2014 Annual Corporate Directors Survey: Trends shaping governance and the board of the future. The full report addresses board performance, diversity, practices, priorities as well as IT and cybersecurity oversight, strategy and risk oversight, and executive compensation and director communications.
On November 4, Republicans won control of the US Senate, picking up eight seats for a majority of 53. Coupled with increasing its majority by 12 seats in the US House of Representatives, Republicans will have control of both chambers when the new Congress convenes in January 2015. With three races in the House and one in the Senate still undecided, that majority could grow.
Directors should be thinking about how this change will affect the level of uncertainty pending legislation could potentially have on their companies. For one thing, certain tax provisions, such as the research credit, 50% bonus depreciation, and section 179 small business expensing have expired could be taken up in the lame duck session this year before the 114th Congress convenes in January.
Beginning with the lame duck session already underway, directors should be mindful of three areas in the coming weeks and months: (1) extension of certain tax provisions, (2) Dodd-Frank Act rulemaking, and (3) possible changes in the Affordable Care Act (ACA).
2014 Annual Corporate Directors Survey
P“We structured this year's survey to gauge director sentiment on a number of key governance trends shaping the board of the future,” said Mary Ann Cloyd, Leader of PwC's Center for Board Governance. “As directors continue to face scrutiny from investors, regulators and other stakeholders, board practices remain in the spotlight.”
Among the board practices that have the attention of more directors are those regarding IT.
“Over the past few years, we've seen significant changes to board practices regarding IT oversight and cybersecurity,” Cloyd said. “There is increasing recognition that IT is a business issue, not just a technology issue.”
Use the following links to learn more about specific topics addressed in this year’s survey: Board performance and diversity, Board priorities and practices, IT and cybersecurity oversight, Strategy and risk oversight, and Executive compensation and director communications. To download the complete report, click here.
PwC’s Center for Board Governance recently published the fourth in its Audit Committee Excellence Series, Achieving excellence: Overseeing external auditors. The publication addresses leading practices related to communications with the external auditor, the chair’s relationship with the lead audit partner and the firm, evaluating the external auditor’s performance, and the company’s preapproval controls for services provided by the external auditor. The publication also discusses third-party influencers that can have an impact on the committee.
Effective oversight of the external auditor is an important element of the financial reporting process. And today’s environment is one of heightened investor and regulator expectations. Audit committees recognize the importance of maximizing their relationship with their external auditors. The following are some of the actions the publication identifies to help audit committees achieve excellence:
Read Achieving excellence: Overseeing external auditors edition. Visit the Audit Committee Excellence Series website for past editions on Forward-looking guidance practices and potential risks of consensus estimates, Financial reporting oversight, and Overseeing internal audit.
As cybersecurity has risen to the top of many boards’ risk management agendas, there is a more compelling need for clear dialogue between the C-suite and the board.
Some directors report they are frustrated because they are not getting the information they need from the CIO or CISO to appropriately assess the company’s cyber risks, according to Charles Beard, a principal in PwC’s forensics practice. He is a former senior vice president and general manager of cybersecurity at Science Applications International Corp.
“One way to address this issue is to change the message from one focused on the technical aspects of the company’s approach to one focused on oversight of a comprehensive and multi-disciplinary cybersecurity program,” Beard said. He also suggests the person delivering that program-focused message should be someone who can more easily communicate it to the board in contextual risk terms, such as the general counsel.
Why should a company have such a program? As regulators and plaintiffs in civil lawsuits take increasing interest in companies’ cyber operations and duties, IT budgets reflect a “do-more-with-less” approach, digital devices proliferate and network access becomes pervasive. Effective risk management is required to manage these increased vulnerabilities. A formal comprehensive risk management program acknowledges the reality that companies are inextricably linked to all things digital and that breaches are an increasing threat.
The audit committee’s role is not getting easier, but it has a lot of resources in its arsenal to help meet today’s high expectations. A high-performing in internal audit function can be a valuable resource.
About one-third of board members believe internal audit adds less than significant value to the company and only 64% believe internal audit is performing well at delivering expectations, according to PwC’s 2014 State of the internal audit profession study – Higher performance by design: A blueprint for change. Even chief audit executives (CAEs) are critical of their functions’ performance, with just two-thirds saying it’s performing well.
