to oppose virtual meetings. These investors assert that virtual meetings reduce the effectiveness of shareholder participation by eliminating shareholders’ ability to meet with directors and express their concerns face-to-face. There is also concern that companies will manipulate shareholder questions to reduce any negative impact or redirect focus, by filtering, grouping, rephrasing or even ignoring questions so that companies can manage questions and their responses to advance the company viewpoints. By selecting questions ahead of time, companies could choose not to answer hard questions that would be more difficult to avoid in person. In effect, virtual meetings could potentially allow companies to limit the influence of corporate governance activists.

Companies may fear that virtual meetings lack the personal connection with shareholders and communities that in-person meetings can convey. Virtual meetings may create more uncertainty in shareholder votes because shareholders can more easily attend virtual meetings than physical meetings and thus electronically vote or change votes at the last moment while attending a virtual meeting. Especially in contested elections, the certainty of proxies received in advance of physical meetings provides more comfort for companies about the projected outcome of votes. Shareholders who can attend a meeting virtually may be less inclined to vote by proxy in advance, making voting results less predictable and making it harder for companies to gauge whether their solicitation methods are effective or need to be adjusted. In proxy contests, parties could continue solicitation efforts via e-mail up to the time of the virtual meeting, though a company’s last-minute announcements or statements may similarly be more likely to affect votes. Some companies may avoid virtual meetings because of their reluctance to make their shareholder lists available online, as required by many states for virtual meetings. Moreover, without the personal touch present when face-to-face, virtual meetings may diminish companies’ ability to resolve hostile or otherwise challenging questions as effectively as in physical meetings. Finally, to the extent that a virtual meeting broadcasts shareholder questions on a real-time basis, it could be more difficult for companies to manage disruptive participants than in a physical meeting.

Some prominent activist shareholders also oppose virtual meetings. For the 2017 proxy season, John Chevedden has submitted shareholder proposals to various companies requesting that the companies’ board of directors adopt a governance policy to initiate or restore in-person annual meetings and publicize this policy to investors. Mr. Chevedden has argued that in-person meetings serve an important function by enabling shareholders to better judge management’s performance and plans. Similarly, James McRitchie has written on his website about the negative impact of holding virtual annual meetings and advocated for shareholder proposals requiring physical meetings.

Both CalPERS and CII believe that companies “should hold shareowner meetings by remote communication (so-called ‘virtual’ meetings) only as a supplement to traditional in-person shareowner meetings, not as a substitute” and that “a virtual option, if used, should facilitate the opportunity for remote attendees to participate in the meeting to the same degree as in-person attendees.”California State Teachers’ Retirement System (CalSTRS) has also expressed a preference for a hybrid meeting, though it acknowledged that “the technology is moving.” At this time, most other major institutional investors have not taken a public stance regarding virtual meetings.

Neither Institutional Shareholder Services (ISS) nor Glass Lewis have directly opposed virtual meetings in their guidelines, although ISS has indicated that it may make adverse recommendations where a company is using virtual-meeting technology to impede shareholder discussions or proposals.

Best practices for virtual meetings are continuing to evolve as more companies hold virtual meetings, so it may be difficult to predict investor response to specific practices.

Initial Considerations in Deciding Whether to Hold a Virtual Meeting

Governing Law and Documents

If a company desires to hold its meeting virtually, it first must confirm that the law of its state of incorporation permits virtual annual meetings and the requirements applicable to such meetings. Almost half of the U.S. states, including Delaware, permit virtual meetings. However, some of these 22 states include conditions that, practically speaking, mean that virtual meetings likely would not be used—for example, California permits virtual meetings but only with the consent of each shareholder participating remotely. Seventeen states and the District of Columbia do not permit virtual meetings but do permit hybrid meetings, and 11 states require a physical location for the shareholders’ meeting while permitting remote participation.

A Delaware corporation can hold its annual meeting virtually if it complies with certain statutory requirements. The company must “implement reasonable measures” to confirm that each person voting is a shareholder or proxyholder and to provide such persons with “a reasonable opportunity to participate in the meeting and to vote,” including the ability to read or hear the meeting proceedings on a substantially concurrent basis. The company must also maintain records of votes or other actions taken by the shareholder or proxyholder.

After confirming that virtual meetings are allowed under the state law applicable to the company, the company should make note of any statutory conditions, such as disclosure or shareholder consent requirements or objection rights. For example, as noted above, a company may also be required to make its shareholder list electronically available during the meeting. A company must also confirm that its governing documents permit virtual meetings; for example, a company’s bylaws often state where annual meetings are to be held and may need amendment to provide for virtual meetings. Notably, federal securities laws do not impose restrictions on how shareholder meetings are held. Similarly, while stock exchanges like the NYSE and NASDAQ require listed companies to hold shareholder meetings, they also do not prohibit nor impose restrictions on virtual meetings.

Factors Influencing the Decision to Hold a Virtual Meeting

A company should assess typical shareholder attendance at its annual meeting and the interest of senior management and directors in holding the annual meeting virtually who may have concerns about investor reaction to a virtual meeting announcement or who may want the company to demonstrate its embrace of current technology. A company should also compare the costs and logistical efforts necessary for a physical meeting against those needed for a virtual meeting, which will include fees for the virtual meeting platform and may still include travel expenses for certain directors and management team members. Other factors include whether any shareholder proposals are pending and the level of shareholder dissent, such as with respect to the company’s performance or governance. The company should evaluate the risk of triggering shareholder activism if it announces an intent to hold its annual meeting virtually. There may be reasons why a physical meeting may be preferable, such as where director elections are contested or a significant business transaction or controversial proposal will be put to a shareholder vote. To date, no virtual meetings involving proxy contests have been held.

Planning for a Virtual Meeting

In 2012, a group of “interested constituencies, comprised of retail and institutional investors, public company representatives, as well as proxy and legal service providers” published guidelines for virtual meetings. Chaired by a representative of CalSTRS and including members from the National Association of Corporate Directors, the Society for Corporate Governance (formerly known as the Society of Corporate Secretaries & Governance Professionals), AFL-CIO and NASDAQ and others, this “Best Practices Working Group for Online Shareholder Participation in Annual Meetings” set forth the following principles for online shareholder participation in annual meetings:

  1. Companies should “employ safeguards and mechanisms to protect [shareholder interests] and to ensure that companies are not using technology to avoid opportunities for dialogue that would otherwise be available at an in-person shareholder meeting.” Companies should adopt safeguards for shareholders’ online participation by adopting policies and procedures that offer a similar level of transparency and interaction as a physical meeting. The policies and procedures should also address validation of attendees (to confirm that they are shareholders and proxyholders) and enable online voting.
  2. Companies should “maximize the use of technology” to make the meeting accessible to all shareholders. Steps to be considered include offering telephone or videoconferencing access “so that shareholders can call in to ask questions during the meeting,” ensuring accessible technology “by utilizing a platform that accommodates most, if not all, shareholders,” “providing a technical support line for shareholders,” and “opening web lines and telephone lines in advance” for pre-meeting testing access.

If a company decides to hold its annual meeting virtually, it may wish to proactively discuss the proposed change with key shareholders and explain the rationale for it. The company must also determine how it would handle shareholder questions—for example, whether all questions would be posted and establishing what happens to questions received during the meeting that are not answered during the meeting.

A company has several options for hosting a virtual meeting (audio, video, telephone, web, etc.), and a company’s choice among those options will be guided by state legal requirements. Providers offer virtual meeting platforms on which companies can host their annual meetings and shareholders can attend and vote online. These commercial platforms can help companies comply with statutory requirements, such as Delaware’s requirement to maintain records of votes and other shareholder actions. If possible, the company should leverage technology to allow attendees with different levels of technological savvy or resources to attend.

Conclusion

Though some originally thought that only small companies would use virtual meetings because larger, more well-known companies would want to use the annual meeting as a public relations opportunity and to avoid backlash from shareholder groups, large companies have now started holding virtual meetings. In deciding whether to hold a virtual meeting, companies should weigh the relative advantages and disadvantages applicable to their situations, which may include potential negative sentiment from investors. With technological advances that enable the meetings to be more similar to physical meetings, the potential cost and time savings of virtual meetings may appeal to more companies.

The complete publication, including footnotes, is available here.

L’évolution de la divulgation des comités d’audit aux actionnaires


Voici un article d’Ann Yerger, directrice du Center for Board Matters, de la firme Ernst & Young, qui porte sur l’évolution significative des politiques de divulgation des comités d’audit aux actionnaires des entreprises cotées en bourse aux États-Unis en 2106. L’article est paru sur le site du Harvard Law School Forum on Corporate Governance le 9 octobre.

L’étendue des divulgations aux actionnaires est vraiment très importante dans certains cas. Par exemple, en 2012, seulement 42 % des entreprises dévoilaient explicitement que le comité d’audit était responsable de l’engagement, de la rémunération et de la surveillance des auditeurs externes, alors qu’en 2016, 82 % divulguent, souvent en détail, les informations de cette nature.

Plusieurs autres résultats font état de changements remarquables dans la reddition de compte des comités d’audit aux actionnaires des entreprises.

Ceux-ci sont maintenant plus en mesure d’évaluer la portée des décisions des comités d’audit eu égard à la qualité du travail des auditeurs externes, aux raisons invoquées pour changer d’auditeur externe, à la fixation du mandat de l’auditeur externe, à la composition du comité d’audit, à l’augmentation des honoraires des firmes comptables dans les quatre catégories suivantes : audit, relié aux travaux d’audit, fiscalité et autres services connexes, etc.

Bonne lecture !

Audit Committee Reporting to Shareholders in 2016

 

audit

 

Audit committees have a key role in overseeing the integrity of financial reporting. Nevertheless, relatively little information is required to be disclosed by US public companies about the audit committee’s important work. Since our first publication in this series in 2012, we have described efforts by investors, regulators and other stakeholders to seek increased audit­-related disclosures, as well as the resulting voluntary disclosures to respond to this interest.

Over 2015–2016, US regulators have placed a spotlight on audit-related disclosures and financial reporting more generally. The US Securities and Exchange Commission (SEC) and the US Public Company Accounting Oversight Board (PCAOB) have both taken action to consider the possibility of requiring new disclosures relating to the audit.

SEC representatives also have used speeches to urge companies and audit committees to increase disclosures in this area voluntarily. While additional disclosure requirements for audit committees are not expected in the near term, regulators continue to monitor developments in this area. This post seeks to shed light on the evolving audit­-related disclosure landscape.

Context

Public company audit committees are responsible for overseeing financial reporting, including the external audit. Under US securities laws, audit committees are “directly responsible for the appointment, compensation, retention and oversight” of the external auditor, and must include a report in annual proxy statements about their work. This audit committee report, however, currently must affirm only that the committee carried out certain specific responsibilities related to communications with the external auditor, and this requirement has not changed since 1999.

In recent years, a variety of groups have brought attention to the relative lack of information available about the audit committee and the audit, including their view that this area of disclosure may not have kept up with the needs of investors and other proxy statement users. These groups include pension funds, asset managers, investors, corporate governance groups, and domestic and foreign regulators. As efforts to seek additional information have continued, there has been a steady increase in voluntary audit-related disclosures.

