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Gavin Hinks revient de manière intéressante sur un rapport récemment publié par Sustainability Board Report mettant en lumière l’ouverture des grandes entreprises américaines à leurs parties prenantes : « Covid-19 pandemic ‘has accelerated shift to stakeholderism’ » (Board Agenda, 1er juin 2020).

Pour accéder au rapport commenté : ici.

Extrait :

There have been many claims that stakeholder capitalism is the future for business, particularly since the beginning of the Covid-19 crisis.

But one group says it now has evidence that stakeholder priorities are beginning to take root, driven by the pandemic. The Sustainability Board Report (SBR), a not-for-profit campaign group, has looked at disclosures from the world’s largest 100 companies to find examples of stakeholder-led decision-making. The report says it found good evidence that a shift towards “stakeholderism” is under way, with 37% of the firms examined revealing “specific corporate action” to respond to stakeholder interests since the advent of Covid-19.

Caution is needed here. The group has no pre-pandemic data for comparison. However, it remains confident that its findings reveal pro-stakeholder moves that were non-existent until recently.

(…) The SBR looked at policies disclosed affecting employees, customers, suppliers and community. The biggest pandemic response appears to have been directed at communities, with 71% of firms disclosing specific action. Johnson & Johnson, for instance, announced a $300m programme aimed at frontline workers.

Customers were the next largest group to receive support, from 37% of firms; employees from 28%; and suppliers seemingly receiving scant support from just one in ten (11%) of the companies checked.

(…) There has even been much speculation that Covid-19 would do much to give the movement energy, given that shutdowns and infection caused companies to reflect much more about their relationship with employees, customers and the wider public. In March, Harvard professor Bill George wrote in Fortune magazine: “If there is any consequence resulting from the Covid-19 pandemic, it’s the acceleration of the shift to stakeholder capitalism away from companies’ singular emphasis on shareholders.”

However, the SBR concedes that the data may support one claim that companies cynically use stakeholder capitalism as a PR tool to help cover business as usual. The fact that employees and communities are the greatest focus for “stakeholder” policies means companies could be using it to cover their concern with “perception and reputation”.

“One could conclude that some companies continue to pay lip service to stakeholderism while fundamentally maintaining a short-term profit orientation,” it says.

Evidence may be building but there is some way to go before it can be said that stakeholderism is a permanent fixture of business. Agitation by investment managers may help, but many managers will struggle to see how they will juggle conflicting interests.

That said, the confluence of drivers is perhaps greater now than at any time since the end of the Second World War. More recently, stakeholder capitalism was—and remains—part of the fight against climate change. Business will be called upon to remain at the forefront of that campaign until long after Covid-19 is under control. Stakeholder capitalism is likely to remain a focus of that effort.

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UCLA School of Law vient de publier un rapport d’une dizainede pages sur la gestion du capital humain et son intégration dans la gouvernance des entreprises : « Corporate Governance : The growing Importance of Human Capital Management » (avril 2020).

Extrait :

1. Over the last several years, investors and proxy advisory firms have increasingly focused their attention on environmental, sustainability and governance (ESG) and human capital management (HCM) issues. While there is no one definition of HCM, the term is widely used to cover a very broad range of workforce matters that are of concern to investors and the public as they focus on building long-term value and reducing business and reputational risks. These concerns have resulted in calls for enhanced company disclosures about their HCM practices and processes.

2. Under Delaware and federal law, directors have no duties that are specifically focused on HCM. However, under Delaware law and that of many other states, directors have duties of care, loyalty and oversight that can under certain circumstances apply to HCM matters and can result in director liability.

3. While federal securities laws and rules contain several corporate disclosure requirements that apply to employees and touch on HCM issues, current laws and rules are not as robust or focused as many investors would like and have proposed. In response to rulemaking and other investor requests, the U.S. Securities and Exchange Commission has proposed amendments to its disclosure rules that would expressly require companies to describe their human capital resources to the extent that they are material to an understanding of a company’s business as a whole.

4. Some public companies have already articulated board responsibilities for oversight of HCM matters; some have renamed and expanded the responsibilities of their compensation committees to reflect their expanded focus; and some have disclosed their HCM polices and efforts in their securities law filings and other publications.

5. Separate and apart from the legal requirements that apply to corporate board duties and corporate disclosure requirements, there are important business, governance and reputational reasons for boards and companies to care about and address HCM matters. 6. While there is no one-size-fits-all approach to board oversight of HCM matters, areas for possible board attention are (i) diversity and inclusion, (ii) employee satisfaction and engagement, (iii) succession and talent management, (iv) attrition and retention, and (v) ethics, workforce culture and risk.

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Une belle comparaison entre les droits étatsuniens et chinois à propos des droits d’inspection des actionnaires dans : R. Huang et R. Thomas, « The Law and Practice of Shareholder Inspection Rights: A Comparative Analysis of China and the U.S. », European Corporate Governance Institute – Law Working Paper No. 499/2020.