This Issue in focus discusses what the audit committee can do to help internal audit improve its performance and provide more value. For a more in-depth discussion, read the current edition of our Audit Committee Excellence Series. Achieving excellence: Overseeing internal audit.
Directors for public companies of all sizes are spending time in their boardrooms discussing one particular class of shareholders: activists.
What is the current assessment of activist shareholders such as hedge funds?
In many cases they deliver steady returns, produce sophisticated plans to improve value, have effective messaging, and can have a big impact with relatively low investment. In addition, they are more accepted in the marketplace. This was the view from a March 2014 PwC Deals practice webcast.
“One of the key points is that the activist hedge funds are outperforming the market,” Ron Chopoorian, a PwC Deals partner, said. “There’s also been a fundamental shift in the sentiment about activists. They are no longer seen as corporate raiders; they are seen pushing for shareholder value.” Some evidence of that acceptance by the marketplace is that pension funds and endowments committed $7 billion to activist funds in 2013, according to PwC.
Risk appetite should have a starring role in a company’s overall strategy and investment decisions. But the concept can be confusing.
So what is risk appetite, and why is it so important?
By definition, it is the amount of risk an organization is willing to accept in pursuit of strategic objectives. When done right it is a robust process that can help management and the board understand exposures and make appropriate risk-based strategic decisions. [Read more in a new PwC publication Board oversight of risk: Defining risk appetite in plain English.]
The Public Company Accounting Oversight Board (PCAOB) has proposed standards and amendments setting out a new auditor’s reporting model and the auditor’s responsibility regarding other information. Earlier this month these were the focus of a two-day public meeting of the PCAOB in Washington, D.C. The meeting, which included directors, audit firms, investors, and other parties involved in the financial reporting process, focused on:
The proposed standards were released for comment August 2013. The comment period, which originally ended in December 2013, was reopened and now ends on May 2.
How does an audit committee "raise the bar" on its performance? The PwC Center for Board Governance is publishing the Audit Committee Excellence Series (ACES) to help address this question. The series provides practical and actionable insights, perspectives and ideas to help audit committees maximize committee performance. While targeted to directors serving on audit committees, it is also beneficial to others working with audit committees including CFOs, CAOs, general counsels, and internal auditors.
The inaugural edition covers a company's forward-looking guidance practices and the potential risks associated with analysts' consensus estimates. It provides board-level perspectives regarding current trends, as well as the pros and cons of providing guidance. The release also suggests being alert to certain types of management behaviors that can be considered "gaming" reported results to meet consensus estimates.
The next edition will focus on financial reporting oversight. It will discuss the importance of press releases covering preliminary results, considerations for audit committees before releasing results, and tips for reviewing actual filings. The third edition will cover the role of internal audit and will help audit committees oversee and maximize the value of this important resource.
To read the eight-page inaugural edition, click here.
The new voluntary US Department of Homeland Security standards for cybersecurity and the recent point of sale (POS) data breaches at some US retailers show that cybersecurity is not just an IT problem.
Actually, cybersecurity is a business issue that can wreak havoc with any organization that uses the Internet or wireless technology to do business. In addition to the obvious intellectual property and customer data security, privacy and IT risks, successful cyber-attacks can affect a company’s brand, reputation, and business relationships. The data most vulnerable to attacks have been customer credit card numbers and PINs, employees’ personal healthcare information, and companies’ third party suppliers confidential information.
While 69% of CEOs responding to the PwC 17th Annual Global 2014 CEO Survey say they are somewhat concerned or extremely concerned about cyber threats, 24% of directors responding to the PwC 2013 Annual Corporate Directors Survey say they are still not sufficiently engaged in understanding their company’s cybersecurity spend.
Mary Ann Cloyd, leader of PwC’s Center for Board Governance, recently talked with Noreen Doyle, director of Newmont Mining Corp., Credit Suisse, and QinetiQ Group Plc, and Jim Nevels, chair of The Hershey Co, about a variety of issues including shareholder communication, risk oversight, and board diversity. Read more.
PwC has released its 2013-2014 edition of Key considerations for board and audit committee members. It is an annual report published by PwC’s Center for Board Governance to address the changing boardroom agenda that outlines topics that can help enhance the quality of board and management discussions in the coming year.
