S&C Critical Insights

U.S. Tax Outlook Post-Midterms

In this episode of S&C’s Critical Insights, Tax Group co-heads Isaac Wheeler and Davis Wang welcome the Firm’s Government Affairs Specialist, Tom Mullins, to discuss anticipated developments in U.S. tax policy following the midterm elections.

 

With Democrats and Republicans narrowly controlling the Senate and House, respectively, it is unlikely that the United States will see significant standalone tax policy passed in the next two years. However, progress is possible on a few fronts, including the Extenders Bill, which would extend expiring deadlines for a range of tax legislation, and the Secure 2.0 Act, which will give part-time workers better access to retirement benefits and increase the age when required minimum distributions must start. Some tax legislation could also become law by being included in a must-pass bill, such as the National Defense Authorization Act.

 

Most likely, changes to tax policy will occur at the Treasury- or IRS-level rather than through Congressional action, although political dynamics and other factors could slow policymaking in those arenas as well.

 

They also discuss how the new balance of power in Congress could make it more difficult for the United States to align with global tax initiatives, such as the Organisation for Economic Co-operation and Development’s Pillar II proposals for a global minimum corporate tax.

Impact of Macro-Economic Environment on Cross-Border M&A

In this episode of S&C’s Critical Insights, Melissa Sawyer, the Global Head of S&C’s M&A practice, is joined by Carsten Berrar, the Managing Partner of the Firm’s Frankfurt office, and Olivier de Vilmorin, the Head of the Firm’s European M&A practice, to discuss cross-border M&A transactions in the current economic environment.

 

Carsten and Olivier discuss some of the macro-economic trends impacting the European market, including the energy supply crisis, inflation, recession as well as transformational issues, such as the mobility car industry. Additionally, heightened Antitrust scrutiny and an increased relevance of Foreign Direct Investment (FDI) Screening add to deal complexity and have reduced the pace of M&A transactions significantly. Despite these factors, a significant number of deals have been struck in the energy, infrastructure and cybersecurity sectors in Europe.  Cautiously optimistic, Carsten and Olivier expect a significant number of P2P, carve-out and distressed M&A transactions in the coming months. Moreover, China’s softening of pandemic restrictions and the slowdown of inflation in the United States have had a positive impact on the European markets and could provide a boost for M&A deals.

 

Melissa provides a U.S. perspective of the market for cross-border transactions into Europe. She points out that this is a great time for U.S. acquirers to be thinking about making investments in Europe as the market is less competitive than in recent years.

Developing a Robust Multi-National Compliance Program

In this episode of S&C’s Critical Insights, Litigation partners Brendan Cullen and Tony Lewis provide an update and some key takeaways for building and sustaining an effective compliance program in light of recent remarks from Department of Justice officials, including September comments by Deputy Attorney General Lisa Monaco.

 

Brendan and Tony build on their previous podcasts from 2020 and 2021 and discuss the agency’s enforcement priorities and its newest compliance expectations. These developments come at a time when U.S. enforcement agencies appear to be increasingly focused on corporate compliance. 

 

Topics include the DOJ’s focus on data analytics in testing the effectiveness of a company’s compliance function and culture, using compensation systems to provide incentives or disciplinary measures to improve compliance, and on companies’ use of electronic messages on personal devices.

 

For more information about compliance programs, read Brendan and Tony’s chapter in the Latin Lawyer Guide to Corporate Compliance, “Developing a Robust Compliance Programme in Latin America.”

An Overview of Section 8 of the Clayton Act

In this episode of S&C’s Critical Insights, S&C Partners Rita-Anne O’Neill and Joe Matelis provide an overview of Section 8 of the Clayton Act and discuss how the Department of Justice’s recent enforcement actions may affect private equity firms.

Lessons from the 2022 Proxy Season—Episode 4: Special Meeting Thresholds and Other Governance Proposals

S&C Corporate Governance co-heads Marc Treviño and Melissa Sawyer conclude their discussion of shareholder proposal trends from the 2022 proxy season by discussing governance proposals.

 

They note that nearly all of the increase in shareholder proposals over the past decade is due to environmental, social and political proposals, as opposed to governance proposals. Still, governance proposals raise important issues and their proponents have become sophisticated about how they submit these proposals. 

 

Proposals seeking to lower the threshold of ownership needed for shareholders to call a special meeting was the largest category of structural governance proposals this year. Marc and Melissa note that the companies that defeated these proposals mostly demonstrated that the requested threshold would essentially give too much power to a single shareholder or to a couple of large holders.

