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May 22, 2020

The week in GRC: Lockdowns may slow government probes of companies, and shareholders re-elect BlackRock board

This week’s governance, compliance and risk-management stories from around the web

– According to CNN, SoftBank announced that Alibaba founder Jack Ma had decided to resign from its board. Ma, who is still a director of the Chinese e-commerce company, had held the seat for nearly 13 years. He is the latest noteworthy board member to leave, after billionaire and Fast Retailing founder Tadashi Yanai’s departure at the end of last year.

Ma’s departure comes as SoftBank takes steps to improve its finances, including a plan to sell $41 billion in assets to buy back shares and reduce the company’s heavy debt load. SoftBank this week reported an annual operating loss of ¥1.36 trillion ($12.7 billion).

Reuters reported that as jury trials remain on hold throughout the US due to the Covid-19 pandemic, court officials in Texas were preparing to try out allowing jurors to hear a case through Zoom. Lawyers were due to present their case by videoconference, in what officials believed would be the first virtual jury trial to be held nationally amid the crisis.

The one-day trial was a so-called summary jury trial, in which jurors hear a condensed version of a case and deliver a non-binding verdict. The parties, having seen how their case could fare before a jury in a full-blown trial, were then due to sit for mediation and try to negotiate a settlement.

– The Financial Times said a ban on short-selling across markets in Europe ended after regulators declared the measures a success in curbing ‘irrational overreactions.’ Financial regulators in France, Italy, Spain, Austria, Greece and Belgium said they would let the restrictions expire at just before midnight on Monday. An Italian ban of three months had been set to run until mid-June. The curbs had applied to investors creating net short positions – which could include a mixture of shares, bonds and derivatives – or those increasing their existing net short positions.

The restrictions were introduced in the middle of March during market chaos sparked by the coronavirus outbreak. The one-month bans were then rolled over in April. Helmut Ettl, executive director of Austrian regulator FMA, described the lifting of the ban as ‘a step toward returning to normality and… a positive signal for retail investors and professional investors.’

– According to The Guardian, wildcat strikes, walkouts and protests over working conditions have emerged across the US during the Covid-19 pandemic as ‘essential’ workers have called for better pay and safer working conditions. Labor leaders hope such protests can lead to permanent change. Workers across industries such as food service, meat processing, retail, manufacturing, transportation and healthcare have come together to protest about issues, many of which were apparent before the coronavirus.

‘There are no federal mandates or requirements to implement the social distancing guidance or anything else. It’s only guidance and employers can choose to implement it or not,’ said Deborah Berkowitz, director of worker safety and health for the National Employment Law Project. ‘And that is why, in an unprecedented way, [workers] are walking out to bring public attention to the fact that their company is not protecting their safety and health.’

– Hackers have stolen the data of millions of easyJet customers, including thousands of credit card numbers,  CNN reported. A ‘sophisticated source’ accessed the email address and travel details of roughly 9 million customers, and the credit card details of 2,208 of them, the company said. EasyJet did not say when the attack took place but said it was contacting all customers affected to offer support and was working with the UK’s Information Commissioner (ICO) and National Cyber Security Centre.

Johan Lundgren, CEO of easyJet, apologized to customers and cited the coronavirus pandemic as a possible incentive for hackers. ‘Since we became aware of the incident, it has become clear that owing to Covid-19 there is heightened concern about personal data being used for online scams,’ he said. ‘As a result, and on the recommendation of the ICO, we are contacting those customers whose travel information was accessed and we are advising them to be extra vigilant, particularly if they receive unsolicited communications.’

The Wall Street Journal reported that Hertz Global Holdings named Paul Stone as its president and CEO, effective Monday. Stone, who was the company’s executive vice president and chief retail operations officer for North America, succeeds Kathryn Marinello, who resigned from her positions. Marinello will remain in a consulting position with the company for up to a year to support the transition, the company said.

Marinello recently said the coronavirus pandemic created ‘a major business disruption as global travel demand dropped to almost zero and the US used-car market effectively shut down.’ The WSJ reported earlier this month that the company hired FTI Consulting as a restructuring adviser for a planned bankruptcy, in addition to other legal and financial help.

CNBC reported that five McDonald’s workers in Chicago and four of their family members filed a lawsuit against the company, alleging that it responded inadequately to the Covid-19 pandemic. The lawsuit, which is seeking class-action status, was filed as McDonald’s prepares to reopen dining rooms across the country, sending US franchisees a 59-page guide for changes to make at their restaurants.

The plaintiffs allege that McDonald’s is not giving workers enough masks, gloves and hand sanitizer to protect themselves. According to the lawsuit, employees at one location received masks and gloves only after striking, but they were given just one mask that has to be worn each shift.

Asked to comment on the lawsuit, McDonald’s USA issued a statement referring to a press release sent out by the Service Employees International Union (SEIU). The company said it disagreed with characterizations the labor group made. The SEIU supports the Fight for $15 and a Union, a fast-food workers’ rights coalition.