The topics covered in the report include strategy (considering megatrends, the customer experience, and supply chains), emerging technologies and Big Data (tapping new avenues for revenue and growth), risk oversight (focusing on cybersecurity and third parties), talent pipeline (having the right skills and experience for the future, including the boardroom), corporate ethics (gauging the compliance atmosphere), the financials (keying in on complex accounting, and keeping up with regulators and standard-setters), and stakeholder communications (deciding when to engage and whether to expand the audit committee report).
A new PwC comprehensive report examines the views of corporate directors and institutional investors on current corporate governance issues. The report, What matters in the boardroom? Depends on whose shoes you’re in, compares results from PwC’s 2013 Annual Corporate Directors Survey and 2013 Investor Survey. It also includes certain CEO perspectives from PwC’s 16th Annual Global CEO Survey.
“We prepared this report to compare the responses of these two groups and identify areas where viewpoints are shared or differences exist” said Mary Ann Cloyd, Leader of PwC’s Center for Board Governance. “We hope this information helps directors, investors and management teams better understand where their views are similar and where they differ.”
There is considerable alignment between directors and investors on the important issues directors should be focusing on in the coming year, according to the report. Both groups include strategic planning, risk management, and succession planning on their top five lists of priorities. Ninety-five percent of investors say strategic planning is the “most or a very important” area for director focus while nearly eight of 10 directors say they want to spend more time in that area going forward.
Boards confront an evolving landscape
Many companies today are considering implementing transformational changes to their businesses, that may include mergers and acquisitions (M&A), new go-to-market strategies, or significant technology rollouts. According to PwC’s 16th Annual Global CEO Survey, 61% of CEOs say they anticipate change in 2013 at their companies in M&A, joint ventures, or strategic alliances, and 75% said the same about an increase in technology investments.
To be successful in today’s complex and competitive world means companies must think ahead and be willing to transform themselves to respond to economic, political, regulatory, technological, and other pressures. Transformation comes with risk. Mismanagement of these risks can lead to negative outcomes, including failing to achieve strategic objectives, significant disruption to operations, and possible damage to a company's reputation.
The likelihood of a failed transformational program is high: 70% of all attempted organizational changes fail, according to Dr. John Kotter, who wrote The 8-Step Process for Leading Change.
This issue of BoardroomDirect® is a Special Edition that links to the third edition of ProxyPulse, a collaboration between Broadridge Financial Solutions and PwC's Center for Board Governance. This edition is a recap of the 2013 proxy season, providing a comparison of the 2012 and 2013 proxy seasons and offers analysis of director elections, say on pay, proxy material distribution, and the mechanics of shareholder voting. In addition, there are key questions directors might ask. The analysis by PwC in ProxyPulse is based upon Broadridge’s processing of shares held in street name, which accounts for over 80% of all US publicly traded shares outstanding.
Boards confront an evolving landscape
There is unprecedented change in the corporate governance world: new perspectives on boardroom composition, higher levels of stakeholder engagement, more emphasis on emerging risks and strategies, and an increasing velocity of change in the digital world. These factors, coupled with calls for enhanced transparency around governance practices and reporting, the very active regulatory and lawmaking environment, and the perceived increased influence of proxy advisors are all accelerating evolution in the boardroom. In some cases, even a revolution.
The following are some of the insights from Boards confront an evolving landscape: PwC’s 2013 Annual Corporate Directors Survey. During the summer, 934 public company directors responded to survey questions. Of those directors, 70% serve on the boards of companies with more than $1 billion in annual revenue.
To read the results of this year’s survey, click on each of the following category links: Board composition and behavior, IT oversight, Executive compensation, Stakeholder communications, Strategy and risk management, Regulatory and governance environment.
Many boards today are trying to figure out if they have the proper skills and experience to guide their companies now and in the future. Each board needs to consider whether the backgrounds and experience of its existing directors are appropriate or if new skills are needed. Recently, some critics have been outspoken about their perception of deficiencies in the current state of board renewal.
And some board members themselves are questioning the competency of their fellow directors. While a majority of directors at companies with annual elections are elected with at least 90% of the vote, there are still plenty of directors dissatisfied with their current board’s composition. Early results from PwC’s 2013 Annual Corporate Directors Survey show that 35% of 934 directors responding say someone on their board should be replaced, up from 31% a year ago. The top three reasons cited are diminished performance because of aging, lack of expertise, and lack of preparation for meetings.