 

Click here to learn more about S&C’s 2022 Proxy Season Review and watch our recent webinar.

Lessons from the 2022 Proxy Season—Episode 3: Social and Political Proposals

S&C Corporate Governance co-heads Marc Treviño and Melissa Sawyer continue their discussion of shareholder proposal trends from the 2022 proxy season. In this episode of S&C’s Critical Insights, they explore social and political proposals, including in increase in those from so-called “anti-ESG” proponents.

 

This year saw big growth in social and political proposals, with an 81 percent increase in civil rights, human rights and racial equity impact-related proposals. Marc and Melissa explore the different categories of social and political proposals, including those calling for racial equity audits and civil rights audits and challenges to corporate political spending. In prior years, this category was largely taken up by DEI-related proposals. This year, proposals increasingly focused on workplace characteristics, harassment, inadequate paid sick leave, employee health and safety issues.

 

Click here to learn more about S&C’s 2022 Proxy Season Review and watch our recent webinar.

Preparing Companies for Universal Proxies

In this episode of S&C’s Critical Insights, Sarah Payne, John Savva and Melissa Sawyer are joined by Kelly Sullivan, partner at communications firm Joele Frank, and Scott Winter, managing director at proxy solicitation firm Innisfree, to discuss the new universal proxies required by the Securities and Exchange Commission. They discuss how companies can prepare for these proxies, which must include all director nominees properly presented for election, and what to expect for the upcoming season.

The group discussed how the new ballots will likely lead to more activism, especially from smaller investors, and how companies can respond. On a positive note, the new proxy process has spurred many companies to refresh their bylaws to better address this new process.

Lessons from the 2022 Proxy Season—Episode 2: Environmental Proposals

Corporate Governance co-heads Marc Treviño and Melissa Sawyer and associate June Hu continue their discussion of shareholder proposal trends from the 2022 proxy season, discussing trends in environmental proposals, as well as how to prepare for 2023.

Environmental proposals have steadily increased over the past decade, with an explosion in 2021 and 2022. In 2021, these proposals rose 40 percent year-over-year and this year they jumped a further 38 percent.

With proponents more reluctant to settle and the Securities and Exchange Commission less likely to grant no-action relief, 78 percent more environmental proposals reached a shareholder vote compared to 2021. One of the most notable trends was the increased granularity of these proposals. Correlated with this increasing granularity, however, the 2022 environmental proposals received lower levels of shareholder support. 

Looking forward, they expect that companies will have an even harder time negotiating a compromise or excluding environmental shareholder proposals, which may become even more granular in their demands.

Learn more from S&C’s 2022 Proxy Season Review and watch our recent webinar.

Lessons from the 2022 Proxy Season—Episode 1: The Impact of the SEC

Corporate Governance co-heads Marc Treviño and Melissa Sawyer and associate June Hu open a four-part series discussing prevalent shareholder proposal trends from the 2022 proxy season. They outline the significant impact of recent actions by the Securities and Exchange Commission on this proxy season and discuss how SEC rulemaking could affect the 2023 season.

 

SEC Staff Legal Bulletin No. 14L—which reversed prior SEC guidance and altered the staff’s approach to the ordinary business and economic relevance exclusions—had a significant impact on the submission and voting trends this year. The SEC’s new approach correlated with a significant decrease in the likelihood of companies obtaining no-action relief, as the staff now assesses whether a proposal raises issues with a broad societal impact in determining whether a proposal is excludable.

 

As a result, shareholder proposals made it to a vote much more frequently this proxy season. Yet the number of passing proposals decreased, as shareholder support for social, environmental and political proposals decreased after steadily rising throughout the last decade.

 

Looking ahead, they expect ESG proponents to continue to submit more proscriptive and granular proposals to attract shareholder support. They also expect increased focus by the SEC on director qualifications, cyber security and human capital management disclosure.

 

Click here to learn more about S&C’s 2022 Proxy Season Review and watch our recent webinar.

Three Corporate Tax Changes Under the Inflation Reduction Act

: In this episode of S&C’s Critical Insights, Davis Wang and Isaac Wheeler, co-heads of S&C’s Tax Group, are joined by Lauren Boehmke, partner in the Firm’s M&A practice, to discuss the recently enacted Inflation Reduction Act and a few of its key impacts on companies and corporate transactions.

 

They analyze three key changes introduced by the Act: the corporate minimum tax, the one percent buyback tax and clean energy initiatives.