Boardroom Governance with Evan Epstein

0:00 -- Intro.1:26-- About this podcast's sponsor: The American College of Governance Counsel.2:13 -- Start of interview.2:45 -- John's "origin story." His time at WLRK and at the SEC.4:15 -- His focus at Harvard Law School and Harvard Business School.4:39 -- About his book THE PROBLEM OF TWELVE: When a Few Financial Institutions Control Everything (2023). Publisher: Columbia Global Reports. "Around the year 2000 [Index Funds and Private Equity Funds] began a sustained takeoff and the book is motivated to tell the story of how that happened and then more importantly what's happened since 2000 with 10-15% compound annual growth every single year for both kinds of funds which is much bigger and much faster than the economy or the capital markets or corporations.""The problem of twelve is just trying to get a catchy way to get people to understand that it's not just growth, that'd be one thing, but it's concentration."11:22 -- On "What came before: the Twentieth Century's Public Company" and the rise of private markets."Actually, the public markets have gotten bigger, even though the number of companies has fallen. It's not like they're shrinking, which sometimes is the way people talk about it. But what's different is their autonomy is declining. So in 1990, the board of a public company and its CEO were the centers of power.  If anything, the CEO was probably the most dominant player and the board was kind of a check. The shareholders were kind of out there, but they really only mattered in a hostile takeover. That was it." "[By year] 2000, 2010, and definitely today what I just described is not true. Boards are now more powerful than CEOs in general. They have a greater influence over setting strategy today.""[The] power started and ended with the CEO in the boardroom. And that really has, I think, dramatically declined and continues to decline as a way of describing how the US economic system works."15:39 -- Evolution of US boardrooms since the 1970s."I think of boards as becoming more important during that period because businesses were stumbling. As long as CEOs were successful in running their empires, I don't think the pressure to provide a different governance system would have been nearly as powerful.""Jay Lorsch at HBS wrote an early study suggesting that boards really were not doing much. Jay was very much part of the movement to get boards to be more active, because he thought that was better than the alternatives of either continued stagnation in economic activity or worse solutions, which other people were proposing."20:19 -- On the impact and evolution of Index Funds."[T]he key thing is scale. It's not as if there's like 55 different index funds all competing with each other. No, there's really just a small number of families [ie. the Big Four, BlackRock, Vanguard, State Street and Fidelity] that are achieving these scale levels. So that's the basic problem of the book.""[W]hen Jack Bogle set up Vanguard, he wasn't setting out to take over half of all the stocks in the country.  It took him 30 years just to get to 2%. It's just a side effect and so the system was not designed with that kind of concentration in mind. "[W]e're now having to go through a period where we've already started and it will continue for people as these things continue to grow and get even bigger to really rethink where should the governance power sit. Should it sit, at the board? Should it sit at the fund portfolio manager who doesn't really exist in an index fund, it's just a guy who has a list? Should it sit with a corporate governance professional that the fund advisor hires, that the fund then gives the power to? Or should it be something more complicated, some set of interactions between different people over time? And I tend to think that last thing I said is the right answer, but getting exactly the solution is hard, which is why I didn't call the book The Solution to the Problem at all, because I don't really have a perfect solution."27:12 -- On the polarization of corporate governance and the ESG backlash."If it had not been climate, which is Larry Fink's, of course, major focus that generated most of the pushback, it would have been something else." "State Street a few years ago made a point of saying publicly that if the boards that they voted for were not sufficiently diverse and they had some specific criteria, they would withhold votes from the nominating committee chair. And you can see in the data, if you look at the way boards are formed, the impact of State Street's intervention."30:35 -- On the pass-through voting initiatives."If you look at the websites that BlackRock and Vanguard and State Street all have up about what they're doing, they're not really passing the votes through or even getting close to it. They're going to let their own investors once a year pick a policy from a limited menu of policies, and then they're going to look how many people pick which policy, and then that will inform how they vote. So they're keeping the votes, but they are going to let people kind of give them an indication of more or less how to vote overall. And so that's some degree of trying to address the problem of twelve.""I think in 10 or 15 years most people will do one of three things: 1) They'll let BlackRock keep voting the way they want to, with their money, and who cares? They're just not paying attention to governance, and that's their right. They can just ignore it; 2) a group of people will be pushing BlackRock to do even more of what they're doing now, to be even more green or left or however you want to think about it; and 3) there will be another group of people who'll be pulling the other way, and then BlackRock will