On average, directors are getting older and fewer are leaving boards to make way for the next generation. The 2012 Spencer Stuart US Board Index reports that the number of new directors has slowed to 291 of 5,184 total director seats in 2012, a 27% decrease from 2002. At the same time, the average age of directors (68), average board tenure (8.7 years), and mandatory retirement age (72-75) have all risen. Currently 73% of S&P 500 companies have existing mandatory retirement age policies, but sometimes they are waived. Only 4% of S&P 500 boards specify director term limits with the majority setting the limits between 10 and 15 years.
Non-financial companies that use over-the-counter (OTC) derivatives to hedge risks, such as currency, interest rates, and fuel costs, are facing myriad decisions regarding the execution and management of those financial tools under the Dodd-Frank Wall Street Reform and Consumer Protection Act.
While management is still responsible for making the business decisions, under Dodd Frank the board is now charged with some specific oversight responsibilities. The regulatory reform, which is going into effect in phases this year, will lead to changes in business strategy, funding, operations, and accounting related to the use of derivatives.
Derivatives are agreements between a corporation and a bank that derive their value from underlying assets, such as interest rate payments, currency, commodities, stock, or any other financial instruments that can be traded. Meant to manage future uncertainty, derivatives often occur in the form of swaps and futures. The Dodd-Frank reforms, which include SEC and Commodities Futures Trading Commission (CFTC) rules, regulate the swap market. The futures market is already regulated by the CFTC.
Some in the political and regulatory communities perceive derivatives as a key contributor to the 2008 financial crisis. One of the goals of the Dodd-Frank derivatives provisions is to lessen risk and increase stability in the market. This comes with increased compliance, reporting, and recordkeeping requirements, which will lead to increased costs and changes related to the use of derivatives.
This issue of BoardroomDirect® is a Special Edition that links to the second edition of ProxyPulse, a collaboration between Broadridge Financial Solutions and PwC's Center for Board Governance. It provides a deep dive into shareholder voting patterns with a focus on company size. The publication looks at director elections, say on pay, board declassification and political spending disclosure. In addition, there are key questions directors might ask. The analysis by PwC in ProxyPulse is based upon Broadridge’s processing of shares held in street name, which accounts for over 80% of all US publicly traded shares outstanding.
Many companies provide sustainability disclosure, but few embrace integrated reporting
As more companies feel pressure from investors to disclose their sustainability and corporate responsibility information, their boards are asking management for their plans on integrated financial reporting.
Olivia Kirtley, a director at Papa John’s International and US Bancorp, raised the question of integrated reporting at a recent PwC event as she cited a new reporting model from the Investor Responsibility Research Center Institute (IRRC) and Sustainable Investments Institute (Si2).
She asked Kayla Gillan, leader of PwC’s Investor Resource Institute, if she thought integrated reporting is a priority for some of the larger investors. Gillan, who has previously served as general counsel at CalPERS, a board member of PCAOB, and Deputy Chief of Staff to the SEC Chari, responded that certain institutional investors do support integrated reporting but that is not the case throughout the investment community. “I haven’t seen a lot of embracing of integrated reporting,” said Gillan “CalPERS, CalSTRS and BlackRock, who are leaders in the investment community on sustainability issues, do support it. But I haven’t seen a lot of others put significant weight behind it right now.”
Integrated reporting is not required of or commonly done by US companies. Almost all of the S&P 500 have some form of sustainability disclosure, but most of those companies don’t go as far as using integrated reporting, according to the 285-page report from IRRC and Si2.
Putting the spotlight on illegal insider trading
Insider trading has been making big headlines lately. Since 2010 168 actions have been filed against nearly 400 individuals and entities.
Illegal insider trading is defined as trading in a corporation’s securities while in possession of material non-public information, which is in breach of a fiduciary duty or other relationship of trust and confidence to either the corporation or the source of the information. Some trading activity by insiders is not considered to be “illegal insider trading” if it occurs under Rule 10b5-1, as discussed below.