Over the last year, the SEC has taken a series of actions to consider whether and how to improve transparency around audit committees, audits and financial reporting more generally. The combined effect of these activities has been to increase engagement by issuers, audit firms, investors and other stakeholders in discussions about the current state of financial reporting­ related disclosure as well as how it should change.

Findings

Our analysis of the 2016 proxy statements of Fortune 100 companies indicates that voluntaryaudit-related disclosures continue to trend upward in a number of areas. The CBM data for this review is based on the 78 companies on the 2016 Fortune 100 list that filed proxy statements each year from 2012 to 2016 for annual meetings through August 15, 2016. Below are highlights from our research:

  1. The percentage of companies that disclosed factors considered by the audit committee when assessing the qualifications and work quality of the external auditor increased to 50%, up from 42% in 2015. In 2012, only 17% of audit committees disclosed this information.
  2. Another significant increase was in disclosures stating that the audit committee believed that the choice of external auditor was in the best interests of the company and/or the shareholders. In 2016, 73% of companies disclosed such information; in 2015, this percentage was 63%. In 2012, only 3% of companies made this disclosure.
  3. The audit committees of 82% of the companies explicitly stated that they are responsible for the appointment, compensation and oversight of the external auditor; in 2012, only 42% of audit committees provided such disclosures.
  4. 31% of companies provided information about the reasons for changes in fees paid to the external auditor compared to 21% the previous year. Reasons provided in these disclosures include one­-time events, such as a merger or acquisition. Under current SEC rules, companies are required to disclose fees paid to the external auditor, divided into the following categories: audit, audit-related, tax and all other fees. They are not, however, required to discuss the reasons why these fees have increased or decreased. From 2012 to 2016, the percentage of companies disclosing information to explain changes in audit fees rose from 9% to 31%. Additional CBM research examined the disclosures of the subset of studied companies (43) that had changes in audit fees of +/-­ 5% or more compared to the previous year. Out of these 43 companies, roughly 20% provided explanatory disclosures regarding the change in audit fees.
  5. 29 of the 43 companies had fee increases of 5% or more, out of which 8 companies disclosed the reasons for the increases. 14 of the 43 companies had fee decreases of 5% or more, out of which only one company provided an explanatory disclosure.
  6. 53% of companies disclosed that the audit committee considered the impact of changing auditors when assessing whether to retain the current auditor. This was a 6 percentage point increase over 2015. In 2012, this disclosure was made by 3% of the Fortune 100 companies. Over the past five years, the number of companies disclosing that the audit committee was involved in the selection of the lead audit partner has grown dramatically, up to 73% in 2016. In 2015, 67% of companies disclosed this information, while in 2012, only 1% of companies did so.
  7. 51% of companies disclosed that they have three or more financial experts on their audit committees, up from 47% in 2015 and 36% in 2012.

Summary: Trends in Audit Committee Disclosure

(Cliquez pour agrandir)

ey-summary-trends-in-audit-committee

 

Les devoirs des administrateurs eu égard à un climat de travail malsain | Un cas pratique


Voici un cas de gouvernance publié sur le site de Julie Garland McLellan* qui illustre les contradictions entre les valeurs énoncées par une école privée et celles qui semblent animer les administrateurs et les parents.

Le cas montre comment un administrateur, nouvellement élu sur un CA d’une école privée, peut se retrouver dans une situation embarrassante impliquant des comportements de harcèlement et de menaces qui affectent la santé mentale et le bien-être des employés.

Cette situation semble se présenter de plus en plus fréquemment dans les institutions d’enseignement qui visent des rendements très (trop !) élevés.

Comment Ignacio peut-il s’y prendre pour bien faire comprendre aux administrateurs de son CA leurs devoirs et leurs obligations légales d’assurer un climat de travail sain, absent d’agression de la part de certains parents ?

Le cas présente, de façon claire, une situation de culture organisationnelle déficiente ; puis, trois experts en gouvernance se prononcent sur le dilemme qui se présente aux administrateurs qui vivent des expériences similaires.

Bonne lecture ! Vos commentaires sont toujours les bienvenus.

 

Un cas culture organisationnelle déficiente !

 

 drapeau-vicario1

 

Ignacio is an old boy of a private school with a proud sporting tradition. He was invited onto the board last year when a long-serving director retired. The school is well run with a professional principal who has the respect of the staff as well as many of the boys.

The school has worked hard to develop academic excellence and its place in rankings has improved with a greater percentage of boys qualifying for university.

At the last board meeting the CEO was absent. The chairman explained that he had taken stress leave because he couldn’t cope with bullying from some of the parents. Some directors sniggered and the rest looked embarrassed. There were a few comments about ‘needing to grow a backbone’, ‘being a pansy’, and ‘not having the guts to stand up to parents or lead the teams to victory on the field’.

Ignacio was aghast – he asked about the anti-harassment and workplace health and safety policies and was given leave by the chair « to look into ‘covering our backs’ if necessary ».

Ignacio met with the HR manager and discovered the policies were out of date and appeared to have been cut and pasted from the original Department of Education advice without customisation. From his experience running a business Ignacio is aware of the importance of mental health issues in the modern workplace and also of the legal duty of directors to provide a workplace free from bullying and harassment. School staff are all aware of a discrepancy between the stated School values and those of the board and some parents. The HR manager tells him that recent bullying by parents has become more akin to verbal and even physical assault. Staff believe the board will not support them against fee paying parents even though the school is, in theory, a not-for-profit institution.

How can Ignacio help lead his board to an understanding of their duty to provide a safe workplace?

 

Chris’s Answer  …..

 

Julie’s Answer ….

 

Leanne’s Answer ….

*Julie Garland McLellan is a practising non-executive director and board consultant based in Sydney, Australia.

 

Deux livres phares sur la gouvernance d’entreprise


On me demande souvent de proposer un livre qui fait le tour de la question eu égard à ce qui est connu comme statistiquement valide sur les relations entre la gouvernance et le succès des organisations (i.e. la performance financière !)

Le volume publié par David F. Larcker et Brian Tayan, professeurs au Graduate School de l’Université Stanford, en est à sa deuxième édition et il donne l’heure juste sur l’efficacité des principes de gouvernance.

Je vous recommande donc vivement ce volume.

Également, je profite de l’occasion pour vous indiquer que je viens de recevoir la dernière version  des Principes de gouvernance d’entreprise du G20 et de l’OCDE en français et j’ai suggéré au Collège des administrateurs de sociétés (CAS) d’inclure cette publication dans la section Nouveauté du site du CAS.

Il s’agit d’une publication très attendue dans le monde de la gouvernance. La documentation des organismes internationaux est toujours d’abord publiée en anglais. Ce document en français de l’OCDE sur les principes de gouvernance est la bienvenue !

Voici une brève présentation du volume de Larcker. Bonne lecture !

Corporate Governance Matters: A Closer Look at Organizational Choices and Their Consequences (2nd edition)

This is the most comprehensive and up-to-date reference for implementing and sustaining superior corporate governance. Stanford corporate governance experts David Larcker and Bryan Tayan carefully synthesize current academic and professional research, summarizing what is known and unknown, and where the evidence remains inconclusive.

Corporate Governance Matters, Second Edition reviews the field’s newest research on issues including compensation, CEO labor markets, board structure, succession, risk, international governance, reporting, audit, institutional and activist investors, governance ratings, and much more. Larcker and Tayan offer models and frameworks demonstrating how the components of governance fit together, with updated examples and scenarios illustrating key points. Throughout, their balanced approach is focused strictly on two goals: to “get the story straight,” and to provide useful tools for making better, more informed decisions.

Book cover: Corporate Governance Matters, 2nd edition

This edition presents new or expanded coverage of key issues ranging from risk management and shareholder activism to alternative corporate governance structures. It also adds new examples, scenarios, and classroom elements, making this text even more useful in academic settings. For all directors, business leaders, public policymakers, investors, stakeholders, and MBA faculty and students concerned with effective corporate governance.

Selected Editorial Reviews

An outstanding work of unique breadth and depth providing practical advice supported by detailed research.
Alan Crain, Jr., Senior Vice President and General Counsel, Baker Hughes
Extensively researched, with highly relevant insights, this book serves as an ideal and practical reference for corporate executives and students of business administration.
Narayana N.R. Murthy, Infosys Technologies
Corporate Governance Matters is a comprehensive, objective, and insightful analysis of academic and professional research on corporate governance.
Professor Katherine Schipper, Duke University, and former member of the Financial Accounting Standards Board

Les grandes sociétés sont plus résistantes que l’on est porté à le croire !


Voici un excellent article partagé par Paul Michaud, ASC, et publié dans The Economist.

Il y a plusieurs pratiques du management et de la gouvernance à revoir à l’âge des grandes entreprises internationales qui se démarquent par l’excellence de leur modèle d’acquisiteur, de consolidateur et de synergiste.

Incumbents have always had a tendency to grow fat and complacent. In an era of technological disruption, that can be lethal. New technology allows companies to come from nowhere (as Nokia once did) and turn entire markets upside down. Challengers can achieve scale faster than ever before. According to Bain, a consultancy, successful new companies reach Fortune 500 scale more than twice as fast as they did two decades ago. They can also take on incumbents in completely new ways: Airbnb is competing with the big hotel chains without buying a single hotel.

Vous trouverez, ci-dessous un bref extrait de cet article que je vous encourage à lire.

The new Methuselahs

 

IN SEPTEMBER 2009 Fast Company magazine published a long article entitled “Nokia rocks the world”. The Finnish company was the world’s biggest mobile-phone maker, accounting for 40% of the global market and serving 1.1 billion users in 150 countries, the article pointed out. It had big plans to expand into other areas such as digital transactions, music and entertainment. “We will quickly become the world’s biggest entertainment media network,” a Nokia vice-president told the magazine.

20160917_srd004

It did not quite work out that way. Apple was already beginning to eat into Nokia’s market with its smartphones. Nokia’s digital dreams came to nothing. The company has become a shadow of its former self. Having sold its mobile-phone business to Microsoft, it now makes telecoms network Equipment.

There are plenty of examples of corporate heroes becoming zeros: think of BlackBerry, Blockbuster, Borders and Barings, to name just four that begin with a “b”. McKinsey notes that the average company’s tenure on the S&P 500 list has fallen from 61 years in 1958 to just 18 in 2011, and predicts that 75% of current S&P 500 companies will have disappeared by 2027. Ram Charan, a consultant, argues that the balance of power has shifted from defenders to attackers.

Incumbents have always had a tendency to grow fat and complacent. In an era of technological disruption, that can be lethal. New technology allows companies to come from nowhere (as Nokia once did) and turn entire markets upside down. Challengers can achieve scale faster than ever before. According to Bain, a consultancy, successful new companies reach Fortune 500 scale more than twice as fast as they did two decades ago. They can also take on incumbents in completely new ways: Airbnb is competing with the big hotel chains without buying a single hotel.

Next in line for disruption, some say, are financial services and the car industry. Anthony Jenkins, a former chief executive of Barclays, a bank, worries that banking is about to experience an “Uber moment”. Elon Musk, a founder of Tesla Motors, hopes to dismember the car industry (as well as colonise Mars).

