Top 10 Topics for Directors in 2020: Corporate Innovation

Mar 11, 2020

Reading Time : 5 min

Use Board’s Oversight

A board’s role includes oversight with respect to technology spending and strategy. To do so effectively, some technological expertise is often necessary to fully understand the risks and benefits of adopting an innovation and emerging technologies course of action.

The task of understanding the complexities of emerging technologies can be daunting to some directors. There is certainly no shortage of buzzwords—blockchain, artificial intelligence (AI), Internet of Things (IoT), Fifth Generation Wireless Networking Technology (5G), drones, augmented reality, big data, edge computing and digital assets, to name a few. Staying informed of potential business advancements and use cases is crucial to the board’s strategic oversight with respect to technology. (A brief explanation of some of the most significant emerging technologies and examples of use cases in various industries is included at the end of this article.)

Access to outside experts as well as technology resources within the company is essential to board education. An emergent best practice for boards involves regular updates from the company’s chief information officer or chief technology officer. These communications are an instructive tool for directors to better understand the company’s technology opportunities and challenges.

While many boards initially focused on the need for director technology expertise in the context of evaluating cybersecurity and data privacy risks, some companies are starting to appreciate the benefits that tech-savvy board members can bring to the boardroom. These experts assist not only in protecting against risks, but also in guiding innovative strategies and opportunities that positively impact the company’s business. A 2019 study conducted by the Massachusetts Institute of Technology’s Center for Information Research concluded that companies with boards that included at least one director with technology expertise outperformed those that did not in several financial metrics—including revenue growth.

In a challenging business environment, many companies are looking to emerging technologies to create efficiencies, improve consumer experience and, ultimately, drive revenue. Companies with boards that are not actively evaluating strategic innovation opportunities now likely will find themselves behind their competitors in the coming years.

In 2020, we expect a growth in the desire of companies to add directors with meaningful technology-related backgrounds and experiences. When selecting new director candidates, nominating committees should consider technology expertise as one of the factors in the overall mix of skills essential for the board to possess. We also expect more companies to create technology committees to focus on both risk mitigation and opportunistic strategy.

Consider Legal and Regulatory Implications

To help guide a company’s technology strategy, it’s critical that boards think about the potential legal and regulatory implications on the front end. It’s no secret that legislation often has difficulty keeping pace with new technologies. However, in 2019, we saw a number of developments that either implemented or signaled impending regulations impacting many emerging technologies, and we expect this trend to continue in 2020. A key driver for this regulatory increase is these technologies’ implications for national security, as well as ethical or other novel concerns.

Regulatory considerations include legislation aimed at specific emerging technologies (such as IoT and AI) and legislation impacting technology more generally. This legislation includes the Children’s Online Privacy Protection Act (COPPA), import/export control, foreign investment laws and data privacy regulations. Other developments include the Securities and Exchange Commission (SEC), Commodity Futures Trading Commission (CFTC) and Internal Revenue Service (IRS) efforts relating to digital assets and cryptocurrencies.

Boards may also need to consider the implications of existing regulations with no context in  emerging technologies so they can work with regulators in a collaborative manner, and steer the company’s technology strategy.

Become Familiar with Key Emerging Technologies

Directors should be familiar with the most significant emerging technologies:

  • AI, Deep Learning/Machine Learning and Predictive Analytics – AI is the ability of computer systems to perform tasks that normally require human intelligence, such as the ability to reason and make decisions, learn from past experiences, recognize speech and utilize visual perception. Applications of AI abound for companies that use or have access to large amounts of data. For example, AI is being used by corporations in multiple industries to implement fraud detection strategies, as well as targeted advertising campaigns. Other applications range from the decision-making abilities of autonomous vehicles to AI-assisted robotics used in surgery.
  • Blockchain – At the most basic level, a blockchain is a distributed (meaning viewable or editable on multiple devices called “nodes”) digital list (or ledger) of transactions (blocks) chained together in chronological order in a manner such that alteration of the chain is detectable. While cryptocurrencies—which typically utilize public ledgers—were the first use of blockchain technology, many industries are finding compelling enterprise use cases for permissioned (or nonpublic) blockchains. Use cases of enterprise blockchain implemented to date include:
    • Payment transactions (for example, to net settle payments between insurers)
    • Content licensing and royalty distribution in the media industry
    • Supply chain management to track food safety and management
    • Security of patient records and pharmaceuticals in the health care industry.

However, directors should be aware that blockchain is not a cure-all. Blockchain use cases that solve a failure in coordination are most likely to be successful in the enterprise context.

  • Extended Reality – Extended Reality (XR) refers to a range of digital enhancements to the real world, including virtual, augmented and mixed reality. While e-gaming and other forms of entertainment are the most obvious uses of XR today, there are a wide variety of potential uses across industries. Augmented reality is being used in the retail industry to enhance the consumer experience—for example, customers can now virtually try on make-up or clothing. Virtual reality is being used in numerous industries to implement effective employee training programs designed to enhance safety or simulate human interaction, as well as in the medical industry to treat chronic pain.
  • IoT and Edge Computing – IoT refers to the interconnection of computing devices embedded in objects so they are capable of sending and receiving messages. Edge computing is, in general, the capability of those devices to compute in or near the source of the data—rather than sending information back and forth from the cloud—which decreases delay or latency.

As businesses deploy connected consumer and industrial devices to implement opportunistic strategies, more and more devices are becoming a part of the IoT and changing the way businesses and end users conduct everyday activities. As with other emerging technologies, IoT and edge computing have a wide assortment of potential uses that will impact companies in a variety of industries, such as health and fitness, home appliances, autonomous vehicles, insurance and energy.

  • Unmanned Aircraft Systems (UAS or Drones) – UAS are unmanned aircraft and the equipment used to remotely pilot them. There are a growing number of businesses seeking to utilize UAS as part of their business strategies. Companies are using the technology for:
    • Inspection of energy and telecommunications infrastructure
    • Damage assessments in the insurance industry
    • Fulfillment and logistics for the retail industry
    • Monitoring and planting agricultural crops
    • Filming entertainment and sporting events
    • Personal transportation (or urban air mobility).
  • 5G – Fifth-generation wireless networking technology, or 5G, promises significantly faster data speed, lower latency, increased network capacity and increased connection reliability. In addition to impacting the communications industry, 5G will increase the capabilities of many of the other emerging technologies (particularly IoT and XR) and, in turn, have implications across numerous industries in 2020, including:
    • Media and entertainment
    • Retail and manufacturing
    • Energy and utilities
    • Health care
    • Insurance
    • Transportation.

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.