probably be in there, be splitting their vote to some extent on some of the more high-profile issues."On Exxon's proxy fight with Engine No.1.37:28 -- On antitrust and concentration of power in index funds. "Antitrust traditionally would just look at the activity of investment as the right thing to think about concentration and not the governance impact. That's really not part of antitrust law. That's again part of why I wrote the book to get a different focus on this. [But] there are people who want to change antitrust law, they want to take concentration in governance and somehow relate it to portfolio company concentration." "There are claims for example that the index funds caused the airlines to be more collusive than they would be anyway. Or the banks or take your pick and maybe there's some truth to that but it's kind of indirect and I think it's going to take a lot of work to make that feel like you're being directly responsive to the problem and I'm not sure it'll get there in the end.""There are also people who just want to change the basic understanding what antitrust is about, introduce politics into it again, and say this is a political problem and therefore we should use antitrust. There is a lot of resistance to that."39:39 -- On the private equity industry."The biggest PE complexes not only have equity capital that they manage, they also have debt capital. And so in a difficult interest rate environment, that's a nice place to be. You have resources that you can tap on the credit side as well as on the investment side. And so I think, again, as with index funds, we're seeing greater concentration of greater growth driven by slightly different economies of scale, but I think still real, that allow the biggest players to sort of sit at the intersection of lots of different capital market activity. And that lets them leverage the information they gather across a much bigger base [and] grow faster than their competitors. I expect the big PE players are going to continue to do better than PE overall and better than the overall economy, even if they may run into some challenges in the next few years."43:05 -- On PE driving ~25% of all M&A activity. "PE complexes in a lot of ways are sort of replacing a role that banks used to play, but without any of the regulation."46:25 -- On the governance distinctions between PE-backed companies and public companies."[PE-backed boards are often] more focused and effective.""[T]he PE world by design is with almost no public disclosure. There is disclosure sometimes of some things from the PE fund or advisor to LPs [but] the information flows [generally] are quite weak. And they're weakest in some respects around conflicts, which it should be the other way around. The conflict should be the place where the people with the equity at stake ought to be told the most and yet often that's the place where the system does not, in my opinion, live up to its billing. Part of the reason for that, it's not often appreciated that most of the money in PE funds comes from other funds, meaning, and in particular comes from pension funds who are overseen by well-meaning people, who often are honest and straightforward, but frankly are not up to, in my opinion, the task of overseeing a PE complex and their advisors. There's an industry association, the ILPA, that sort of tries to help coordinate across PE fund investors, the positions they take on disclosure and conflicts."54:58 -- On SPACs."[T]here's a lot of companies right now that are going through some difficult governance challenges in the current economic environment in which the SPAC structure and the board that it brought in might be at odds with the sponsor or other people that were associated with the SPAC.""If you're on a board or advising a board of a company that's associated with a SPAC, this is the time to really lean in about your conflicts, because the conflicts are absolutely really acute right now because of the interest rate environment."*On SPAC Law and Myths (Feb 2022).56:19 -- Books that have greatly influenced his life: City of Capital: Politics and Markets in the English Financial Revolution by Bruce Carruthers (1996)Wolf Hall by Hillary Mantel (2009)Mars Trilogy by Kim Stanley Robinson (1990s)58:38 -- His mentors: Tom Noble (College advisor and History Professor)Craig Wasserman (WLRK)1:00:14 -- Quotes that he thinks of often or lives her life by: "Without contraries is no progression." [Poet William Blake]1:00:43 -- An unusual habit or absurd thing that he loves: U.S. Soccer.1:02:25 -- The living person he most admires: Tina Fey.John Coates is the John F. Cogan, Jr. Professor of Law and Economics at Harvard Law School, where he also serves as Deputy Dean and Research Director of the Center on the Legal Profession. __This podcast is sponsored by the American College of Governance Counsel.__ You can follow Evan on social media at:Twitter: @evanepsteinLinkedIn: https://www.linkedin.com/in/epsteinevan/ Substack: https://evanepstein.substack.com/__You can join as a Patron of the Boardroom Governance Podcast at:Patreon: patreon.com/BoardroomGovernancePod__Music/Soundtrack (found via Free Music Archive): Seeing The Future by Dexter Britain is licensed under a Attribution-Noncommercial-Share Alike 3.0 United States License You can follow Evan on social media at:X: @evanepsteinLinkedIn: https://www.linkedin.com/in/epsteinevan/ Substack: https://evanepstein.substack.com/__To support this podcast you can join as a subscriber of the Boardroom Governance Newsletter at https://evanepstein.substack.com/__Music/Soundtrack (found via Free Music Archive): Seeing The Future by Dexter Britain is licensed under a Attribution-Noncommercial-Share Alike 3.0 United States License