It is perfectly possible that the consolidation described so far in this special report will prove temporary. But two things argue against it. First, a high degree of churn is compatible with winner-takes-most markets. Nokia and Motorola have been replaced by even bigger companies, not dozens of small ones. Venture capitalists are betting on continued consolidation, increasingly focusing on a handful of big companies such as Tesla. Sand Hill Road, the home of Silicon Valley’s venture capitalists, echoes with talk of “decacorns” and “hyperscaling”.

Second, today’s tech giants have a good chance of making it into old age. They have built a formidable array of defences against their rivals. Most obviously, they are making products that complement each other. Apple’s customers usually buy an entire suite of its gadgets because they are designed to work together. The tech giants are also continuously buying up smaller companies. In 2012 Facebook acquired Instagram for $1 billion, which works out at $30 for each of the service’s 33m users. In 2014 Facebook bought WhatsApp for $22 billion, or $49 for each of the 450m users. This year Microsoft spent $26.2 billion on LinkedIn, or $60.5 for each of the 433m users. Companies that a decade ago might have gone public, such as Nest, a company that makes remote-control gadgets for the home, and Waze, a mapping service, are now being gobbled up by established giants.

…..

Enquête mondiale sur les conseils d’administration et la gouvernance


Voici un récent article publié par Julie Hembrock Daum, directrice à Spencer Stuart et Susan Stauberg, PDG à Fondation WomenCorporateDirectors.

Cet article a été publié dans le Harvard Law School Forum aujourd’hui et il présente l’état de la gouvernance à l’échelle internationale (60 pays) en mettant particulièrement l’accent sur la diversité et les différences de perception entre les hommes et les femmes qui occupent des postes d’administrateurs de grandes sociétés privées ou publiques.

On me demande souvent de proposer des références en relation avec la gouvernance globale. Les gens veulent connaître les tendances et les progrès des efforts entrepris dans le domaine de la diversité dans le monde.

L’enquête citée ci-dessous fournit des données actuelles sur les principaux enjeux concernant les Board.

Je crois que tous les gestionnaires seront intéressés par la présentation succincte, claire et bien illustrée des données de la mondialisation de la gouvernance.

Bonne lecture ; vos commentaires sont appréciés.

 

2016 Global Board of Directors Survey

 

The growing demands on corporate boards are transforming boardrooms globally, with directors taking on a more strategic, dynamic and responsive role to help steer their companies through a hypercompetitive and volatile business environment. Economic and political uncertainties make long-term planning more difficult. The proliferation of cyber attacks—and their consequences for business in financial  olosses and reputational damage—increases the scope of risk oversight. A rise in institutional and activist shareholder activity requires boards to identify vulnerabilities in board renewal and performance and, in some cases, establish protocols for engagement. And all of these demands have pushed issues around board composition and diversity to the fore, as boards cannot afford to have directors around the table who aren’t delivering value.

boardroom presentation
Boardroom presentation

In this context, Spencer Stuart, the WomenCorporateDirectors (WCD) Foundation, Professor Boris Groysberg and doctoral candidate Yo-Jud Cheng of Harvard Business School and researcher Deborah Bell partnered together on the 2016 Global Board of Directors Survey, one of the most comprehensive surveys of corporate directors around the world.

We received responses from more than 4,000 male and female directors from 60 countries, providing a comprehensive snapshot of the business climate and strategic priorities as seen from the boardroom of many of the world’s top public and large, privately held companies.

The survey explores in depth how boards think and operate. It captures in detail the governance practices, strategic priorities and views on board effectiveness of corporate directors around the world. It also confirmed many of our observations from working with boards. The economy is top of mind, and many directors are uncertain about economic prospects and not seeing growth in the future. At the same time, directors are responding proactively to the many new demands they face, looking for opportunities to enhance composition and improve board performance.

Findings compare and contrast the views between male and female corporate board directors, and highlight similarities and differences between public and private companies and among directors from different regions in five key areas:

  1. Political and economic landscape
  2. Company strategy and risks
  3. Board governance and effectiveness
  4. Board diversity and quotas
  5. Director identification and recruitment

This post highlights key findings around these topics, providing directors an overview of how their peers view their own boards and the challenges that their companies face. In subsequent reports, we will dive deeper into specific governance areas and explore additional perspectives on board composition, risk areas, and strengths and weaknesses in boardrooms today.

Key Findings

Political and Economic Landscape: Uncertainty dominates boardroom outlook.

ss1Our survey finds that directors around the world are uncertain about global growth prospects, with directors in North America and Western Europe least confident about the prospects for growth. Sixty-three percent of directors in these regions see uncertain economic conditions, compared with 36% in Asia and 40% in Africa.

Only 2% of directors across all regions predict a period of strong global growth over the next three years, while 16% expect a global slowdown. “This pessimism about growth is one of the most surprising findings of our survey,” said Boris Groysberg of Harvard Business School. “It seems that the market volatility and low prospects for growth as well as the unpredictable economic outlook are what keep board members awake at night.”

More than one-third of directors of companies headquartered in Asia and roughly one-quarter of directors of companies in Australia/New Zealand expect relatively faster growth in emerging economies versus developed countries.

Political and Economic Landscape: Economy, regulations and cybersecurity top issues for directors.

ss2
Across all industries and regions, directors rank the economy and the regulatory environment as the political issues most relevant to them. Cybersecurity is an increasingly important issue in many regions. More than one-third of directors of companies in Australia/New Zealand, North America and Western Europe say cybersecurity is a top issue. “Cybersecurity continues to be a leading issue on the agenda from a regulatory, reputational and contingency standpoint,” says Julie Hembrock Daum, head of Spencer Stuart’s North American Board Practice.

“We see boards considering a number of different approaches to getting smart about the broader impact of technology on the business. In certain cases they have added a director with a strong digital or security background. However, the board should not isolate cybersecurity responsibility with just this one board member, but continue to view cybersecurity as a full board priority.”

Political instability is a concern in several regions. In Central and South America, one-half of directors cite political instability as an issue. Corporate tax rates are an issue particularly in North America.

ss3

Company Risks: Women directors report higher concerns about risk than male directors.

Directors globally express the most concern about regulatory and reputational risks, followed by cybersecurity, and less about activist investors and supply chain risks. In general, directors report that their companies are prepared to handle the most important risks, with companies’ level of readiness matching the most concerning areas of risk. However, directors of private companies systematically rank their boards as being less prepared versus public company boards when it comes to such risks.

Nearly across the board, female directors report a higher level of concern about various risks to a company than their male peers—from concerns about activist investors and cybersecurity to regulatory risk and the supply chain. However, female directors also feel that their companies have a higher level of readiness to address these risks than do their male cohorts.

Susan Stautberg, chairman and CEO of the WCD Foundation, believes that women directors may be educating themselves more about the potential risks:

“We believe that women in particular bring a real thirst for knowledge and curiosity to their board service, and this includes getting up-to-speed on what the real risks are to an organization. All good directors do this, but we think being relatively new to the boardroom can create a greater sense of urgency to learn.”

ss4

Strategy: Top challenges differ for public and private companies.

Talent, regulations, global and domestic competition, and innovation are seen by directors as the top impediments to achieving their companies’ strategic objectives. How those challenges rank specifically depends in part on whether directors are serving public or private companies.

Nearly half of private company directors (versus 38% of public company directors) rate attracting and retaining talent as a key challenge to achieving their company’s strategic objectives. This is followed by domestic competitive threats, the regulatory environment, innovation and global competitive threats. Among public companies, 43% of directors (versus 32% of private company directors) say the regulatory environment is a top challenge, followed by attracting and retaining talent, global competitive threats, innovation and domestic competitive threats.

“This was interesting because we do see in larger, more established public companies a greater maturity in their HR processes and deeper resources invested in talent management and development,” says Daum. “Identifying and recruiting individuals who fit the culture, bring impact to the organization and endure is a high priority for nearly all companies. However, many private companies, which tend to be smaller and have less brand awareness as a whole, often have less robust HR structures to attract the level of talent across the organization.”

Perceived challenges also differ somewhat by industry and region, with the regulatory environment being more concerning for companies in the energy/utilities, financials/professional services and healthcare industries, and in Asia, Australia/New Zealand, North America and Western Europe. Global competitive threats are the leading concern for companies in the industrials and materials sectors, and in Western Europe.

Interestingly, while cybersecurity is viewed as an important risk, few directors consider it a major challenge to achieving strategic objectives. Similarly, activist shareholders, compensation, cost of commodities and supply chain risk are not perceived as challenges to achieving strategic goals.

On average, directors rate their board’s overall performance as being slightly above average (3.7 out of 5). Directors see their boards as having the strongest processes related to staying current on the company and the industry, compliance, financial planning and board composition, and weakest in cybersecurity, the evaluation of individual directors, CEO succession planning and HR/talent management.

“These ratings underscore directors’ views that attracting and retaining top talent is a common challenge, and underline the need for these HR competencies on boards,” says Stautberg. Harvard Business School doctoral candidate Yo-Jud Cheng adds, “Despite the fact that directors recognize their weaknesses in these areas, boards continue to prioritize more conventional areas of expertise, such as industry knowledge and auditing, in their appointments of new directors.”

Public company directors rate their overall board performance slightly higher than private company directors (3.8 versus 3.4) and give themselves higher marks for creating effective board structures, evaluation of individual directors, cybersecurity and compliance. We also see some variation across regions.

Board Turnover: Directors—especially women—favor tools to trigger change.

A little more than one-third of boards have term limits for directors, averaging six years, while approximately one-quarter of boards have a mandatory retirement age, averaging 72 years. Boards in Western Europe are most likely to have term limits, and boards in North America are least likely to set term limits. However, boards in North America are more likely to have a mandatory retirement age than boards in Western Europe (34% versus 18%). We also see a stark contrast between public and private companies in both term limits (39% versus 30%) and mandatory retirement ages (33% versus 12%).ss5

While these tools for triggering director turnover generally have not been widely adopted, the survey indicates that directors favor adoption of such mechanisms. Sixty percent of directors think that boards should have mandatory term limits for directors, and 45% think that there should be a mandatory retirement age. Even in private companies, which are considerably less likely to adopt these practices today, directors shared similar opinions as compared to their counterparts in public companies. Female directors even more strongly support triggers for turnover; 68% (versus 56% of men) favor director term limits and 57% (versus 39% of men) support mandatory retirement ages.

“It was encouraging to see the majority of respondents in favor of retirement ages and term limits. Turnover among S&P 500 companies has trended at 5% to 7%—roughly 300 to 350 seats a year. Boards need tools they can use to ensure that new perspectives and thinking are regularly being brought to the boardroom,” says Daum. “This isn’t just an issue tied to activist shareholders, but something institutional shareholders are asking about as well: what are boards doing to ensure independent and fresh thinking?”

ss6Not surprisingly, 43% of directors believe that a director loses his or her independence after about 10 years. Respondents from North America are less likely to tie director independence to years served, with only one-third agreeing that a director loses independence after a certain amount of time on the board.

Board Diversity: Greater independence doesn’t always drive greater diversity.

