Institutional shareholders are increasingly using their “voice” in matters of corporate policy, and, in particular, are taking an interest in “environmental, social, governance” (ESG) performance measures at their portfolio companies.  Investments are selected, and shareholders engage with management, using a variety of ESG metrics, often concerning matters like climate change, gender and racial diversity, and similar issues.  Though it’s often argued that some ESG engagement reflects the investors’ personal policy preferences rather than a sincere attempt to improve corporate performance, it seems that at least some ESG factors are, in fact, wealth maximizing.  It’s also been argued that many institutional investors have already diversified away their vulnerability to idiosyncratic risks and, by engaging on ESG matters, are attempting to protect themselves against systemic risks.

Nonetheless, the trend has met with some criticism.  One set of concerns pertains to protection of retail investors to whom the institutional investors owe fiduciary duties – fear that their money is being used to advance social causes favored by the investment manager, rather than to benefit investors in the fund.

A parallel set of concerns has less to do with protecting fund beneficiaries than with protecting portfolio companies.  In the most charitable account,

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For many, Memorial Day is just another Monday holiday–a time to relax a bit more in a busy work season.  For some, the celebration of Memorial Day means sales and barbecues and community parades, fairs, and similar events.  (I linked to events in my home town, Garden City, NY, and the greater Long Island area.)  Many view Memorial Day as a time to commemorate all veterans, something we also do on Veterans Day in the fall.  (The linked article celebrates the work of some entrepreneurial veterans in the Knoxville community.)  

Many of these ways of celebrating Memorial Day involve reflection of some kind.  At its core, Memorial Day seems to encourage a particular kind of reflection–a moment to recall and honor those who have died for our country in the course of military service.  That general encouragement is consistent with, but not completely reflective of, the text of the federal law establishing the holiday, which expressly calls for the President to call us to united prayer* for permanent peace:

The President is requested to issue each year a proclamation—

(1) calling on the people of the United States to observe Memorial Day by praying

Risk factor disclosures are required under SEC rules, and encouraged under the PSLRA (which insulates from private liability forward-looking statements that are “accompanied by meaningful cautionary statements identifying important factors that could cause actual results to differ materially from those in the forward-looking statement,” 15 U.S.C. § 78u-5).  The theory is that investors, armed with adequate warnings, can make intelligent decisions about how to value a company’s securities.

Both the SEC in its guidance, and Congress when passing the PSLRA, emphasized that “boilerplate” warnings are not helpful; investors must be given specific, tailored information about the firm-specific risks that the company faces.  For example, the SEC instructs firms, “Do not present risks that could apply to any issuer or any offering. Explain how the risk affects the issuer or the securities being offered.”  17 C.F.R. § 229.303.  Meanwhile, in the PSLRA’s legislative history, the Conference Report states that “boilerplate warnings will not suffice…. The cautionary statements must convey substantive information about factors that realistically could cause results to differ materially from those projected.”

Scholars have documented that firm-specific risk warnings are helpful to investors.  For example, a while ago I blogged about a study by Karen K. Nelson and Adam

 

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Hello from Russia, a country I swore a few years ago I would not visit for pleasure because of its human rights violations. Not only did I visit St. Petersburg, Russia on a cruise stop, but I bought FIFA World Cup T-shirts. I stopped short of buying the Trump/Putin nesting dolls, but I couldn’t resist a picture. I attended the last World Cup in Brazil, and in between matches met with activists because I was looking at the effect of mega sporting events on human rights. Hundreds of thousands of people were displaced in Brazil to build new facilities and activists protested both the government and corporate sponsors.  Russia and Qatar (a future World Cup destination and another notorious human rights violator) were on my personal no-go lists. Alas, as regular readers of this blog know, I’m a perfect example of most consumers out there- I have some situational ethics when it comes to certain things. At least I’m self aware. 

 

There are only about 5 cruise ships in port today and the city was packed. On other days during the summer, thirteen cruise ships with 2000-4000 passengers each may be in the city. Thousands of other tourists

Although lawyers (and other professionals) are not baseball players, some clients may benefit by looking at outcome statistics when making decisions about who to hire for a particular job.  Still, it’s tough to figure out the right statistics to use.  What counts as a “win” may not always be clear.  A defense lawyer that “loses” on liability but “wins” with a small damages award probably has a happy client.  In a couple of op-eds, I’ve suggested that immigration court outcomes might be a useful place to start.  A recent news story has me thinking about the issue again.

Publishing outcome statistics by attorney might help asylum seekers that now bet their lives on particular attorneys.  The real question is whether they should know how different counsel might affect the odds. We’ve already got stats for the judges.  And outcomes vary dramatically by presiding judge.  For example, immigrants pressing asylum claims in recent years before Los Angeles’s Immigration Court Judge Lorraine J. Munoz had 97.1% of their claims denied.  In contrast, asylum seekers fare better before Los Angeles Immigration Court Judge Stephen L. Sholomson, winning 78.2% of their asylum claims.  

But we don’t have ready access to the stats

If you’re anything like me, you’ve spent the last few days procrastinating studying the drama unfolding at CBS.  (If you’re not aware, here’s an article summarizing the state of play; the rest of this post assumes readers are familiar with the basic facts).

There’s a lot to chew on here, and I’m sure that as the case develops, there will be much more to say, but here are some off-the-cuff initial thoughts, in no particular order.

[More under the jump]