Delaware Law Update

Past Events

Wednesday, March 23, 2022, 11:00 AM to 12:30 PM

@Clayton Hall, University of Delaware : 

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This program will consist of two roundtables that will focus on recent developments and emerging issues in Delaware law. 

“Board Oversight Liability Three Years After Marchand –What Has Changed? What Still May Change?”

In the three years following the Delaware Supreme Court’s decision in Marchand v. Barnhill, 212 A.3d 805 (2019), the Delaware Court of Chancery has considered several motions to dismiss in high-profile cases alleging that a public company board of directors had failed to exercise oversight duties, dismissing some cases and allowing other cases to go forward.   Do these decisions represent an expansion of oversight liability and a change in a director’s standard of conduct, a shift in pleading standards, or both?  Relatedly, what are stockholder plaintiffs focusing on in bringing oversight claims and what are board counselors advising directors about the board’s path forward following an unsuccessful motion to dismiss? The roundtable participants are:

• Rolin Bissell, a Partner at Young, Conaway Stargatt & Taylor, LLP (Moderator)
• Joel Friedlander, Partner, Friedlander & Gorris, P.A.
• Meredith Kotler, Partner, Freshfields Bruckhaus Deringer
• Blake Rohrbacher, Director, Richards Layton & Finger

Materials:

• Panel Slides
  

“Recent Delaware Perspectives on Special Committees and  SPACs”

This panel will discuss two separate, but potentially related topics.  First, special committees:  the Delaware Court of Chancery continues to provide key guidance on the effective use of special committees, including in the context of “controller” transactions. Recent cases not only explore the attributes of a well-functioning committee process (and implications for the applicable standard of judicial review), but provide further evolving insight into what may constitute a “controller” under Delaware law.  Second, SPACs:  in a highly anticipated opinion, the Court of Chancery recently declined to dismiss In re MultiPlan Corp. Stockholders Litigation, providing a window into how the Court might assess future litigation over de-SPACing transactions.  The opinion has given rise to many “take-aways” and questions, including what role, if any, special committees might play going forward in order to mitigate risk in this new area of litigation.  The roundtable participants are:

• Jennifer Voss, a Partner at Skadden, Arps, Slate, Meagher & Flom LLP (Moderator)
• A. Thompson Bayliss – Abrams & Bayliss LLP
• Mark Lebovitch, Partner, Bernstein Litowitz Berger & Grossmann LLP
• Patricia Vella, Partner, Morris, Nichols, Arsht & Tunnell LLP

Materials:

• Panel Slides – Deck 1
• Panel Slides –  Deck 2
• The MH Haberkorn 2006 Trust v. Empire Resorts, Inc.
• In re Pattern Energy Group Inc. Stockholders Litigation
• In re MultiPlan Corp. Stockholders Litigation

UDaily Article

University of Delaware Weinberg Center/ECGI Corporate Governance Symposium

Past Events

Friday, March 11, 2022, 9:30 AM to 3:30 PM @Virtual : 

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Agenda

Co-sponsored with the European Corporate Governance Institute (ECGI)

In collaboration with the European Corporate Governance Institute (ECGI), the John L. Weinberg Center for Corporate Governance and the Department of Finance at the Lerner College of Business & Economics, at the University of Delaware, will host its 2022 Annual Corporate Governance Symposium.

Lunch Presentation: 12:00 pm – 1:00 pm ET

Between the morning and afternoon paper presentation sessions, there will be a presentation by BlackRock on proxy voting choices.