Public companies represented in the survey have larger boards than private companies—on average 8.9 directors versus 7.6—and a larger representation of independent directors, 74% versus 54%. Yet, public and private company boards are similar in terms of the representation of women, minorities and new directors. On average, 18% of board members are women, 7% are ethnic minorities and 13% have been appointed in the past 12 months.

“This finding was very interesting. There has been much debate about the use and effectiveness of quotas. To see the relative parity of diversity among public and private companies reinforces that the tone needs to come from the top regarding bringing a fresh, diverse perspective representative of the company’s stakeholders and interests,” says Daum. Groysberg adds, “Although we are hearing more talk about the importance of diversity from boards, it’s not necessarily translating into numbers. Unfortunately, we haven’t seen as much progress as we were hoping for compared to our past survey on the diversity of boards.”

Boards are largest in the financials/professional services sector (9.1 directors) and smallest in the IT/telecom sector (7.5 directors). Female representation is highest (20% or more) in the consumer staples, financial services/professional services and consumer discretionary sectors, and lowest in IT/telecom (13%).

Looking across regions, board size is smallest in Australia/New Zealand, where boards average 6.7 members, as compared to the global average of 8.5 members. Boards in Australia/New Zealand and North America have the highest proportion of independent directors, and boards in Asia have the lowest proportion. Female representation is lowest in Central and South America and Asia.

ss7

Boardroom Diversity: Why isn’t the number of women on boards increasing?

As the percentage of women on boards remains stagnant, there is both a gender divide and a generation divide on why this is. Male directors, especially older respondents, report the “lack of qualified female candidates,” while women directors most often cite the fact that diversity is not a priority in board recruiting and that traditional networks tend to be male-dominated. Younger male directors surveyed (those 55 and younger) are inclined to agree with women that traditional networks tend to be male-dominated. “Men in the younger generation, I think, just see their qualified female colleagues out there, but know that the traditional board networks still tend to be male,” says Stautberg. “It’s often hard to see an informal ‘network’ if you are in the middle of it, but you can see it very clearly when you’re on the outside.”

ss8

Boardroom Diversity: Quotas not supported overall.

Nearly 75% of surveyed directors do not personally support boardroom diversity quotas, but support for quotas varies significantly by gender and, to a lesser degree, by age. Forty-nine percent of female directors support diversity quotas, but only 9% of male directors do. Older women are less likely to favor quotas than younger women; 67% of female directors ages 55 and younger personally support boardroom quotas, compared with 36% of female directors over 55 (the majority of male directors, of any age, do not support quotas). Female directors also are more likely to be in favor of government regulatory agencies requiring boards to disclose specific practices/steps being taken to seat diverse candidates (43% versus 14% of male directors).

If quotas aren’t the answer, what do directors think would increase board diversity? Male and female directors agree that having board leadership that champions board diversity is the most effective way to build diverse corporate boards. Men feel more strongly than women that efforts to develop a pipeline of diverse board candidates throuss9gh director advocacy, mentorship and training is an effective way to increase diversity.

Directors as a whole agree that shareholder pressure and board targets are less effective tools for increasing board diversity.

 

Boardroom Diversity: Search firms have been successful in expanding the talent pool of qualified female directors.

Directors take a variety of pathways to the boardroom: in roughly equal measures, directors were known to the board or another director, recruited by a search firm or known by the CEO. Public company directors are more likely to be recruited by an executive search firm than private company directors, while private company directors are more likely to have been appointed by a major shareholder.

The survey highlights gender differences, as well, in the paths to the boardroom. Female directors are more likely than their male counterparts to have been recruited by an executive search firm, while male directors are more likely to have been appointed by a major shareholder. “Search firms may be able to open doors that networking opportunities may not have been doing until relatively recently, at least for women,” says Stautberg. “Building up networks and getting known is something that women directors are engaging in much more actively now.”

And, indeed, 39% of female directors report that their gender was a significant factor in their board appointment, versus 1% of men.

Conclusion

Corporate boards face no shortage of challenges—from economic uncertainty to strategic and competitive shifts to a dynamic set of risks. Investor attention to board performance and governance has also escalated, and many boards are holding themselves to higher standards. Directors want to ensure that their boards contribute at the highest level, incorporating diverse perspectives, aligning with shareholder interests and setting a positive tone at the top for the organization.

Yet our research has revealed a gap between best practice and reality, especially in areas such as board diversity, HR/talent management, CEO succession planning and director evaluations. But the study provides hope that boards will make progress, as directors support practices that can help promote change. Future research is needed to track progress on these fronts and to study the impact of measures such as quotas and diversity on board performance.

Amid the many challenges confronting corporations—and the growing expectations on corporate boards—directors must be thoughtful about defining the skill sets needed around the board table and diligent in recruiting the right directors, planning for CEO succession and evaluating their own performance. In this way, they will be best positioned to contribute at the high levels which they are demanding of themselves, and to which others are holding them accountable.

The complete publication is available here.

*Julie Hembrock Daum leads the North American Board Practice at Spencer Stuart, and Susan Stautberg is the Chairman and CEO of the WomenCorporateDirectors Foundation. This post relates to the 2016 Global Board of Directors Survey, a co-publication from Spencer Stuart and the WCD Foundation authored by Ms. Daum; Ms. Stautberg; Dr. Boris Groysberg, Richard P. Chapman Professor of Business Administration at Harvard Business School; Yo-Jud Cheng, doctoral candidate at Harvard Business School; and Deborah Bell, researcher.

La relève dans une entreprise familiale | Une possibilité de conflits de rôles !


Voici un cas de gouvernance publié sur le site de Julie Garland McLellan* qui concerne les relations entre la présidente du conseil et sa fille nouvellement nommée comme CEO de cette entreprise privée de taille moyenne.

Le cas illustre le processus de transition familiale et les efforts à exercer afin de ne pas interférer avec les affaires de l’entreprise.

Il s’agit d’un cas très fréquent dans les entreprises familiales. Comment Hannah peut-elle continuer à faire profiter sa fille de ses conseils tout en s’assurant de ne pas empiéter sur ses responsabilités ?

Le cas présente la situation de manière assez succincte, mais explicite ; puis, trois experts en gouvernance se prononcent sur le dilemme qui se présente aux personnes qui vivent des situations similaires.

Bonne lecture ! Vos commentaires sont toujours les bienvenus.

 

Cas de relève familiale

 

spb-cinq-conditions-gagnantes-assurer-releve-entreprise-familiale_2

 

Hannah prepared for the transition. She did a course of director education and understands her duties as a non-executive. She loves her daughter, trusts her judgement as CEO and genuinely wants to see her succeed. Nothing is going wrong but Hannah can’t help interfering. She is bored and longs for the days when she could visit customers or sit and strategise with her management team. 

Once a week she has a formal meeting with the CEO in her office. In between times she is in frequent contact. Although by mutual agreement these contacts should be purely social or family oriented Hannah finds herself talking business and is hurt when her daughter suggests they leave it for the weekly meeting or put it onto the board agenda.

Over the past few months Hannah has improved governance, record-keeping, training and succession planning systems but she is running out of projects she can do without undermining her daughter. She also recognises that, as a medium sized unlisted business, the company does not need any more governance structures.

How can Hannah find fulfilment in her new role?

 

 

Paul’s Answer  …..

 

Julie’s Answer ….

 

Jakob’s Answer ….

*Julie Garland McLellan is a practising non-executive director and board consultant based in Sydney, Australia.

 

Dix thèmes majeurs pour les administrateurs en 2016 | Harvard Law School Forum on Corporate Governance


Vous trouverez, ci-dessous, les dix thèmes les plus importants pour les administrateurs de sociétés selon Kerry E. Berchem, associé du groupe de pratiques corporatives à la firme Akin Gump Strauss Hauer & Feld LLP. Cet article est paru aujourd’hui sur le blogue le Harvard Law School Forum on Corporate Governance.

Bien qu’il y ait peu de changements dans l’ensemble des priorités cette année, on peut quand même noter :

(1) l’accent crucial accordé au long terme ;

(2) Une bonne gestion des relations avec les actionnaires dans la foulée du nombre croissant d’activités menées par les activistes ;

(3) Une supervision accrue des activités liées à la cybersécurité…

Pour plus de détails sur chaque thème, je vous propose la lecture synthèse de l’article ci-dessous.

Bonne lecture !

 

Ten Topics for Directors in 2016 |   Harvard Law School Forum on Corporate Governance

 

U.S. public companies face a host of challenges as they enter 2016. Here is our annual list of hot topics for the boardroom in the coming year:

  1. Oversee the development of long-term corporate strategy in an increasingly interdependent and volatile world economy
  2. Cultivate shareholder relations and assess company vulnerabilities as activist investors target more companies with increasing success
  3. Oversee cybersecurity as the landscape becomes more developed and cyber risk tops director concerns
  4. Oversee risk management, including the identification and assessment of new and emerging risks
  5. Assess the impact of social media on the company’s business plans
  6. Stay abreast of Delaware law developments and other trends in M&A
  7. Review and refresh board composition and ensure appropriate succession
  8. Monitor developments that could impact the audit committee’s already heavy workload
  9. Set appropriate executive compensation as CEO pay ratios and income inequality continue to make headlines
  10. Prepare for and monitor developments in proxy access

Strategic Planning Considerations

Strategic planning continues to be a high priority for directors and one to which they want to devote more time. Figuring out where the company wants to—and where it should want to—go and how to get there is not getting any easier, particularly as companies find themselves buffeted by macroeconomic and geopolitical events over which they have no control.

axes

In addition to economic and geopolitical uncertainty, a few other challenges and considerations for boards to keep in mind as they strategize for 2016 and beyond include:

finding ways to drive top-line growth

focusing on long-term goals and enhancing long-term shareholder value in the face of mounting pressures to deliver short-term results

the effect of low oil and gas prices

figuring out whether and when to deploy growing cash stockpiles

assessing the opportunities and risks of climate change and resource scarcity

addressing corporate social responsibility.

Shareholder Activism

Shareholder activism and “suggestivism” continue to gain traction. With the success that activists have experienced throughout 2015, coupled with significant new money being allocated to activist funds, there is no question that activism will remain strong in 2016.

In the first half of 2015, more than 200 U.S. companies were publicly subjected to activist demands, and approximately two-thirds of these demands were successful, at least in part. [1] A much greater number of companies are actually targeted by activism, as activists report that less than a third of their campaigns actually become public knowledge. [2] Demands have continued, and will continue, to vary: from requests for board representation, the removal of officers and directors, launching a hostile bid, advocating specific business strategies and/or opining on the merit of M&A transactions. But one thing is clear: the demands are being heard. According to a recent survey of more than 350 mutual fund managers, half had been contacted by an activist in the past year, and 45 percent of those contacted decided to support the activist. [3]

With the threat of activism in the air, boards need to cultivate shareholder relations and assess company vulnerabilities. Directors—who are charged with overseeing the long-term goals of their companies—must also understand how activists may look at the company’s strategy and short-term results. They must understand what tactics and tools activists have available to them. They need to know and understand what defenses the company has in place and whether to adopt other protective measures for the benefit of the overall organization and stakeholders.