Extrait :

Shareholder inspection rights allow a shareholder to access relevant documents and records of their company, so as to address the problem of information asymmetry inherent in the corporate form, and facilitate monitoring of the operation of the company and, if necessary, the bringing of further action for remedies.

In the United States (U.S.), all states have now codified shareholder inspection rights, albeit with some significant differences amongst them. Drawing upon overseas experiences such as the U.S. law, China has introduced the regime of shareholder inspection rights, but with some important adaptions made to its local environment. By providing access to relevant information, inspection rights have the potential to serve as an effective mechanism to deal with different types of agency problems in the company: not only the manager–shareholder conflict that is the most serious agency problem in the U.S., but also the conflict between majority and minority shareholders which mainly plagues the corporate governance system in China.

However, due to institutional differences, variations may exist between the two jurisdictions as to how inspection rights are structured and enforced. In our recent article, we thus compare shareholder inspection rights in China and the U.S. (that is mostly represented by Delaware, the preeminent corporate law jurisdiction in the U.S.), both in terms of the law on the books and the law in practice.

(…) Overall, we find that shareholder inspection rights play an important role in both the Chinese and US legal systems. While Chinese corporate governance and American corporate governance face different sets of agency cost problems, improved shareholder monitoring creates important benefits in both of them. There exist, however, some important differences in the structure and enforcement of the inspection rights regime between the two jurisdictions, which can be largely explained by reference to their different contexts of political economy.

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Nouvelle intéressante en droit des sociétés par actions américain : la Cour suprême du Delaware a rendu une décision récemment (Marchand v. Barnhill) qui porte sur les devoirs des administrateurs en matière de surveillance institutionnelle et de mise en place d’un système de contrôle des risques (voir l’actualité sur Skadden).

Résumé :

On June 18, 2019, in Marchand v. Barnhill, 212 A.3d 805 (Del. 2019), the Delaware Supreme Court issued an important decision reaffirming the obligation that directors of Delaware corporations make good faith efforts to implement and monitor a risk oversight system. In Marchand, the Supreme Court reversed the Court of Chancery’s dismissal of a stockholder derivative suit seeking damages pursuant to alleged Caremark claims, which are difficult to plead and prove.¹ Specifically, the Supreme Court held that, at the pleading stage, the plaintiffs had alleged facts sufficient to satisfy the high Caremark standard for establishing that a board breached its duty of loyalty by failing to make a good faith effort to oversee a material risk area, thus demonstrating bad faith.

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Le Business Roundtable (association regroupant les plus grands chef d’entreprise américains) a pris une position audacieuse le 19 août 2019 : celle de redéfinir l’objectif des grandes entreprises (« Statement on the Purpose of a Corporation »).

While each of our individual companies serves its own corporate purpose, we share a fundamental commitment to all of our stakeholders. We commit to:

• Delivering value to our customers. We will further the tradition of American companies leading the way in meeting or exceeding customer expectations.

• Investing in our employees. This starts with compensating them fairly and providing important benefits. It also includes supporting them through training and education that help develop new skills for a rapidly changing world. We foster diversity and inclusion, dignity and respect.

• Dealing fairly and ethically with our suppliers. We are dedicated to serving as good partners to the other companies, large and small, that help us meet our missions.

• Supporting the communities in which we work. We respect the people in our communities and protect the environment by embracing sustainable practices across our businesses.

• Generating long-term value for shareholders, who provide the capital that allows companies to invest, grow and innovate. We are committed to transparency and effective engagement with shareholders.

Each of our stakeholders is essential.

Voir le communiqué de presse ici

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Intéressante information de The Advisor-s Edge concernant les agences de conseil en vote : « Updated: SEC addresses proxy voting concerns » (21 août 2019).

Extrait :

The U.S. Securities and Exchange Commission (SEC) set out its views on investment advisors fulfilling their proxy voting responsibilities. The guidance states that proxy voting advice constitutes a “solicitation” under federal rules and provides instructions on applying anti-fraud rules to proxy voting advice.

“Advisers who vote proxies must do so in a manner consistent with their fiduciary obligations and, to the extent they rely on voting advice from proxy advisory firms they must take reasonable steps to ensure the use of that advice is consistent with their fiduciary duties,” said SEC commissioner Elad Roisman, who led development of the new guidance.

“In addition, proxy advisory firms, to the extent they engage in solicitations, must comply with applicable law,” he noted.

Pour accéder au texte de la SEC : « Commission Guidance Regarding Proxy Voting Responsibilities of Investment Advisers » (17 CFR Parts 271 and 276)

Résumé :

The Securities and Exchange Commission (the “SEC” or the “Commission”) is publishing guidance regarding the proxy voting responsibilities of investment advisers under Rule 206(4)-6 under the Investment Advisers Act of 1940 (the “Advisers Act”), and Form N-1A, Form N-2, Form N-3, and Form N-CSR under the Investment Company Act of 1940 (the “Investment Company Act”).

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