Top 10 Topics for Directors in 2019: Corporate Strategy

Jan 31, 2019

Reading Time : 2 min

According to Ernst & Young’s Global Capital Confidence Barometer, covering the second half of 2018, business executives continue to have high confidence in the U.S. and global economies over the next 12 months. This is in contrast to economists’ predictions that a U.S. recession may occur in the next two years. Outside of the United States, major economies began to slow in 2018, including those of Japan and the United Kingdom. Heading into 2019, volatile stock markets, geopolitical and regulatory uncertainties and interest rate increases may impact strategic plans. The Federal Reserve has provided “mixed signals” as to whether it plans to increase interest rates further. It was initially expected that the Federal Reserve would increase interest rates up to three times in 2019; however, Federal Reserve Chairman Jerome Powell indicated at the end of November 2018 that interest rates are “just below” estimates that are considered neutral, which may imply that the Federal Reserve may not raise interest rates as aggressively as anticipated by the markets. Companies are beginning to experience the effects of previous interest rate rises, including higher leverage multiples and interest rates on new debt. As a result, companies may postpone or reduce acquisition activity, consider alternative sources of capital (in lieu of incurring new debt) or apply conservative foreign exchange rates to financial forecasts.

In addition, company performance and mergers and acquisitions activity is expected to be challenged by geopolitical and regulatory uncertainty. For example, although President Trump reached an agreement with the governments of Canada and Mexico to replace the North American Free Trade Agreement (NAFTA) with the U.S.-Mexico-Canada Agreement (USMCA) in the fall of 2018, Congress is not expected to consider the USMCA until 2019. In Europe, the United Kingdom is expected to leave the European Union on March 29, 2019; however, the formal, withdrawal agreement is not expected to be in place until December 2020. Real estate and financial services are among the industries more sensitive to post-Brexit uncertainty. On November 29, 2018, Brookfield Property Group pulled a multibillion-dollar bid to take Intu, a British retailer, private as a result of economic uncertainty and potential volatility across global markets.

One of the more unpredictable variables is the outcome of the continued trade negotiations between the U.S. and Chinese governments. U.S. levies of 10 percent on $200 billion in Chinese goods took effect on September 24, 2018. During the G-20 Summit in Buenos Aires in December 2018, the United States agreed to postpone a scheduled increase in tariffs to 25 percent on an expanded list of goods worth more than $250 billion until approximately March 2019 in exchange for China lifting restrictions on the purchase of U.S. farm, energy products and cars, to allow both sides to continue discussions. This is consistent with similar agreements the United States has recently reached with the European Union and Japan; however, it remains unclear whether the temporary stay on increased tariffs will lead to a long-term agreement. As a result of the current Chinese import duties, United States businesses have already begun to reduce orders, negotiate price decreases and request accelerated production runs.

Despite continued confidence in the mergers and acquisitions market over the next 12 months, corporate appetite to actively pursue acquisitions is the lowest in four years, primarily due to geopolitical and regulatory uncertainty over the next 12 months. For companies inclined to “pause” acquisition activity, boards may consider maximizing synergies from recent acquisitions or review their companies’ existing portfolios for potential divestitures, which can also be an alternative source of capital.

View the full report here.

Share This Insight

Previous Entries

Deal Diary

June 27, 2024

On June 24, 2024, the U.S. Securities and Exchange Commission (SEC) published five new Form 8-K Compliance and Disclosure Interpretations (C&DIs) expanding the agency’s interpretations of cybersecurity incident disclosures pursuant to Item 1.05 of Form 8-K. In July 2023, the SEC adopted final rules with respect to cybersecurity incidents that generally require public companies to disclose (i) material cybersecurity incidents within four business days after determining the incident was material and (ii) material information regarding their cybersecurity risk management, strategy and governance on an annual basis. We wrote about the final cybersecurity disclosure rules here.

...

Read More

Deal Diary

February 12, 2024

The Securities and Exchange Commission (SEC) recently adopted final rules (available here; also see the fact sheet and press release) representing significant changes to  special purpose acquisition companies (SPACs), shell companies and the disclosure of projections. These rules aim to enhance disclosures, protect investors and align the regulatory framework for SPACs with traditional IPOs. The following summarizes the key aspects of these rules.

...