Cybersecurity

Nearly 90 percent of CEOs worry that cyber threats could adversely impact growth prospects. [4] Yet in a recent survey, nearly 80 percent of the more than 1,000 information technology leaders surveyed had not briefed their board of directors on cybersecurity in the last 12 months. [5] The cybersecurity landscape has become more developed and as such, companies and their directors will likely face stricter scrutiny of their protection against cyber risk. Cyber risk—and the ultimate fall out of a data breach—should be of paramount concern to directors.

One of the biggest concerns facing boards is how to provide effective oversight of cybersecurity. The following are questions that boards should be asking:

Governance. Has the board established a cybersecurity review > committee and determined clear lines of reporting and > responsibility for cyber issues? Does the board have directors with the necessary expertise to understand cybersecurity and related issues?

Critical asset review. Has the company identified what its highest cyber risks assets are (e.g., intellectual property, personal information and trade secrets)? Are sufficient resources allocated to protect these assets?

Threat assessment. What is the daily/weekly/monthly threat report for the company? What are the current gaps and how are they being resolved?

Incident response preparedness. Does the company have an incident response plan and has it been tested in the past six months? Has the company established contracts via outside counsel with forensic investigators in the event of a breach to facilitate quick response and privilege protection?

Employee training. What training is provided to employees to help them identify common risk areas for cyber threat?

Third-party management. What are the company’s practices with respect to third parties? What are the procedures for issuing credentials? Are access rights limited and backdoors to key data entry points restricted? Has the company conducted cyber due diligence for any acquired companies? Do the third-party contracts contain proper data breach notification, audit rights, indemnification and other provisions?

Insurance. Does the company have specific cyber insurance and does it have sufficient limits and coverage?

Risk disclosure. Has the company updated its cyber risk disclosures in SEC filings or other investor disclosures to reflect key incidents and specific risks?

The SEC and other government agencies have made clear that it is their expectation that boards actively manage cyber risk at an enterprise level. Given the complexity of the cybersecurity inquiry, boards should seriously consider conducting an annual third-party risk assessment to review current practices and risks.

Risk Management

Risk management goes hand in hand with strategic planning—it is impossible to make informed decisions about a company’s strategic direction without a comprehensive understanding of the risks involved. An increasingly interconnected world continues to spawn newer and more complex risks that challenge even the best-managed companies. How boards respond to these risks is critical, particularly with the increased scrutiny being placed on boards by regulators, shareholders and the media. In a recent survey, directors and general counsel identified IT/cybersecurity as their number one worry, and they also expressed increasing concern about corporate reputation and crisis preparedness. [6]

Given the wide spectrum of risks that most companies face, it is critical that boards evaluate the manner in which they oversee risk management. Most companies delegate primary oversight responsibility for risk management to the audit committee. Of course, audit committees are already burdened with a host of other responsibilities that have increased substantially over the years. According to Spencer Stuart’s 2015 Board Index, 12 percent of boards now have a stand-alone risk committee, up from 9 percent last year. Even if primary oversight for monitoring risk management is delegated to one or more committees, the entire board needs to remain engaged in the risk management process and be informed of material risks that can affect the company’s strategic plans. Also, if primary oversight responsibility for particular risks is assigned to different committees, collaboration among the committees is essential to ensure a complete and consistent approach to risk management oversight.

Social Media

Companies that ignore the significant influence that social media has on existing and potential customers, employees and investors, do so at their own peril. Ubiquitous connectivity has profound implications for businesses. In addition to understanding and encouraging changes in customer relationships via social media, directors need to understand and weigh the risks created by social media. According to a recent survey, 91 percent of directors and 79 percent of general counsel surveyed acknowledged that they do not have a thorough understanding of the social media risks that their companies face. [7]

As part of its oversight duties, the board of directors must ensure that management is thoughtfully addressing the strategic opportunities and challenges posed by the explosive growth of social media by probing management’s knowledge, plans and budget decisions regarding these developments. Given new technology and new social media forums that continue to arise, this is a topic that must be revisited regularly.

M&A Developments

M&A activity has been robust in 2015 and is on track for another record year. According to Thomson Reuters, global M&A activity exceeded $3.2 trillion with almost 32,000 deals during the first three quarters of 2015, representing a 32 percent increase in deal value and a 2 percent increase in deal volume compared to the same period last year. The record deal value mainly results from the increase in mega-deals over $10 billion, which represented 36 percent of the announced deal value. While there are some signs of a slowdown in certain regions based on deal volume in recent quarters, global M&A is expected to carry on its strong pace in the beginning of 2016.

Directors must prepare for possible M&A activity in the future by keeping abreast of developments in Delaware case law and other trends in M&A. The Delaware courts churned out several noteworthy decisions in 2015 regarding M&A transactions that should be of interest to directors, including decisions on the court’s standard of review of board actions, exculpation provisions, appraisal cases and disclosure-only settlements.

Board Composition and Succession Planning

Boards have to look at their composition and make an honest assessment of whether they collectively have the necessary experience and expertise to oversee the new opportunities and challenges facing their companies. Finding the right mix of people to serve on a company’s board of directors, however, is not necessarily an easy task, and not everyone will agree with what is “right.” According to Spencer Stuart’s 2015 Board Index, board composition and refreshment and director tenure were among the top issues that shareholders raised with boards. Because any perceived weakness in a director’s qualification could open the door for activist shareholders, boards should endeavor to have an optimal mix of experience, skills and diversity. In light of the importance placed on board composition, it is critical that boards have a long-term board succession plan in place. Boards that are proactive with their succession planning are able to find better candidates and respond faster and more effectively when an activist approaches or an unforeseen vacancy occurs.

Audit Committees

Averaging 8.8 meetings a year, audit continues to be the most time-consuming committee. [8] Audit committees are burdened not only with overseeing a company’s risks, but also a host of other responsibilities that have increased substantially over the years. Prioritizing an audit committee’s already heavy workload and keeping directors apprised of relevant developments, including enhanced audit committee disclosures, accounting changes and enhanced SEC scrutiny will be important as companies prepare for 2016.

Executive Compensation

Perennially in the spotlight, executive compensation will continue to be a hot topic for directors in 2016. But this year, due to the SEC’s active rulemaking in 2015, directors will have more to fret about than just say-on-pay. Roughly five years after the Dodd-Frank Wall Street Reform and Consumer Protection Act was enacted, the SEC finally adopted the much anticipated CEO pay ratio disclosure rules, which have already begun stirring the debate on income inequality and exorbitant CEO pay. The SEC also made headway on other Dodd-Frank regulations, including proposed rules on pay-for-performance, clawbacks and hedging disclosures. Directors need to start planning how they will comply with these rules as they craft executive compensation for 2016.

Proxy Access

2015 was a turning point for shareholder proposals seeking to implement proxy access, which gives certain shareholders the ability to nominate directors and include those nominees in a company’s proxy materials. During the 2015 proxy season, the number of shareholder proposals relating to proxy access, as well as the overall shareholder support for such proposals, increased significantly. Indeed, approximately 110 companies received proposals requesting the board to amend the company’s bylaws to allow for proxy access, and of those proposals that went to a vote, the average support was close to 54 percent of votes cast in favor, with 52 proposals receiving majority support. [9] New York City Comptroller Scott Springer and his 2015 Boardroom Accountability Project were a driving force, submitting 75 proxy access proposals at companies targeted for perceived excessive executive compensation, climate change issues and lack of board diversity. Shareholder campaigns for proxy access are expected to continue in 2016. Accordingly, it is paramount that boards prepare for and monitor developments in proxy access, including, understanding the provisions that are emerging as typical, as well as the role of institutional investors and proxy advisory firms.

The complete publication is available here.

Endnotes:

[1] Activist Insight, “2015: The First Half in Numbers,” Activism Monthly (July 2015).
(go back)

[2] Activist Insight, “Activist Investing—An Annual Review of Trends in Shareholder Activism,” p. 8. (2015).
(go back)

[3] David Benoit and Kirsten Grind, “Activist Investors’ Secret Ally: Big Mutual Funds,” The Wall Street Journal (August 9, 2015).
(go back)

[4] PwC’s 18th Annual Global CEO Survey 2015.
(go back)

[5] Ponemon Institute’s 2015 Global Megatrends in Cybersecurity (February 2015).
(go back)

[6] Kimberley S. Crowe, “Law in the Boardroom 2015,” Corporate Board Member Magazine (2nd Quarter 2015). See also, Protiviti, “Executive Perspectives on Top Risks for 2015.”
(go back)

[7] Kimberley S. Crowe, supra.
(go back)

[8] 2015 Spencer Stuart Board Index, at p. 26.
(go back)

[9] Georgeson, 2015 Annual Corporate Governance Review, at p. 5.
(go back)

Recrudescence de l’activisme des actionnaires en Europe


Voici un article très bien documenté sur la recrudescence de l’activisme des actionnaires en Europe.

L’actif sous contrôle des activistes européens est passé de 21,7 B $, en 2012, à 27,5 B $, en 2015.

Bonne lecture !

Activist Investing in Europe: A Special Report

 

The inaugural edition of this report, published nearly two years ago, suggested that so long as opportunities presented themselves, activists would continue to seek governance, strategy and capital allocation reforms from European issuers. Indeed they have. After ebbing briefly in 2014, when only 51 companies were publicly targeted (after 61 in 2012 and 59 in 2013), activism has roared back, with 67 companies targeted in 2015 and 64 in the first half of 2016 alone. Assets under management for European activists have grown slowly in that period—from $21.7 billion in 2012 to $27.5 billion in 2015—suggesting the growth has been funded by new entrants and foreign players.

Even publicity-shy activists who have been working with companies behind closed doors for many years concede that the growth in activism in Europe is accelerating. Some see a cyclical boom, with activists hoping to catalyse M&A. Yet on topics such as remuneration, and with the launch of specialist European activist funds, the change appears built to last. Part of the evolution of activism in Europe has been the success of tactics seen as more common in the U.S., including proxy contests. Although longer-term participants and the bulk of campaigns suggest lowkey, collaborative approaches are still more common, activists are becoming less shy about testing where the boundaries lie.

The five countries covered in detail in this post represent approximately 80% of the companies targeted by activists since 2010, although in the past two-and-a-half years the level has been lower. Outside of their ranks, Scandinavia and the Netherlands are popular hunting grounds, while Southeastern Asset Management picked up a board seat at Spain’s Applus in July.

Future editions of this report will have to find a different flag for the front cover, following the U.K.’s decision to leave the European Union. The impact on activism in Europe could be still more profound. In the short period since the referendum, stock markets all over Europe dipped temporarily, creating buying opportunities at export-led companies. Elliott Management, a U.S. hedge fund with a well-established London office, has disclosed four positions since the vote (although it held some as toe-holds previously). Some of these companies were already subject to takeover offers, and Elliott has agitated for higher bids.

Another development, albeit not directly connected with traditional forms of activism, is the rise of activist short selling, where investors bet against a company and attempt to convince investors the stock price will drop. Such campaigns more than doubled from 2014 to 2015, and gained prominence after fuelling sell-offs at the likes of Quindell and Wirecard. Already in the first half of 2016, six companies had been targeted.

The U.S. has seen activism spread beyond a disciplined asset class in recent years. Whether European investors prove to be quite as demanding remains to be seen. But if markets continue to be volatile, opportunities for value investors, arbitrageurs and short sellers will be more plentiful. Recent events suggest there will be opportunists to match.