Abby Adlerman, an expert in board oversight, accountability, risk mitigation, and strategy, discusses topics such as high-performing boards, board culture, and the importance of board committees. She also reflects on her time in investment banking, the challenges of implementing board evaluations, and the politicization of ESG in governance. Additionally, she explores the concept of single issue directors and emphasizes the impact of mentors and unusual habits. Finally, she expresses admiration for Barack Obama and Bruce Springsteen and plans for a potential meeting.

Guests include Evan Epstein, Heidi Roizen, and Dan Siciliano. They discuss topics such as the role of independent directors in venture-backed companies, fiduciary duties, conflicts of interest, and the negative impact of structured deals. They also emphasize the importance of good governance, shareholder protection, and understanding financial concepts in private company boards.

Julie Daum discusses the aging of US boards and the lack of turnover. They explore the recruitment of retired or active CEOs, the increase in directors with financial backgrounds, and the trends in board diversity efforts. They also discuss the role of ESG and the potential impact of AI on board placements.

0:00 -- Intro.1:38-- About this podcast's sponsor: The American College of Governance Counsel.2:34 -- Start of interview.3:13 -- Mauro's "origin story." 4:11 -- About AMEC, and his time as CEO of the organization (2012-2017). Prior, he was Chairman of IBGC (2008-2010). "My first mission as CEO of AMEC was to become the first independent director at Petrobras" (which he served from 2013 to 2015).9:02 -- On the differences between shareholder engagement/activism in the U.S. and Brazil. 10:04 -- The corporate governance changes introduced by Novo Mercado (special listings segment created in Brazil in 2000).11:39 -- About the Petrobras corruption scandal ("Lava Jato" or "Car Wash"). He was the first independent director in Petrobras (2013) and they elected a second independent director in 2014. "1+1 in that situation equals 4." "The board simply did the Government's bidding." "But it's all gone now, there has been a huge backlash. There is no one in jail anymore." "Just like what happened in Italy with the Clean Hands Operation, there is a political wave of acquittals." "There was a class action settlement in the U.S. for $3.5 billion (2016) and PwC settled for $50 million (2018)."18:58 -- His joining the board of Vale (2021-2023), post Brumadinho dam disaster (2019). "I was elected to the board as part of an activist campaign, led by Capital Group." 23:28 -- On the SEC's action against Vale for greenwashing (settled in 2023 for $55.9 million). "Vale became a lightning rod and it is a rich company in a poor country and in a poor region of a poor country." "One executive of the company used the expression that was Vale is the peacock in the Favela." "[Vale] gets a lot of attention and focus and sometimes not fairly. It does some amazing things in terms of ESG." "Vale is actually an example that responsible mining is not only essential for the energy transition, but it actually can be good for the environment. But there's a lot of bad press around it."24:40 -- His take on ESG: "ESG should not be driven by rankings, reports and ratings. It must be driven by owners."28:50 -- On the ESG backlash. "Part of the problem has to do with the architecture of the institutional investors." "The productive way for investors to ensure that companies are doing the right thing is one-on-one engagements that cannot be done wholesale. It needs to be done in a more retail way. So this increases the value of specialized asset managers that have a smaller portfolio, that may or may not be called activists."32:11 -- On joining the board of Embraer. The impact of the Pandemic and 'work from home' in Brazil.34:55 -- On the evolving geopolitical landscape, China/US tensions and where Brazil stands in this picture. 