Read More

Deal Diary

October 4, 2023

On September 20, 2023, the U.S. Securities and Exchange Commission (SEC) issued a final rule amending the so-called “Names Rule” (found here) that is “designed to modernize and enhance” protections under Rule 35d-1 of the Investment Company Act of 1940. The final rule is part of the SEC’s holistic efforts to regulate environmental, social and governance (ESG) matters, and is the SEC’s latest attempt to curb greenwashing in U.S. capital markets. The amendments require registered investment funds that include ESG factors in their names to place 80% of their assets in investments corresponding to those factors, thereby extending to ESG funds the SEC’s long-standing approach of regulating the names of registered funds to ensure they are marketed to investors truthfully. Fund complexes with more than $1 billion in assets will have two years from the final rule’s effective date (60 days after publication in the Federal Register) to comply, while fund complexes with less than $1 billion in assets will be given a compliance period of 30 months.

Chair Gary Gensler said “[t]he Names Rule reflects a basic idea: A fund’s investment portfolio should match a fund’s advertised investment focus. In essence, if a fund’s name suggests an investment focus, the fund in turn needs to invest shareholders’ dollars in a manner consistent with that investment focus. Otherwise, a fund’s portfolio might be inconsistent with what fund investors desired when selecting a fund based upon its name.” The sole dissenting vote against the rule modification, Commissioner Mark Uyeda, said “[w]ith these amendments, the Commission overemphasizes the importance of a fund’s name, as if to suggest that investors and their financial professionals need not look at the prospectus disclosures.” Commissioner Uyeda also expressed concern that fund investors will bear the increased compliance costs associated with the rule change.

...

Read More

Deal Diary

May 31, 2023

As discussed in our prior publication (found here), the Securities and Exchange Commission (SEC) adopted amendments on December 14, 2022, regarding Rule 10b5-1 insider trading plans and related disclosures. On May 25, 2023, the SEC issued three new compliance and disclosure interpretations (C&DIs) relating to the Rule 10b5-1 amendments.

...

Read More

Deal Diary

May 24, 2023

On May 15, 2023, the Eastern District of California ruled that California Assembly Bill No. 979 (“AB 979”) violates the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment and 42 U.S.C. § 1981. As enacted, California’s Board Diversity Statute, required public companies with headquarters in the state to include a minimum number of directors from “underrepresented communities” or be subject to fines for violating the statute. AB 979 defines a “director from an underrepresented community” as “an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender.”

...

Read More

Deal Diary

May 9, 2023

Update: On October 31, 2023, the Fifth Circuit granted the US Chamber of Commerce's petition for review of the SEC's share repurchase disclosure rules, holding that the SEC acted arbitrarily and capriciously in violation of the Administrative Procedure Act. The court directed the SEC to correct the defects within 30 days of the opinion. On December 1, 2023, the SEC informed the Fifth Circuit that it was unable to correct the rule's defects within 30 days of the opinion. On December 19, 2023, the Fifth Circuit vacated the SEC’s share repurchase disclosure rules.

...

Read More

Deal Diary

April 12, 2023

We have released our 2023 ESG Survey which includes a collection of reports reflecting on significant ESG themes and trends from 2022, as well as what we believe to be key developments for 2023.

...

Read More

Deal Diary

February 6, 2023

As companies begin preparing for the 2023 proxy season, we note that Institutional Shareholder Services Inc. (ISS) and Glass Lewis, the leading providers of corporate governance solutions and proxy advisory services, issued updated benchmark policies (proxy voting guidelines), which can be found here and here, respectively. The updated proxy voting guidelines generally focus on board accountability and oversight considerations and address topics such as climate accountability, board diversity, shareholder rights, corporate governance standards, executive compensation and social issues. What follows is a summary of the proxy voting guidelines published by ISS and Glass Lewis for the 2023 proxy season.

...

Read More

© 2024 Akin Gump Strauss Hauer & Feld LLP. All rights reserved. Attorney advertising. This document is distributed for informational use only; it does not constitute legal advice and should not be used as such. Prior results do not guarantee a similar outcome. Akin is the practicing name of Akin Gump LLP, a New York limited liability partnership authorized and regulated by the Solicitors Regulation Authority under number 267321. A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, please see our Legal Notices page.