United Kingdom

Activism has roared back to prominence in the United Kingdom since 2014, with three high-profile proxy battles and the first FTSE 100 company accepting an activist into its boardroom.

ValueAct Capital Partners, a San Francisco-based hedge fund known for its engagements with Adobe and Microsoft, prefers to be seen as a cooperative investor. It generally avoids aggressive tactics such as proxy fights, lawsuits and public letter-writing, preferring testimonials from CEOs it has worked with in the past. Investing in Rolls-Royce Holdings, with its strategically important submarine business and stately shareholders, required a display of deference. As well as hiking its stake to above 10%, the fund worked with new CEO Warren East for over 200 days before its nominee was offered a board seat.

Others have taken less conciliatory paths. Sherborne Investors, defeated in a 2014 proxy contest at Electra Private Equity, raised its stake to 30% before finally winning two board seats the following year. Since then, almost all the other directors have been forced out, and the fund’s external manager served notice. Smoother contests saw victories for Elliott Management at Alliance Trust and the family office of Luis Amaral at Stock Spirits. Yet whereas the former has reformed slowly, attracting potential suitors in the process, the latter has descended into acrimony. The Stock Spirits board may have promised not to engage in acquisitions and to pay a special dividend, but risked conflict by designating the activist nominees non-independent.

Strong shareholder rights, including the ability to call a meeting with just 5% of shares, and a highly liquid and dispersed market, should mean the U.K. continues to be a focal point for activism in Europe. With stocks initially down sharply after the country voted to leave the European Union, a few bargain-hunters may even be preparing campaigns.

skadden-1

Proxy fights have become increasingly common at U.K. companies, with activists claiming a better record of success than in previous years after the Alliance Trust watershed. Toscafund, fighting the first in its 16-year history, will hope that track record continues. Elliott Management has also made merger arbitrage central to its strategy in recent years. Although operational activist Cevian Capital appears to be more focused on Continental Europe, turnarounds at exporters Rolls-Royce Holdings and Meggit are attracting activist attention.

skadden2

Activism in the U.K. increased steadily after the financial crisis, culminating in the shareholder spring of 2012. Despite a dip thereafter, 2015 and 2016 have seen steadily more activity and this year is expected to be the busiest year yet.

* as of 30th June 2016. Projected full-year figure shown in dotted box.

skadden3

Easy access to shareholder rights, including meeting requisitions and proposals ensure that smaller companies are always vulnerable to activism. With several well funded and established activists setting up in London, however, large cap companies are starting to draw more attention.

Shareholder Activism—recent developments in the U.K.

Continuing the trend of previous years, the U.K. continues to see the lion’s share of activism in Europe. Over the last 12 months, approximately 43% of all European campaigns were played out in the U.K., according to Activist Insight data. Whilst the traditional mix of activist strategies were deployed, attempts to obtain board representation received most attention and generated most success.

In April 2015, Elliott Management’s criticism of Alliance Trust’s poor performance and high costs resulted in two new non-executive directors (“NED”) being appointed to the latter’s board. At Stock Spirits, Western Gate Private Investment’s (“WGPI”) complaints of “spiraling costs” and a board prone to “group-think” also resulted in the appointment of two NEDs following a shareholder vote. At Rolls- Royce Holdings, too, ValueAct Capital’s complaints regarding a fifth profit warning in two years resulted in a NED appointment for ValueAct’s chief operating officer in return for the promise that ValueAct would not lobby for a break-up of the company, nor increase its stake above 12.5%.

In each of these cases, the activists’ public rationale for supporting NED appointments has been to better long-term results through improved corporate governance and executive scrutiny. Also notable is that in two of the cases mentioned above, new appointments were subject to negotiation and compromise, with the activists accepting limitations on the extent of their directors’ participation in board meetings and board committees.

Board appointments have not gone without criticism, however, particularly regarding the perceived lack of independence of the new directors. Certainly, fears over conflicts of interest can have practical implications. In the case of Rolls-Royce,

ValueAct’s seat on the board was subject to limited rights: it has no ability to propose changes in strategy or management, call a shareholder meeting nor push for mergers or acquisitions. At Stock Spirits, the new NEDs have been prevented from sitting on certain committees and the chairman has publicly stated that they may be asked to leave meetings where commercially sensitive information, such as pricing, is discussed.

The U.K.’s legal, regulatory and political landscape remains supportive of shareholder engagement, and activists will leverage this to reinforce their (shorterterm) theses. Witness the increasing activity of Investor Forum (the “Forum”), whose 40 members own approximately 42% of the FTSE All Share Index. The Forum seeks to promote long-term investment and collective engagement with U.K. companies by its members. In August, after over a year of private engagement with Sports Direct alongside major institutions holding approximately 12% of Sports Direct, the Forum issued a press release calling for a comprehensive and independent review of corporate governance at the company.

Whilst the mechanics for investor engagement have remained largely constant over the last few years in the U.K., the grounds for activist shareholders to demand change remains dynamic. In addition to the traditional activist calling cards of under-par growth, over-inflated executive salaries and deficiencies in corporate governance, Britain’s recent referendum vote to leave the European Union may lead to some boards being challenged on their strategies to cope with Brexit. For so long as activists can continue to find intrinsic, unlocked value in U.K. companies, the facilitative environment and dynamic business conditions will continue to catalyse activism in the U.K.

skadden4

France

Controlling shareholders, double voting rights and government stakes in key industries make activism a challenging proposition in France, though there is no sign of activists abandoning their ambitions altogether. Last year, Airbus quietly sold its stake in Dassault Aviation in order to buyback shares, a year after The Children’s Investment Fund suggested the move.

Admittedly, not all activists have had such success. Elliott Management is currently in a legal battle with XPO Logistics Europe (formerly Norbert Dentressangle). Although it failed to remove CEO Troy Cooper at this year’s annual meeting, it owns enough to prevent the U.S. parent from delisting the company. In 2015, U.S.-based P. Schoenfeld Asset Management (“PSAM”) acquired a small stake in Vivendi and suggested selling Universal Music Group in order to pay larger dividends. Vivendi Chairman Vincent Bolloré increased his stake and pushed through double voting rights for long-term investors, enhancing his control.

Nonetheless, activism has begun to thrive in France. Electrical parts company Rexel waved goodbye to its CEO just months after Cevian Capital disclosed a stake earlier this year, Carrefour faced another request for board seats, and a merger between Maurel & Prom and MPI saw opposition from U.K. and South African funds. Meanwhile, the Paris-based hedge fund CI-AM has been making a name for itself, attempting to use the courts to stop the takeover of Club Med by China Fosun International and to reshape a licensing agreement between Euro Disney and The Walt Disney Company, to ensure investors in the Paris theme park were adequately compensated.

Activist short selling is also making its presence felt. In December, Muddy Waters Research released a 22-page report on grocery chain Groupe Casino, which it said was “dangerously leveraged, and… managed for the very short term.” Shares were down 11.6% a week after the report was published.

skadden5

Elliott has already been holding out at Norbert Dentressangle for more than a year, preventing the company from delisting following a takeover bid by XPO Logistics. An attempt to take the chairman role from CEO Troy Cooper at this year’s annual meeting failed, but the company has yet to be delisted–unlike MPI, which has now been merged with Maurel & Prom. Vincent Bolloré shows no signs being slowed down by U.S. activists such as P. Schoenfeld Asset Management, which won dividends but no seat on the board from a 2015 raid. In December, Muddy Waters Research released a much discussed short report on grocer Groupe Casino.

skadden6

2015 saw a sudden renewal of activist interest in France, coming close to the peak of 2012. So far, 2016 is off to a reasonable start, although it seems the country will continue to be targeted intermittently.

* as of 30th June 2016. Projected full-year figure shown in dotted box.

skadden7

Activist targets tend to be larger, on average, in France than in other countries, perhaps because they are more likely to be susceptible to international pressure. However, a rising number of campaigns at small cap companies may presage a busier market in future.

France is in the process of strengthening its Say on Pay

The emergence of shareholder activism in France over the last decade has been supported by the development of corporate governance rules and best practices. A number of campaigns following the global financial crisis focused on corporate governance, including the separation of chairmen and CEO roles, management performance and compensation.

Say on Pay was introduced in France in 2013 in the form of a soft law set forth in the corporate governance code applicable to French listed companies (the “AFEP-MEDEF Code”). France opted for an annual non-binding shareholder vote on all forms of compensation paid or granted to the company’s officers, including the chairman (vote consultatif des actionnaires). If compensation is rejected, a board is required to post a release on the company’s website following its next board meeting detailing how it intends to deal with such vote.

As the vote is non-binding, the general view until now is that boards may maintain compensation granted to the company’s officers, even when it is rejected by shareholders, or receives very limited support. In 2016, Renault and Alstom’s CEO compensation gave rise to a negative Say on Pay vote by shareholders. In the case of Renault, the board met immediately after the meeting and decided to confirm the 2015 compensation of the company’s CEO, generating criticism from the French state, which holds a significant stake in Renault, and politicians, as well as questions on the efficacy of French Say on Pay.

Following the Renault controversy, a public consultation was launched in order to, amongst other things, strengthen the Code’s Say on Pay provisions. The proposed new wording (likely to be in force from September 2016), is somewhat more restrictive than that currently in force, as it contemplates an express obligation for the board to amend the relevant officers’ compensation for the previous year or the company’s management compensation policy for the future. The French government also proposed in early June in a bill currently under discussion at the French Parliament (the “Loi Sapin II”) to introduce a binding Say on Pay in the French Commercial Code. This bill was highly debated and, at the date hereof, the French Assemblée Nationale and Sénat have taken different positions on this topic.

In the context of this reform, it is essential that French legislators bear in mind that the board has always been and shall remain the competent corporate body to fix the compensation granted to the company’s officers. In particular, the board is the sole corporate body which can set the applicable performance criteria for the annual and long-term variable remuneration of the company’s officers and assess whether or not these criteria have been met. In our view, the best way to achieve a well-balanced system would be to implement a Say on Pay inspired by the U.K. model, with (i) a binding shareholder vote every three or four years on the company’s compensation policy, and (ii) a nonbinding shareholder vote every year on the compensation granted to the company’s officers for the previous fiscal year, without any effect provided that such compensation complies with the management compensation policy approved by the shareholders.

Germany

Shareholders have always occupied a more complicated role in Germany, where a two-tier board structure gives labour unions and other interest groups a role, while limiting direct contact with executives.

In recent years, however, activists have descended on Germany. Knight Vinke, a Monaco-based hedge fund that specialises in large cap companies, has written a white paper on how E.On should be reshaped, while Cevian Capital has stakes in Bilfinger and ThyssenKrupp, where it is practising its traditional long-term, operational style of activism. Sports retailer Adidas has been forced to deny suggestions that Southeastern Asset Management was behind a decision to sell its golf division.

Events at Volkswagen since the emissions scandal highlight both the opportunities and the challenges for activism in Germany. London-based hedge fund The Children’s Investment Fund (“TCI”), wrote a scathing public letter in May, attacking executive compensation and deals with local state officials and unions that had damaged productivity levels.