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Papers:

The following are the eight papers that have been selected for presentation at the 2022 Symposium:

Morning Session: Watch Video

• Is History Repeating Itself? The (Un)predictable Past of ESG Ratings Florian Berg (MIT), Kornelia Fabisik* (Frankfurt), and Zacharias Sautner (Frankfurt) 
  Discussant:  Youngjun Dragon Tang (University of Hong Kong)
• Read the Paper

• ESG Lending Sehoon Kim (Florida), Nitish Kumar* (Florida), Jongsub Lee (Seoul National), and Junho Oh (Hong Kong Polytechnic
  Discussant: Lubo Litov (Univeristy of Oklahoma)
  Read the Paper
  
• Climate Risk Disclosure and Institutional Investors Emirhan Ilhan* (Frankfurt), Philipp Krueger (Geneva), Zacharias Sautner (Frankfurt), and Laura T. Starks (Texas)
  Discussant:  Henri Servaes (London Business School)
  Read the Paper
  
• Greenhouse Gas Disclosure and Emissions Benchmarking Sorabh Tomar* (Southern Methodist)
  Discussant:  Matthew Gustafson (Penn State)
  Read the Paper

Afternoon Session:

Watch Video

• Proxy Advisory Firms and Corporate Shareholder Engagement Aiyesha Dey (Harvard), Austin Starkweather (South Carolina), and Joshua T. White* (Vanderbilt)
  Discussant:  Nadya Malenko (University of Michigan)
  Read the Paper
  
• Paid Leave Pays Off: The Effects of Paid Family Leave on Firm Performance Benjamin Bennett (Tulane), Isil Erel (Ohio State), Léa Stern* (U. Washington), Zexi Wang (Lancaster)
  Discussant:  Daniel Ferreira (London School of Economics)
  Read the Paper
  
• Trading Ahead of Barbarians’ Arrival at the Gate: Insider Trading on Non-Inside Information Georgy Chabakauri (LSE), Vyacheslav Fos* (Boston College), Wei Jiang (Columbia)
  Discussant:  Umit Gurun (University of Texas at Dallas)
  Read the Paper
  
• Bargaining with Private Equity: Implications for Hospital Prices and Patient Welfare Tong Liu* (Wharton) 
  Discussant:  Alon Brav (Duke)
  Read the Paper

* Presenting author

We are pleased to announce the winners of the 2021 John L. Weinberg/IRRCi Research Paper Award competition, which seeks to highlight innovative research and includes an award of US$10,000:

• Is History Repeating Itself? The (Un)predictable Past of ESG RatingsFlorian Berg (MIT), Kornelia Fabisik (Frankfurt), and Zacharias Sautner (Frankfurt)
• Bargaining with Private Equity: Implications for Hospital Prices and Patient Welfare Tong Liu (Wharton)

Reference Materials for Luncheon Presentation

1.  Blackrock Investment Stewardship 

2. “BlackRock to Permit Some Clients to Vote,” Harvard Law School Forum on Corporate Governance, October 25, 2021 

3. “BlackRock’s Move to Expand Proxy Voting Choice Creates Unknowns,” Harvard Law School Forum on Corporate Governance, November 20, 2021 

4.  ISS Voting Policies 2022 

5. “ISS Launches Special Interest Proxy Advisory Guidelines,” by Baker Hostetler.  JDsupra, April 6, 2020

Call for Papers

Submission Fee Form

UDaily – John L. Weinberg/IRRCi Research Paper Awards

ESG: Practical Advice for Boards Today

Past Events

Thursday, March 3, 2022, 2:00 PM to 5:00 PM

@Clayton Hall, University of Delaware : 

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This three-hour interactive program will address how boards can navigate the evolving and sometimes challenging ESG landscape.  Led by Sabastian V. Niles from Wachtell, Lipton, Rosen & Katz and John W. White from Cravath, Swaine & Moore, the program will include case studies to guide discussion of challenging issues that may be encountered, including investor and stakeholder pressure, fiduciary duties, SEC scrutiny, integrating ESG into strategy and operations, regulatory reporting requirements, evolving private ordering of ESG reporting, internal control procedures related to ESG metrics and targets, shareholder proposals, and, of course, importantly, board, board committee and management responsibilities with respect to ESG.