‘Crew and managers are the heart and soul of the restaurants in which they work, and their safety and well-being is a top priority that guides our decision-making,’ said McDonald’s USA in a statement. It said personal protective equipment is in ‘ample supply’ for all restaurants, and more than 130 million masks have been distributed to employees.

Reuters reported that JPMorgan Chase & Co shareholders voted to re-elect all of the bank’s board members, including a former ExxonMobil CEO who attracted criticism from environmental groups and New York City’s comptroller and pension system leader. Each director received the support of at least 84 percent of investors’ votes at the bank’s AGM. In April JPMorgan said it will name a new independent director to replace former Exxon CEO Lee Raymond ‘by end of summer 2020.’

The vote showed investors were willing to go along with JPMorgan CEO Jamie Dimon’s assertions that the bank can support green initiatives while continuing to finance deals with some fossil fuel companies.

None of the shareholder proposals won a majority of shares voted, but one got close with 49.6 percent support. The proposal would have urged the bank to report on whether and how it will align its lending business with the Paris Agreement’s goal of limiting global temperature rise to below 2ºC.

– BlackRock said all 16 of its director nominees received strong investor support at its AGM, at which CEO Laurence Fink defended the size of the firm’s large board, Reuters reported. The asset manager said each nominee received roughly 94 percent support from shareholders, with the same level of support going to the company’s executive pay at the meeting, which was held via teleconference. BlackRock’s board is bigger than those of other financial firms such as State Street and JPMorgan Chase, each of which has 11 members.

Questioned about its size during the AGM, Fink acknowledged his board may be ‘a little bigger than other boards’ but said it provides a range of perspectives on areas including technology and sustainability. ‘I really believe the size of our board is what we make of it,’ he said. Pressed on climate issues, Fink and others defended the firm’s approach to proxy voting, on which it has vowed to take a harder line, and cited BlackRock’s support for corporate climate-impact reporting.

– According to the WSJ, the Covid-19 pandemic may slow investigations into corporate wrongdoing by prosecutors, regulators and federal agents as lockdown orders and other restrictions force delays. Some investigative activities, such as ones requiring travel or face-to-face meetings, are taking more time and that could raise concerns for time-sensitive cases, said Daniel Kahn, a senior deputy chief in the US Department of Justice’s criminal fraud section.

‘The most difficult part of this is doing in-person interviews,’ Kahn said, adding that getting documents from abroad is proving more difficult than usual: ‘For the most part we are finding ways to do that. It just sometimes can be a little bit slower.’ Kahn said, however, that much of the government’s investigative work, including issuing subpoenas, executing email search warrants, reviewing documents and meeting with defense counsel can be done remotely and is continuing as normal.

The SEC is also conducting some witness interviews remotely using secure platforms, said Charles Cain, chief of the agency’s FCPA unit.

– The SEC voted to adopt amendments to the financial disclosure requirements in Regulation S-X for acquisitions and dispositions of businesses. The amendments are intended to help registrants make more meaningful determinations of whether a subsidiary or an acquired or disposed business is significant, and improve the financial disclosure requirements applicable to acquisitions and dispositions of businesses including real estate operations and investment companies.

Reuters reported that four Democratic lawmakers, led by Senator Amy Klobuchar, D-Minnesota, wrote to antitrust enforcers arguing that plans by Uber Technologies, owner of Uber Eats, to buy rival online food delivery company Grubhub would ‘raise serious competition issues’ in many cities. In their letter, the lawmakers said the deal would give Uber and Grubhub 48 percent of the US market, while DoorDash would have 42 percent. A merged Uber Eats and Grubhub would have 79 percent of the market in New York, 68 percent in Boston, 65 percent in Miami, 60 percent in Chicago and 51 percent in Atlanta, they said.

Uber did not immediately respond to a request for comment on the letter.

– Danone said it will place greater focus on its ESG goals by adopting the French entreprise à mission legal framework and setting up an independent committee to oversee and report on its progress, the WSJ reported. The move is part of the company’s aim to get B Corp certification by 2025. The certification is issued by non-profit B Lab to companies that meet certain social and environmental criteria and that make themselves legally accountable to balance the interests of their stakeholders with the interests of their shareholders.

Danone will define a social and environmental purpose beyond profit and bind itself to pursue specific sustainability goals. It is the first listed company to adopt the framework, according to the company.

– The WSJ reported that Simon Dingemans, chair of the UK’s Financial Reporting Council (FRC) is planning to step down due to a potential conflict of interest. Dingemans, the former CFO of GlaxoSmithKline, took on the part-time role at the FRC in October.

When he accepted the job, he was told he could take on roles with other organizations provided they did not conflict with his responsibilities at the FRC, the regulator said in a statement. ‘This has not proved possible,’ the FRC said without providing details. It added that Dingemans is expected to return to the private sector full time. He could not be reached for comment.

Ben Maiden

Ben Maiden is the editor-at-large of Governance Intelligence, an IR Media publication, having joined the company in December 2016. He is based in New York. Ben was previously managing editor of Compliance Reporter, covering regulatory and compliance...