Other investors sought to use Volkswagen’s annual meeting to send a message by attempting to deny management board members discharge from liability for their decisions and to halt dividend payments. Despite a number of investors speaking at the meeting and criticism from proxy voting advisers, the management resolutions were carried comfortably, reflecting the concentrated ownership of the Porsche and Piëch families.

A proxy contest at drugmaker Stada Arzneimittel may yet present activists with a path to influencing German companies, however. Investors defied management to elect a director selected by Active Ownership Capital (“AOC”), voted down Chairman Martin Abend and rejected the company’s remuneration plan. Other investors have openly called for the company to be sold, although AOC denied it would push for this.

skadden8

The proxy contest at Stada Arzneimittel is a rare beast in a country that generally encourages activists to work more with management than directors to get things done. Even The Children’s Investment Fund Management, which has a fearsome reputation, is relying on its bully pulpit as a shareholder in Volkswagen to get things done, rather than initiating a formal contest. Activists have appointed supervisory board members in the past, however. Cevian Capital, a big player in the region, is currently involved at several construction sector companies.

skadden9

A wave of merger arbitrage by activists such as Kerrisdale Capital and Elliott Management as well the traditional activism of Cevian Capital made 2013 a banner year for activism in Germany. Cevian are showing the country more attention than ever, with 2016 on course to finish strongly.

* as of 30th June 2016. Projected full-year figures shown in dotted box.

skadden10

Growing interest in activism in Germany has seen a wider range of market caps affected by activism since our last report. Both mid cap and large cap targets have increased in prominence, thanks to well-resourced activists showing interest in recent years.

New players rising

Shareholder activism in Germany continues to receive attention from the public, particularly with new domestic and short selling activists that understand how to utilise statutory legal instruments to implement their strategies entering the stage.

Elliott Management, a typical activist investor in special situations, continued to fiercely enforce its claim for an increase of the consideration for its 14.4% stake in Kabel Deutschland as part of the tender offer by Vodafone Group. In 2013, Elliott requested a special audit to review the offer of €84.53 per share. Since Vodafone vetoed a further special audit at the 2015 annual meeting, Elliott filed a court action requesting a further special audit alleging that €188 would have been fair; it seized upon its right pursuant to Sec. 145 German Stock Corporation Act (“AktG”). The court ruled in favour of Elliott, while the verdict of the further audit is outstanding.

Turning to “strategic” activists, with Active Ownership Capital (“AOC”) a new German player has entered the stage. In April 2016, AOC purchased a 5.1% position in Stada Arzneimittel and requested the replacement of initially five, later three, of the nine members of Stada’s supervisory board. Originally, Stada accepted these nominations but then changed its mind, eventually adjourning its annual meeting by nearly three months. Meanwhile AOC established a shareholders’ forum (Sec. 127a AktG) asking major shareholders to nominate candidates for election, eventually picking four to take into the proxy contest. Additionally, AOC called for the election of a new auditor; then it proposed the replacement of management board members even though the management board is appointed by the supervisory board whose members are independent from shareholders. AOC has been supported by Guy Wyser-Pratte and German Shareholder Value Management, drawing scrutiny by the German supervisory authority BaFin. It remains unclear whether AOC is seeking a longterm partnership or publicity to raise Stada’s market value, possibly with the goal of a sale; respective rumours of a partial or complete sale have evolved.

Besides the shareholders’ forum and direct communication with management, AOC essentially may use the following legal instruments: request that discharge of management not be granted on an individual basis (Sec. 120 para. 1 sent. 2 AktG), individual election of supervisory board members (Sec. 5.4.3 German Corporate Governance Code) and voting on its own director nominees prior to candidates proposed by management, thus enhancing their chances for election (Sec. 137 AktG).

The influence of activists is further proven by Cevian Capital’s investment in Bilfinger. For years Cevian has closely followed Bilfinger’s management and presumably “installed” Eckhard Cordes as chairman of the supervisory board, prompting various changes to the management board.

Aside from some other campaigns, a new kind of activists has emerged—those selling shares short and spreading news adversely affecting the share price. The lawfulness of this may be doubted. Examples include Muddy Waters (at Ströer) and Zatarra (Wirecard).

This illustrates the continuing increase in shareholder activism in Germany and that German law provides requisite instruments for it.

Italy

Shareholder representation on company boards is the rule and not the exception in Italy, with large investors dividing board seats amongst themselves and majority shareholders choosing managers. As of 2014, 83% of listed companies had a controlling shareholder, or a coalition of shareholders in control. However, the long-term trend is that the weight of the owners is slowly decreasing, and the presence of foreign institutional investors rising.

Moreover, the country’s prolonged economic crisis and new laws have weakened families and institutions that have controlled Italy’s largest companies for decades. Changes include the conversion of the largest co-operative banks into limited companies, a ban on director overboarding within competing entities in the financial sector, and limits on the grip of foundations on the country’s banks.

Railway signalling group Ansaldo STS has recently faced one of the most outspoken activist campaigns ever seen in the country, with Elliott Management and Amber Capital fighting for an increase in the price of a tender offer by Japan’s Hitachi—which recently acquired the Italian company’s controlling stake. Elliott also exploited Italy’s proxy access rules to elect three directors to the board of Ansaldo STS.

London-based Amber, which has an office in Milan, is also fighting a battle at dairy multinational Parmalat, where it has a board seat and accuses the controlling shareholder of improper related-party transactions.

In the 2016 proxy season, the Investment Managers’ Committee, an association assisting investment firms in nominating independent directors, submitted slates at 34 companies—up from 14 in 2013–and elected close to 60 board members, largely thanks to laws granting seats to minority shareholders.

skadden11

Elliott Management has launched one of the most outspoken activist campaigns ever seen in Italy, electing three directors at Ansaldo STS and filing a lawsuit to gain complete control of the board. Amber Capital is engaging with several companies, and a battle with Parmalat’s largest shareholder that started in 2012 is still ongoing. In 2015, Vincent Bolloré’s Vivendi won three seats on the board of Telecom Italia.

skadden12

Activism in Italy has been rising steadily since the eurozone crisis, and 2016 is the busiest year on record as regulatory reform increases the scope for investors to apply pressure.

* as of 30th June 2016. Projected full-year figures shown in dotted box.

skadden13

Activism in Italy is dominated by companies with a market capitalisation of less than 1.8 billion euros, although high-profile examples of large companies being targeted can be found.

Switzerland

Activism in Switzerland continues to play a role in several aspects of corporate life. Despite campaigns at the likes of Transocean, Xstrata and UBS, the country has previously been thought of as unfavourable to activism because, as in Germany, many companies have dual board structures. However, that failed to stop investors recently demanding changes to boards at Holcim, fashion retailer Charles Vögele and listed hedge fund Altin.

M&A activity including some of the largest Swiss companies, such as Syngenta and LafargeHolcim, has forced management teams to engage more meaningfully with shareholders, although investors have been less successful in wringing out meaningful concessions than in 2012, when a shareholder vote on golden parachutes for Xstrata executives forced the resignation of Chairman John Bond.

At Sika, a specialty chemicals company, Bill Gates’ family office Cascade Investment has opposed a takeover offer from Cie de Saint-Gobain, lobbying the takeover panel to force the bidder to tender for minority shareholders’ stakes. At the time of writing, Swiss courts were being asked to decide whether Sika could limit the majority voting rights of its founding family, which sold its 16% stake to the bidder.

A campaign at Altin highlights the lengths activists have to go to in Switzerland. In February, Alpine Select requisitioned a shareholder meeting to vote on the appointment of three new directors and a special dividend. When Alpine won just one seat on the board, its nominee resigned, and it went on to build a majority stake before negotiating an agreement whereby the company nominated three new directors, paid a hefty dividend and agreed to delist from the London Stock Exchange. Altin CEO Tony Morrongiello also announced his resignation in favour of Alpine’s Claudia Habermacher at the June annual meeting.

skadden14

The restricted power of dual-class Swiss boards often limits investors to complaining about decisions from outside the boardroom—as with the appointment of Adecco’s new CEO—or legal action—as Bill Gates’ family office Cascade Investment is pursuing at Sika. Mergers have also catalysed activism, with Syngenta and Holcim targeted. As ever, Cevian Capital is present through its stake in ABB, while Swiss activist Telios may be one to watch in the future.

skadden15

After an exceptionally busy 2015, this year has a lot to live up to. However, activists have started strongly, targeting more companies than in any year before 2015.

* as of 30th June 2016. Projected full-year figures shown in dotted box.

skadden16

The make up of activist targets has changed only slightly in recent years. Many Swiss targets of activists being international by nature and often involved in crossborder mergers, the predominance of large cap targets is perhaps not surprising.

Prélude à un code de gouvernance aux É.U. !


Voici un bref article de Gary Larkin, associé à The Conference Board Governance Center, qui porte sur la perspective de concevoir un code de gouvernance qui  s’adresse à l’ensemble des entreprises publiques (cotées) américaines.

Le projet de code est l’initiative de quelques leaders d’entreprises cotées, de gestionnaires d’actif, d’un gestionnaire de fonds de pension et d’un actionnaire activiste.

Cet énoncé des grands principes de gouvernance se veut un exercice devant jeter les bases d’un code de gouvernance comme on en retrouve dans plusieurs pays, notamment au Royaume-Uni.

Voici les points saillants des principes retenus :

 

Every board should meet regularly without the CEO present, and every board should have active and direct engagement with executives below the CEO level.

Directors should be elected by a majority  of either “for” or “against/withhold” votes (with abstentions and non-votes not be counted)

Board refreshment should always be considered in order that the board’s skillset and perspectives remain current.

Every board should have members with complementary and diverse skills, backgrounds and experiences.

If the board decides on a combined CEO/Chair role, it is essential that the board have a strong independent director.

Institutional investors that make decisions on proxy issues important to long-term value creation should have access to the company, its management, and, in some circumstances, the board.

Companies should only provide earnings guidance to the extent they believe it is beneficial to shareholders.

Bonne lecture !

 

It’s Commonsense to Have a U.S. Corporate Governance Code

 

lp-corp-gov-charter_880x330

 

Over the summer, one of the most interesting pieces of corporate governance literature was the Commonsense Corporate Governance Principles.

The publication was the result of meetings between a group of leading executives of public companies, asset managers, a public pension fund, and a shareholder activist. The principles themselves may not have broken new ground—they addressed such basic issues as director independence, board refreshment and diversity, the need for earnings guidance, and shareholder engagement.  But the fact that such a publication was released at a time when some in Congress to roll back Dodd-Frank corporate-governance-related regulations is impressive.

It’s impressive because of who was in the meetings. It’s impressive because the meetings took place without any government or third-party instigation. It’s impressive because it might be the beginning of a new strategy for overseeing corporate governance in the United States. It shows that sometimes industry can lead by example without rules and regulations to tell them how to govern their own companies and boards.

Maybe these principles could be the start of the first true US corporate governance code, something that our brethren in the UK have had for years. Even smaller markets such as South Africa and Singapore have codes that are used to guide corporate governance.