The financial, reputational, and criminal penalties for illegal insider trading can be severe for individuals and companies. Violators can face civil penalties such as being disgorged of profits gained or losses avoided, paying three times that amount in fines, and being barred from serving as a director or officer of a public company. Criminal penalties include fines up to $5 million and up to 20 years in prison. Employers may face potential civil and criminal exposure; either vicariously liable for the actions of their employees, or for recklessly failing to prevent employees from engaging in illegal trading. There’s also the potential for negative publicity that can impact a company’s reputation.
While the most high-profile insider trading allegations have historically been made against individuals, more recently, the focus has shifted. The SEC and US Department of Justice (DOJ) are now investigating hedge funds, expert networks, 10b5-1 plans—and even directors.
This issue of BoardroomDirect is a Special Edition that introduces ProxyPulse, a collaboration between Broadridge Financial Solutions and PwC's Center for Board Governance. The first edition reports that while many shareholder engagement programs focus on institutional shareholders, the influence of retail shareholders should not be discounted. The analysis by PwC is based upon Broadridge's processing of shares held in street name.
Cybersecurity risk on the board’s agenda
As the number of database breaches, company web site hacks and loss of intellectual properties grows, company boards realize cybersecurity is not just a technology risk. It can be an enterprise risk management issue.
What’s at stake for companies are their so-called “crown jewels”, those information assets or processes that, if stolen, compromised, or used inappropriately would render significant hardship to the business.
Cybersecurity issues are among the top risk management issues facing companies, according to recent surveys by PwC. The PwC 2012 Annual Corporate Directors Survey of 860 public company directors found that nearly three-quarters (72%) of directors are engaged with overseeing and understanding data security issues and risks related to compromising customer data.
Issue in focus: Capital projects: Is your board doing enough?
A PwC analysis of 52 capital project missteps at public companies has revealed that after a public announcement of a capital project delay or shutdown, a majority of companies experience a steady decline in share price. By the three-month mark following the announcement, the decline in share price averages 15 percent. In the most severe case of the companies analyzed, one experienced an almost 90 percent decline in share price.
Large capital projects - with their multi-year timelines, changing requirements, and complex procurement issues — are inherently risky. They require diligent oversight from management and the board because of their impact on the company’s financial health. PwC research found that most major capital projects are likely to exceed their budgets by at least 50%.
Lack of board oversight can result in severe consequences. For example, in the power sector, regulators have rejected substantial portions of capital funding requests in situations where they believe management and the board could have exercised better oversight of costs, schedules, and risks.
Issue in focus: Therapy for “deal fever”: An objective, disciplined due diligence process
In this post-financial crisis environment, the mergers & acquisitions market is extremely competitive as both corporate and private equity investors have capital to invest but fewer quality deals in the marketplace to invest in. A competitive deal environment drives up bids and puts pressure on transaction timelines, increasing the potential for deal bias and conflicting interests.
These risks can be exacerbated when public companies are involved. Buyers may pay significant control premiums over the trading price of the stock but may have limited access to the information necessary to assess the deal strategy, risks, and value. The limitations imposed on receiving non-public information can arise from a variety of factors, including the dynamics of the sale process, regulatory considerations, and commercial sensitivity. Since there are virtually no contractual protections if something goes wrong in public deals, buyers are essentially taking the business “as is.”
Issue in focus: Lagging economy, active regulatory environment on boards’ minds
Understanding key issues that affect the company is a critical element of a director’s responsibility. As part of their oversight, directors should ask questions that help them get their arms around those issues in an ever-changing world and governance environment.
PwC’s 2013 Key questions for board and audit committee members focuses on areas including strategy and risk management, anti-corruption and compliance, financial reporting, information technology, and shareholder and stakeholder communications. Read more.
Many company directors and their chief information officers (CIOs) are struggling to understand each other's information technology needs. Directors are often challenged by IT’s complexity and related technical language. CIOs aren't always sure which information the board wants or how to simplify the discussion. Read more.
More US public company boards are making climate change issues a regular part of their strategic risk oversight.
The 2012 Carbon Disclosure Project (CDP) S&P 500 Climate Change Report, co-written by PwC and the CDP and released on September 12, shows that 92% of the 2012 S&P 500 respondents reported board or executive-level oversight over sustainability issues including carbon reduction, compared to 86% in 2011. Read more.
