Enterprise

February 14, 2025

As SEC sees it, we live in a Manichean world where allies are pliant, and anyone who is anything else, is an activist. No more engagement to offer a gentle nudge. "Investors that threaten to vote against directors' reelection if the company is not aligned with their stewardship policies or views on environmental, social or governance issues will not be considered passive and must instead file a Schedule 13D as activists, according to a new compliance and disclosure interpretation released by the SEC's Division of Corporation Finance this week.

As SEC sees it, we live in a Manichean world where allies are pliant, and anyone who is anything else, is an activist. No more engagement to offer a gentle nudge. “Investors that threaten to vote against directors’ reelection if the company is not aligned with their stewardship policies or views on environmental, social or governance issues will not be considered passive and must instead file a Schedule 13D as activists, according to a new compliance and disclosure interpretation released by the SEC’s Division of Corporation Finance this week.

February 4, 2025

Target failed to warn investors of risks associated with its mandates regarding its ESG/DEI initiatives.

Great companies with the most sophisticated boards will sometimes disappoint stakeholders. In our increasingly chaotic economic and political business environment, some customers, employees, regulators or investors will feel betrayed and act. This class action was filed against Target and thirteen of its Directors. In May 2023, Target faced immense customer backlash to its ambitious LGBT- “Pride Month” marketing and sales campaign, one of its featured ESG/DEI initiatives. […] The Complaint alleges that during the Class Period, Target failed to warn investors of risks associated with its mandates regarding its ESG/DEI initiatives and that this deceit, through misleading statements in the Company’s public filings, caused Target’s investors to purchase Target stock at artificially inflated prices and to unknowingly support Target’s Board and management in their misuse of investor funds to serve political and social goals.

December 4, 2024

Governance experts including the National Association of Corporate Directors and other authorities are encouraging boards to support management more closely in an "uncertain — and possibly volatile — environment," even at the risk of appearing to micromanage. But with engagement comes culpability for the reactions of already-angry stakeholders. Simply put, the costs of leaning into a reputation crisis may include the dispensation of board members whose personal losses will not be covered by D&O liability insurance. Board members need personal reputation insurance.

Governance experts including the National Association of Corporate Directors and other authorities are encouraging boards to support management more closely in an “uncertain — and possibly volatile — environment,” even at the risk of appearing to micromanage. But with engagement comes culpability for the reactions of already-angry stakeholders. Simply put, the costs of leaning into a reputation crisis may include the dispensation of board members whose personal losses will not be covered by D&O liability insurance. Board members need personal reputation insurance.

October 28, 2024

An industry that is using parametric technology to insure losses from natural disasters caused by wrathful deities can now also provide meaningful insurance for losses from reputation disasters caused by emotional mortals. The 4-M parametric framework of metric, model, monitor and market for natural earthquakes disclosed at the 2023 Hawaii Captives Insurance Conference makes parametric insurance for metaphorical earthquakes easy to back, underwrite, broker and bind.

An industry that is using parametric technology to insure losses from natural disasters caused by wrathful deities can now also provide meaningful insurance for losses from reputation disasters caused by emotional mortals. The 4-M parametric framework of metric, model, monitor and market for natural earthquakes disclosed at the 2023 Hawaii Captives Insurance Conference makes parametric insurance for metaphorical earthquakes easy to back, underwrite, broker and bind.

October 11, 2024

DOJ Hold Boards Accountable Risk Management. New enforcement plans outline expectations for data oversight, compliance expand the potential for reputation risk.

DOJ has updated its expectations expanding the potential for reputation risk. Under the new guidelines, prosecutors will consider whether companies have a process for identifying and managing emerging internal and external risks related to the use of new technologies, such as AI, and whether they are integrated into broader enterprise risk management practices.