Granted, those at the meetings, some of who included J. P. Morgan Chase CEO Jamie Dimon, Berkshire Hathaway chief Warren Buffett, General Motors head Mary Barra, BlackRock Chair and CEO Larry Fink, and Canada Pension Plan Investment Board President and CEO Mark Machin might not have envisioned themselves as U.S. corporate governance pioneers. But it’s a first step toward a true principles-based approach to good corporate governance in a country that is used to following rules and hiring attorneys to find the loopholes.

If you look at the main points made in the Commonsense Principles, you can see the foundation for such a code:

  1. Every board should meet regularly without the CEO present, and every board should have active and direct engagement with executives below the CEO level.
  2. Directors should be elected by a majority  of either “for” or “against/withhold” votes (with abstentions and non-votes not be counted)
  3. Board refreshment should always be considered in order that the board’s skillset and perspectives remain current.
  4. Every board should have members with complementary and diverse skills, backgrounds and experiences.
  5. If the board decides on a combined CEO/Chair role, it is essential that the board have a strong independent director.
  6. Institutional investors that make decisions on proxy issues important to long-term value creation should have access to the company, its management, and, in some circumstances, the board.
  7. Companies should only provide earnings guidance to the extent they believe it is beneficial to shareholders.

Microsoft, a Governance Center member, is satisfied with the Commonsense Principles because it aligns with what it has in place, according to a blog from Microsoft Corporate Secretary John Seethoff. “For example, we’ve made a concerted effort to assure board refreshment occurs with a focus on diversity in skillsets, backgrounds, and experiences,” he wrote. “The Principles agree with this emphasis, asserting, ‘Diversity along multiple dimensions is critical to a high-functioning board. Director candidates should be drawn from a rigorously diverse pool.’ Board tenure receives similarly thoughtful consideration, with the Principles underscoring the need to temper ‘fresh thinking and new perspectives’ with ‘age and experience.’”

Seethoff concluded: “At Microsoft, we’ve long believed that good corporate governance encourages accountability and transparency, as well as promotes sound decision-making to support our business over time. The ultimate goal is to create a system that provides appropriate structure for the company at present, allows flexibility to change in the future, and has a long-term perspective that matches our business objectives and strategy. As part of this open, constructive mindset, we applaud the leaders for outlining these Principles and look forward to continued dialogue on this important effort.”

If you ask me, the Commonsense Principles can definitely be the US Corporate Governance Code Version 1.0. They could be treated like climate change agreements (i.e. the 2015 Paris Climate Change Agreement) where countries come together and sign on. The original group of executives could hold a follow-up meeting or convention that would allow US companies to promise to follow the principles, similar to The Giving Pledge started by Buffet and Microsoft founder Bill Gates.

L’évolution de la divulgation des comités d’audit aux actionnaires


Voici un article d’Ann Yerger, directrice du Center for Board Matters, de la firme Ernst & Young, qui porte sur l’évolution significative des politiques de divulgation des comités d’audit aux actionnaires des entreprises cotées en bourse aux États-Unis en 2106. L’article est paru sur le site du Harvard Law School Forum on Corporate Governance le 9 octobre.

L’étendue des divulgations aux actionnaires est vraiment très importante dans certains cas. Par exemple, en 2012, seulement 42 % des entreprises dévoilaient explicitement que le comité d’audit était responsable de l’engagement, de la rémunération et de la surveillance des auditeurs externes, alors qu’en 2016, 82 % divulguent, souvent en détail, les informations de cette nature.

Plusieurs autres résultats font état de changements remarquables dans la reddition de compte des comités d’audit aux actionnaires des entreprises.

Ceux-ci sont maintenant plus en mesure d’évaluer la portée des décisions des comités d’audit eu égard à la qualité du travail des auditeurs externes, aux raisons invoquées pour changer d’auditeur externe, à la fixation du mandat de l’auditeur externe, à la composition du comité d’audit, à l’augmentation des honoraires des firmes comptables dans les quatre catégories suivantes : audit, relié aux travaux d’audit, fiscalité et autres services connexes, etc.

Bonne lecture !

Audit Committee Reporting to Shareholders in 2016

 

audit

 

Audit committees have a key role in overseeing the integrity of financial reporting. Nevertheless, relatively little information is required to be disclosed by US public companies about the audit committee’s important work. Since our first publication in this series in 2012, we have described efforts by investors, regulators and other stakeholders to seek increased audit­-related disclosures, as well as the resulting voluntary disclosures to respond to this interest.

Over 2015–2016, US regulators have placed a spotlight on audit-related disclosures and financial reporting more generally. The US Securities and Exchange Commission (SEC) and the US Public Company Accounting Oversight Board (PCAOB) have both taken action to consider the possibility of requiring new disclosures relating to the audit.

SEC representatives also have used speeches to urge companies and audit committees to increase disclosures in this area voluntarily. While additional disclosure requirements for audit committees are not expected in the near term, regulators continue to monitor developments in this area. This post seeks to shed light on the evolving audit­-related disclosure landscape.

Context

Public company audit committees are responsible for overseeing financial reporting, including the external audit. Under US securities laws, audit committees are “directly responsible for the appointment, compensation, retention and oversight” of the external auditor, and must include a report in annual proxy statements about their work. This audit committee report, however, currently must affirm only that the committee carried out certain specific responsibilities related to communications with the external auditor, and this requirement has not changed since 1999.

In recent years, a variety of groups have brought attention to the relative lack of information available about the audit committee and the audit, including their view that this area of disclosure may not have kept up with the needs of investors and other proxy statement users. These groups include pension funds, asset managers, investors, corporate governance groups, and domestic and foreign regulators. As efforts to seek additional information have continued, there has been a steady increase in voluntary audit-related disclosures.

Over the last year, the SEC has taken a series of actions to consider whether and how to improve transparency around audit committees, audits and financial reporting more generally. The combined effect of these activities has been to increase engagement by issuers, audit firms, investors and other stakeholders in discussions about the current state of financial reporting­ related disclosure as well as how it should change.

Findings

Our analysis of the 2016 proxy statements of Fortune 100 companies indicates that voluntaryaudit-related disclosures continue to trend upward in a number of areas. The CBM data for this review is based on the 78 companies on the 2016 Fortune 100 list that filed proxy statements each year from 2012 to 2016 for annual meetings through August 15, 2016. Below are highlights from our research:

  1. The percentage of companies that disclosed factors considered by the audit committee when assessing the qualifications and work quality of the external auditor increased to 50%, up from 42% in 2015. In 2012, only 17% of audit committees disclosed this information.
  2. Another significant increase was in disclosures stating that the audit committee believed that the choice of external auditor was in the best interests of the company and/or the shareholders. In 2016, 73% of companies disclosed such information; in 2015, this percentage was 63%. In 2012, only 3% of companies made this disclosure.
  3. The audit committees of 82% of the companies explicitly stated that they are responsible for the appointment, compensation and oversight of the external auditor; in 2012, only 42% of audit committees provided such disclosures.
  4. 31% of companies provided information about the reasons for changes in fees paid to the external auditor compared to 21% the previous year. Reasons provided in these disclosures include one­-time events, such as a merger or acquisition. Under current SEC rules, companies are required to disclose fees paid to the external auditor, divided into the following categories: audit, audit-related, tax and all other fees. They are not, however, required to discuss the reasons why these fees have increased or decreased. From 2012 to 2016, the percentage of companies disclosing information to explain changes in audit fees rose from 9% to 31%. Additional CBM research examined the disclosures of the subset of studied companies (43) that had changes in audit fees of +/-­ 5% or more compared to the previous year. Out of these 43 companies, roughly 20% provided explanatory disclosures regarding the change in audit fees.
  5. 29 of the 43 companies had fee increases of 5% or more, out of which 8 companies disclosed the reasons for the increases. 14 of the 43 companies had fee decreases of 5% or more, out of which only one company provided an explanatory disclosure.
  6. 53% of companies disclosed that the audit committee considered the impact of changing auditors when assessing whether to retain the current auditor. This was a 6 percentage point increase over 2015. In 2012, this disclosure was made by 3% of the Fortune 100 companies. Over the past five years, the number of companies disclosing that the audit committee was involved in the selection of the lead audit partner has grown dramatically, up to 73% in 2016. In 2015, 67% of companies disclosed this information, while in 2012, only 1% of companies did so.
  7. 51% of companies disclosed that they have three or more financial experts on their audit committees, up from 47% in 2015 and 36% in 2012.

Summary: Trends in Audit Committee Disclosure

(Cliquez pour agrandir)

ey-summary-trends-in-audit-committee

 

Les devoirs des administrateurs eu égard à un climat de travail malsain | Un cas pratique


Voici un cas de gouvernance publié sur le site de Julie Garland McLellan* qui illustre les contradictions entre les valeurs énoncées par une école privée et celles qui semblent animer les administrateurs et les parents.

Le cas montre comment un administrateur, nouvellement élu sur un CA d’une école privée, peut se retrouver dans une situation embarrassante impliquant des comportements de harcèlement et de menaces qui affectent la santé mentale et le bien-être des employés.

Cette situation semble se présenter de plus en plus fréquemment dans les institutions d’enseignement qui visent des rendements très (trop !) élevés.

Comment Ignacio peut-il s’y prendre pour bien faire comprendre aux administrateurs de son CA leurs devoirs et leurs obligations légales d’assurer un climat de travail sain, absent d’agression de la part de certains parents ?

Le cas présente, de façon claire, une situation de culture organisationnelle déficiente ; puis, trois experts en gouvernance se prononcent sur le dilemme qui se présente aux administrateurs qui vivent des expériences similaires.

Bonne lecture ! Vos commentaires sont toujours les bienvenus.

 

Un cas culture organisationnelle déficiente !

 

 drapeau-vicario1

 

Ignacio is an old boy of a private school with a proud sporting tradition. He was invited onto the board last year when a long-serving director retired. The school is well run with a professional principal who has the respect of the staff as well as many of the boys.

The school has worked hard to develop academic excellence and its place in rankings has improved with a greater percentage of boys qualifying for university.

At the last board meeting the CEO was absent. The chairman explained that he had taken stress leave because he couldn’t cope with bullying from some of the parents. Some directors sniggered and the rest looked embarrassed. There were a few comments about ‘needing to grow a backbone’, ‘being a pansy’, and ‘not having the guts to stand up to parents or lead the teams to victory on the field’.

Ignacio was aghast – he asked about the anti-harassment and workplace health and safety policies and was given leave by the chair « to look into ‘covering our backs’ if necessary ».

Ignacio met with the HR manager and discovered the policies were out of date and appeared to have been cut and pasted from the original Department of Education advice without customisation. From his experience running a business Ignacio is aware of the importance of mental health issues in the modern workplace and also of the legal duty of directors to provide a workplace free from bullying and harassment. School staff are all aware of a discrepancy between the stated School values and those of the board and some parents. The HR manager tells him that recent bullying by parents has become more akin to verbal and even physical assault. Staff believe the board will not support them against fee paying parents even though the school is, in theory, a not-for-profit institution.

How can Ignacio help lead his board to an understanding of their duty to provide a safe workplace?

 

Chris’s Answer  …..

 

Julie’s Answer ….

 

Leanne’s Answer ….

*Julie Garland McLellan is a practising non-executive director and board consultant based in Sydney, Australia.