This issue of BoardroomDirect® from PwC covers audit firm inspection reports, board declassification, proxy issues, virtual shareholder meeting guidelines, and FASB inputs on disclosure frameworks and a revised asset impairments model. Read more.
This issue of BoardroomDirect covers the fraud risk management expectation gap between internal audit and company stakeholders, which includes empowering the chief audit executive. Don Keller, a partner in PwC's Center for Board Governance, shares a tool internal audit can use to enhance its brand. Read more.
Also highlighted in this month's edition: latest on conflict minerals disclosure rules, the closing of an online shareholder voting platform, the SEC staff release of its long-awaited report on IFRS, and FASB's decision to remove the loss contingencies project from its agenda.
The US Supreme Court on June 28 upheld the 2010 Affordable Care Act (ACA). The Court ruled that a core provision of the healthcare law — the requirement that every American have health insurance — is constitutional since the Court considers it to be a tax.
The PwC publication Implications of the US Supreme Court ruling on healthcare briefly outlines the implications for hospitals and healthcare providers, insurers, pharmaceutical companies, and employers from every sector. In particular, directors may wish to focus on the "Path forward" sections that are relevant to their companies.
Also inside this edition:
This issue of BoardroomDirect covers diversity, compensation clawbacks, say on pay, the JOBS Act, and FASB private company standard council. Read more.
This month's headlines
In a year in which a new president could be elected in November, and with the campaign process narrowing to two candidates (observers suggesting the likely Republican candidate will be Mitt Romney versus the incumbent Democrat President Obama), political spending disclosure shareholder proposals take on even more importance for companies that make political contributions.
Such shareholder proposals have been among the most popular this proxy season.
As of April 16, shareholders have filed 119 proxy proposals requiring corporate political spending disclosure.
Also inside this edition:
Shareholder proxy access as originally proposed may be dead, but the alternate version known as "private ordering" is something boards should be watching during the 2012 proxy season.
A number of institutional and individual investors have gotten an early start on the proxy season by filing shareholder proxy access proposals seeking to amend company bylaws to allow shareholder director nominations to be included in the annual proxy statement. While it is not surprising who filed the proposals, what is noteworthy is the number of companies targeted (16) thus far. Read more.
Also inside this edition:
The economic crisis has been a catalyst for change in the governance landscape. The changes include new regulations enacted as a result of the Dodd-Frank Act, increased regulatory enforcement activities, and increased influence by shareholders and proxy advisory firms. How can directors measure their own effectiveness in this environment? This edition of BoardroomDirect highlights recommendations based on new research we performed and describe in our report, Board Effectiveness - What works best, 2nd edition. Read more.
Also inside this edition:
Not surprisingly, the most-watched shareholder votes this proxy season were the mandatory say on pay vote and the related say on frequency vote. Most companies received strong majority shareholder support for their say on pay vote, and there was a strong preference by shareholders for an annual voting policy. So, what should directors be thinking about now? Read more.
Also inside this edition:
On July 22, 2011, the U.S. Court of Appeals for the D.C. circuit decided to reject the SEC's proxy access rule that would require a company to include in its proxy statement a shareholder's, or group of shareholders', director nominees that meet certain requirements. This supplement to our BoardroomDirect quarterly update series alerts directors to this important development. Read more.
BoardroomDirect serves as a quarterly update designed to provide you with highlights of recent key developments affecting directors. However, we have also committed to notify you between quarters when important events unfold. The SEC's issuance of final whistleblower rules on May 25, 2011, is just such an event. As a director, you may be impacted by these rules, and we want to ensure you have the information you need. Read more.
One of a director's most important obligations is to engage in meaningful strategy discussions with the CEO and other senior executives. These discussions should include understanding critical trends, their impact, and how they could create opportunities for growth. The results of PwC's 14th Annual Global CEO Survey can help directors gain perspective and understand what issues are on CEOs' agendas, which will enhance the quality of those discussions. Find out what over 1,200 business leaders had to say: read more.
Also inside this edition:
Companies, business organizations, academicians, auditors, lawyers, whistleblower attorneys, and others have expressed their views about the new whistleblower rule proposed by the SEC in November 2010 in response to the Dodd-Frank mandate for a whistleblower program. With the comment period behind us, the SEC has received nearly 1,200 comment letters, including 950 form letters. Find out what respondents had to say: read more.
Also inside this edition: