The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

This past year’s Russia-Ukraine conflict sparked a significant transformation of the global economic sanctions landscape, with developments and lessons extending well beyond Russia. 

In 2023, boards of directors should continue to monitor Russia-related sanctions across multiple jurisdictions, be aware of the implications of sanctions developments for the energy sector and consider planning for sanctions and export control contingencies, particularly relating to China.

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For a PDF of the full memorandum, please click here.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

In a recent survey of almost 2,800 global organizations, one in five respondents reported experiencing a ransomware attack in 2021—with almost half of those respondents suffering significant operational impacts as a result.

This past year proved to be no better, as a steady stream of governments, businesses and individuals alike became victims of high-profile cyber-attacks in 2022.  Still, despite the frequency, sophistication and severity of these attacks, available data suggests that only about half of U.S. companies even have a cybersecurity response plan in place—and many are not financially prepared should a material cyber-attack occur. As new rules, guidance and initiatives on cyber-related issues continue to emerge, boards should pay particular attention to the demands of cybersecurity oversight and the significant risks posed by cyberattacks, especially as regulators and private litigants continue to bring large numbers of cybersecurity-related actions in response to data breaches.

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The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

As the value of data continues to increase exponentially, so too do the associated risks, including risk of cyberattacks, data breaches or data-related litigation, as well as rising regulation throughout the world designed to restrict the exploitation of these assets. 

This tension between an organization’s desire to maximize the benefits derived from data collection versus mounting exploitation risks will only continue to grow in 2023.  For example, according to the International Association of Privacy Professionals, in the absence of a federal standard in the U.S., state-level momentum for comprehensive privacy bills was at an all-time high in 2022, with 29 states and the District of Columbia either introducing data privacy bills or carrying them over from last year’s sessions, and two states successfully passing comprehensive privacy legislation as discussed below.  Similarly, in Europe, new proposals for regulations designed to address data usage have started to proliferate as policymakers moved from deliberation to action.

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For a PDF of the full memorandum, please click here.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

In the United States, the Inflation Reduction Act of 2022 (IRA) was passed in August. 

The IRA will be of relevance to many U.S. taxpayers, with three particular areas of focus for large corporations: the new corporate alternative minimum tax (CAMT), a new 1% excise tax imposed on certain net stock redemptions and repurchases, and tax credit provisions relating to renewable energy.

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For a PDF of the full memorandum, please click here.

The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

The Department of Labor has been busy with various regulatory initiatives during 2022 and this trend is likely to continue into 2023.

This high-level overview of a couple of noteworthy DOL regulatory initiatives should be useful for boards and management teams alike.  The first  is a proposed amendment to a popular “prohibited transaction” exemption, which, if passed, will have a significant impact on many financial contracts, including existing loan and ISDA contracts.  The second is a final regulation governing ERISA plan investments, which could alter how plan investors consider ESG as part of their investment strategy and manage their investments in public companies.

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The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

2022 has been a pivotal year for sustainability policy worldwide.  In the EU, where sustainability regulation enjoys broad popular and institutional support, sustainability policy shifted from theory to action.

The European Commission has now defined the detailed contours of its sustainability framework – through the Taxonomy Regulation (TR), Sustainable Finance Disclosure Regulation (SFDR), Corporate Sustainability Reporting Directive (CSRD) and Corporate Sustainability Due Diligence Directive (CS3D) – and laid out the related disclosure templates and other implementing rules.  Regulators will now shift their attention to supervision and enforcement.  We briefly outline below the developments that will most affect companies that do business in the EU in 2023 – distinguishing between implementation challenges and possible future developments.

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The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

As the importance of the voluntary carbon markets to global decarbonization goals grows, so too does U.S. regulatory and legal interest in this area, and the importance to public companies and their boards. 

We briefly explain the voluntary carbon markets before discussing related Commodity Futures Trading Commission (CFTC) and Securities and Exchange Commission (SEC) regulatory developments and the potential impact of the Inflation Reduction Act on these markets in the U.S.  The development of transparent, sound and efficient voluntary carbon markets is of vital importance to the growing number of companies using carbon credits to help meet their emissions reduction and net zero goals and to comply with growing disclosure and related regulatory mandates.

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The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

The Delaware legislature recently amended Delaware’s General Corporation Law (DGCL) to allow corporations to limit the personal liability of corporate officers for money damages for breaches of their fiduciary duty of care. Prior to this amendment, Delaware only allowed for such “exculpation clauses”—which must be set forth in the certificate of incorporation—for corporate directors.  This disparity resulted in increased litigation against officers for alleged breaches of duties of care when such claims against directors were not available.  The change in Delaware law is a much needed corrective that permits corporations to treat corporate officers and directors similarly.

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The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

The Securities and Exchange Commission (SEC) and Department of Justice (DOJ) ramped up their enforcement efforts in 2022, often in highly coordinated actions, including with other regulatory agencies such as the Commodity Futures Trading Commission (CFTC), Department of the Treasury’s Office of Foreign Assets Control (OFAC) and Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN).  The DOJ also announced major policy changes regarding corporate criminal enforcement and took steps to convey its seriousness in pursuing actions against individual wrongdoers, recidivists and companies that fail to maintain effective compliance programs.  The SEC was particularly active, setting its record for civil penalties and continuing its enforcement focus on insider trading, digital assets and Environment, Social and Governance (ESG) disclosures.

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The following post was originally included as part of our recently published memorandum “Selected Issues for Boards of Directors in 2023”.

2022 saw a flurry of activity to implement rules under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, a statute passed in reaction to the financial crisis of 2008 but for which enacting guidance had long been absent.

Two significant rules adopted this year in the area of executive compensation are the so-called “pay vs. performance” rules (PVP Rules) and rules on mandatory clawback of incentive compensation (the Clawback Rules). This memo focuses on insights and considerations that have arisen since the passage of the rules and highlights some practical takeaways for boards and management teams as we collectively work through compliance with rules that, in many cases, have created significant unanswered questions.

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For a PDF of the full memorandum, please click here.