39:17 -- On the role of independent directors, and evolution in Brazil in the last 20 years:"When you get into a situation like I was in Petrobras, you need to know where your red lines are and what to do when they're reached. You can fight and in some cases it may be the case that you need to leave and do a noisy withdrawal as I've done several times in my career so.""I fear that in many situations we have lots of companies reporting larger percentages of independent directors on their boards, but these are not really independent.""[You have to] be true to your values, know your red lines, but at the same time, try to work with people. And some things will not be the way you want. So a director who simply says no when the board goes in a way that he or she doesn't agree with is not going to be productive.  So you have to, in Brazil we say we need to swallow some frogs every once in a while. You just have to watch out to make sure what are the sizes of frogs that you can swallow to make it for productive mandate on the board, but at the same time not compromising your values."43:44 -- On the question of single issue directors. "I think it's a big mistake for a number of reasons. First, because it's not enough space for all the issues to be on the boards. The other problem is that if you have a specialist on the board, say in cyber security, every time the issue of cyber security comes up, everybody will look at this guy and say, whatever he or she is telling us to do, you're outsourcing your fiduciary duty, which is terrible."45:45 -- "Brazil today has very different companies. This means that the governance structure for each one of them has to be different. And we have to understand, it's case by case, and we need to build the governance structures that are adequate to each company." "I think when we think about ESG, we're really talking about E&S, and people are forgetting the G. The G is what gets E&S done. E&S without the G is greenwashing."47:49 -- Book that has greatly influenced his life: Atlas Shrugged by Ayn Rand (2003)48:00 -- His mentors, and what he learned from them: André Jacurski and Paulo Guedes (founders of Banco Pactual).48:33 -- Quotes that he thinks of often or lives his life by: "We didn't come this far just to come this far"48:50 -- The living person he most admires: Bill Gates.Mauro Cunha is one of the top corporate governance voices in Latin America, currently serving as a director of Embraer, AES Brasil, Klabin and Hypera. He has also served on the boards of some of the most important companies in Brazil - including Vale, Petrobras, Eletrobras, among others. __This podcast is sponsored by the American College of Governance Counsel.__ You can follow Evan on social media at:Twitter: @evanepsteinLinkedIn: https://www.linkedin.com/in/epsteinevan/ Substack: https://evanepstein.substack.com/__You can join as a Patron of the Boardroom Governance Podcast at:Patreon: patreon.com/BoardroomGovernancePod__Music/Soundtrack (found via Free Music Archive): Seeing The Future by Dexter Britain is licensed under a Attribution-Noncommercial-Share Alike 3.0 United States License You can follow Evan on social media at:X: @evanepsteinLinkedIn: https://www.linkedin.com/in/epsteinevan/ Substack: https://evanepstein.substack.com/__To support this podcast you can join as a subscriber of the Boardroom Governance Newsletter at https://evanepstein.substack.com/__Music/Soundtrack (found via Free Music Archive): Seeing The Future by Dexter Britain is licensed under a Attribution-Noncommercial-Share Alike 3.0 United States License

Brian Stafford, CEO of Diligent, discusses topics such as governance oversight, the new Diligent One Platform, his book on governance in the digital age, ESG and its ties to company strategy, and the distinctions between public and private equity-backed boards.