The program will include comments throughout by Leslie F. Seidman, independent director and chair of the audit committee at General Electric and Moody’s and former Chairman of the Financial Accounting Standards Board (FASB), as well as insights by Paul A. Beswick, Americas IFRS Leader at EY and former Chief Accountant at the Securities and Exchange Commission; Michael L. Arnold, Partner at Cravath, Swaine & Moore, LLP; Aaron Holmes, Deputy General Counsel and Senior Managing Director at Accenture; Carmen Lu, Counsel at Wachtell, Lipton, Rosen & Katz; among others.  

Bios

• John White
• Sabastian NIles
• Michael Arnold
• Paul Beswick
• Aaron Holmes
• Carmen Lu
• Leslie Seidman

Reference Materials

State of Play Today

• BlackRock, Larry Fink’s 2022 Letter to CEOs: The Power of Capitalism
• State Street, CEO’s Letter on Our 2022 Proxy Voting Agenda (January 12, 2022)
• Wachtell, Lipton, Rosen & Katz, ISS Proposes Benchmark Voting Policy Changes for the 2022 Proxy Season (November 8, 2021)
• Wachtell, Lipton, Rosen & Katz, Investor Priorities in 2022: Stakeholder Capitalism, Net Zero Transition, Human Capital Management and Long-Term Value Creation (January 21, 2022)
• Wachtell, Lipton, Rosen & Katz, ESG and M&A in 2022: From Risk Mitigation to Value Creation (January 14, 2022)
• International Financial Reporting Standards, IFRS Foundation Announces International Sustainability Standards Board, Consolidation with CDSB and VRF, and Publication of Prototype Disclosure Requirements (November 3, 2021)

SEC Role

• Securities and Exchange Commission, Commission Guidance Regarding Disclosure Related to Climate Change (February 2, 2010)
• Securities and Exchange Commission, Prepared Remarks Before the Principles for Responsible Investment “Climate and Global Financial Markets” Webinar (July 28, 2021)
• Securities and Exchange Commission, Sample Letter to Companies Regarding Climate Change Disclosures (September 2021)
• Wachtell, Lipton, Rosen & Katz, SEC Division of Enforcement Forms New Climate and ESG Task Force to Target ESG-Related Misconduct and Potential Violations (March 4, 2021)
• Cravath, Swaine & Moore LLP, New Insights into the SEC’s Climate Change Disclosure Rulemaking (August 6, 2021)
• Securities and Exchange Commission, Division of Corporation Finance, Shareholder Proposals: Staff Legal Bulletin No. 14L (November 3, 2021)
• Wachtell, Lipton, Rosen & Katz, SEC Staff Limits Exclusion of “Social Policy” Shareholder Proposals (November 4, 2021)

Getting the ESG Data Right

• Cravath, Swaine & Moore LLP, Responding to the ESG Paradigm Shift: Practical Steps for Boards and Management (March 2021)
• Accenture, Measuring Sustainability. Creating Value (January 20, 2022)

Board Involvement

• Wachtell, Lipton, Rosen & Katz, Using ESG Tools to Help Combat Racial Inequity: One Year Retrospective (July 15, 2021)
• Wachtell, Lipton, Rosen & Katz, Spotlight on Boards and Board Oversight of Business Strategy and Risk Management in a Post-Pandemic World (July 26, 2021)
• Wachtell, Lipton, Rosen & Katz, Carbon, Caremark, and Corporate Governance (May 27, 2021)
• Leo E. Strine, Jr., Kirby M. Smith and Reilly S. Steel, Caremark and ESG (August 3, 2020)
• Securities and Exchange Commission, Division of Corporation Finance, Office of Chief Counsel, Re: NIKE, Inc. Request to Omit Shareholder Proposal of As You Sow (May 14, 2021)

Additional Materials

• Wachtell, Lipton, Rosen & Katz, Corporate Governance Update: EESG Activism After ExxonMobil (July 22, 2021)

A Conversation with Veta Richardson “Take Six: Essential Habits To Own Your Destiny, Overcome Challenges, And Unlock Opportunities”

Past Events

Friday, December 10, 2021, 9:00 AM to 10:00 AM

@Webinar/Virtual : 

Co-Hosted by the Weinberg Center for Corporate Governance and the Women’s Leadership Initiative at University of Delaware 

WATCH VIDEO

REGISTER in advance for this webinar

​Veta Richardson achieved tremendous success as in-house counsel at Sunoco, Inc, as an advisor to three U.S. Presidential administrations, and now as the President and CEO of the Association of Corporate Counsel. In her debut book “Take Six: Essential Habits To Own Your Destiny, Overcome Challenges, And Unlock Opportunities,” she offers strategies for people at various stages of their careers to advance their professional goals. In this webinar, Veta Richardson and Professor Wendy Smith, Faculty Director of the Women’s Leadership Initiative at the University of Delaware will explore these strategies and how they can inform our own lives. While the book offers lessons that will resonate with everyone, women and diverse professionals will find it especially relevant.  

Bios

Veta Richardson:  Veta Richardson brings more than three decades of experience in the legal, business, and academic realms. She was in-house counsel to Sunoco, Inc. in Philadelphia for +10 years before moving into chief executive roles at two different nonprofit associations focused on serving the in-house counsel community. Veta has been an advisor to three U.S. Presidential administrations (Clinton, Bush, Obama) and countless Fortune 500 executives regarding diversity and inclusion issues. She is a thought leader on governance topics, especially concerning the role of the chief legal officer. Veta is also a fellow of the National Association of Corporate Directors, holds its certified director credential and was named four times to the prestigious Directorship 100 list. She serves on the Advisory Boards of both the John L Weinberg Center for Corporate Governance as well as Ethisphere, Inc, a for-profit company dedicated to advancing business integrity, compliance, and ethics as a strategic corporate advantage. As a new author, Veta’s goal is to unpack career advice that will help others to achieve their professional goals and stay true to themselves along the way.

Wendy Smith: Wendy Smith is the Emma Smith Morris Professor of Management at the Lerner School of Business and Economics and the Faculty Director of the Women’s Leadership Initiative at the University of Delaware. Her research explores how we solve our greatest dilemmas –tensions between managing for today and exploring for tomorrow, seeking new opportunities and honoring existing traditions, improving social conditions and addressing financial realities. While we tend to address these competing demands as either/or problems that require us to choose between them, Wendy’s research finds that we gain more creative and sustainable options from adopting both/and approaches that accommodate these paradoxical competing demands simultaneously. She describes these ideas in her TedxTalk “The Power of Paradox”. Wendy has been named as a Highly Cited Research – one of the top 0.1% of cited researchers in the field of business – in 2019, 2020 and 2021. Her upcoming book Both/And Thinking: Embracing Creative Tensions to Solve Your Toughest Problems, will be published by Harvard Business School Press (August, 2022).

Women’s Leadership Initiative at University of Delaware:  The Women’s Leadership Initiative at the University of Delaware (WLI) seeks a more just and sustainable world by advancing gender equity from the classroom to the boardroom. To do so, WLI provides education, training and research that enable students, faculty, alumni and executives to foster connections and build critical skills that can support women and advance equity and inclusion.  https://lerner.udel.edu/centers/womens-leadership-initiative/

John L. Weinberg Center for Corporate Governance:  The John L. Weinberg Center for Corporate Governance was established in 2000 at the University of Delaware and is part of the Lerner College of Business and Economics.  It is one of the longest-standing corporate governance centers in academia, and the first and only corporate governance center in the State of Delaware, the legal home for a majority of the nation’s public corporations.  The Center’s mission is to provide a forum for business leaders, members of corporate boards, stockholders, the judiciary, the legal community, academics, students, and others interested in corporate governance issues to interact, learn and teach, with the goal of positively impacting and improving the field of corporate governance and the capital markets.  The Center is recognized as a thought leader in the corporate governance field.  https://www.weinberg.udel.edu/