0:00 -- Intro.1:10 -- About new podcast sponsor American College of Governance Counsel.2:28 -- Start of interview.3:17 -- Joyce's "origin story" 5:22 -- Joyce's academic focus and executive career before joining boards of directors.8:12 -- On her board journey. "It began with non-profit board work." On serving in different types of boards. "They all offered an opportunity to collaborate with board colleagues, very smart people - learning from them, with a clear focus on growth of the institutions through innovation and being intentional about them."11:15 -- On the state of agtech. 13:54 -- Her experience serving on the board of Sunrise Banks, and more generally on the board of a Certified B Corporation.19:54 -- On the ESG and DEI backlash. "Politics is part of the system in which corporations operate."25:51 -- Her take on the current state of board diversity.33:43 -- Opportunities in Africa. 39:19 -- On the current geopolitical landscape, particularly with the U.S. decoupling/de-risking from China. Impact on global supply chains. "Near shoring, and on-shoring are critical (instead of investing in long supply chains)."45:33 -- How should corporate directors approach AI technologies.50:08 -- Book that has greatly influenced her life: Of Mice and Men by John Steinbeck (1937)51:38 -- Her mentors, and what she learned from them: her mother, dad and Robert "Bob" Bucklin (her former boss at Rabobank International).53:45 -- Quotes that she thinks of often or lives her life by: "There is no failure, only lessons."54:40 -- An unusual habit or an absurd thing that she loves: white water rafting and classical music.Joyce Cacho is an experienced executive and director, and currently serves as Board Chair of Sistema.bio.__This podcast is sponsored by the American College of Governance Counsel.__ You can follow Evan on social media at:Twitter: @evanepsteinLinkedIn: https://www.linkedin.com/in/epsteinevan/ Substack: https://evanepstein.substack.com/__You can join as a Patron of the Boardroom Governance Podcast at:Patreon: patreon.com/BoardroomGovernancePod__Music/Soundtrack (found via Free Music Archive): Seeing The Future by Dexter Britain is licensed under a Attribution-Noncommercial-Share Alike 3.0 United States License You can follow Evan on social media at:X: @evanepsteinLinkedIn: https://www.linkedin.com/in/epsteinevan/ Substack: https://evanepstein.substack.com/__To support this podcast you can join as a subscriber of the Boardroom Governance Newsletter at https://evanepstein.substack.com/__Music/Soundtrack (found via Free Music Archive): Seeing The Future by Dexter Britain is licensed under a Attribution-Noncommercial-Share Alike 3.0 United States License

Suzanne Brown, executive leader and member of the NYSE Board Diversity Initiative, discusses key ESG initiatives, international directors, board dynamics, and the evolution of board diversity. They also touch on the backlash against ESG and DEI efforts, the average age of directors, and the current state of capital markets.

0:00 -- Intro.2:02 -- Start of interview.3:02 -- Victor's "origin story" 5:30 -- Joining Stanford University's Board of Trustees, and later the board of Popeye’s Louisiana Kitchen (NASDAQ: PLKI).9:06 -- His current position as Managing Director and Practice Leader, Consumer and Retail at Diversified Search Group, working primarily in the Board of Directors practice. He is the leader of the firm’s Dallas-Fort Worth office.9:53 -- Differences between executive and board searches. "We find people for jobs, not jobs for people"13:01 -- The role of data and automation in the search business.14:48 -- Distinctions between board searches for private and public company boards.17:27 -- Economics of search firms on executive and board placements.20:15 -- On working with Nomination and Governance Committees and the evolution of Board Matrices. On overboarding. On board expertise: cybersecurity, digital, legal, international, etc.28:38 -- Boardroom trends in 2023: Flexibility on C-suite experience, broader demand for specialized expertise (cyber, AI, ESG, etc). On the ESG and DEI backlash. "Companies are looking for supply chain expertise." On geopolitics in the boardroom.32:36 -- What are boards looking for in new directors. "They are looking for really strong core values: integrity, ethics, leadership and judgment." How to build your brand as a director. Functional expertise. "Search firms probably fill 30-40% of open board seats, that tells you that 60-70% are done the old-fashioned way (ie. by other members of the board)."37:35 -- Recommended resources for board members or aspiring board members. Latino Corporate Director Association (LCDA).39:30 -- On boardroom diversity and the state of Latin@s on corporate boards.42:17 -- Measuring effectiveness of board members.44:40 -- Books that have greatly influenced his life: Built to Last, by Jim Collins and Jerry Porras (1994).The Haj, by Leon Uris (1984)The Empire of the Summer Moon, by S. C. Gwynne (2010)46:17 -- His mentors, and what he learned from them: Art Gonzalez (president of the first bank that he worked at)Jerry Porras (Latino Action Business Network)48:35 -- Quotes he thinks of often or lives his life by: "Keep your friends close, and keep your enemies closer." 49:07 -- An unusual habit or an absurd thing that he loves.49:43 -- The living person he most admires: Pope Francis.Victor Arias is a Managing Director and Practice Leader, Consumer and Retail at Diversified Search Group, working primarily in the Board of Directors practice. He is the leader of the firm’s Dallas-Fort Worth office.__ You can follow Evan on social media at:Twitter: @evanepsteinLinkedIn: https://www.linkedin.com/in/epsteinevan/ Substack: https://evanepstein.substack.com/__You can join as a Patron of the Boardroom Governance Podcast at:Patreon: patreon.com/BoardroomGovernancePod__Music/Soundtrack (found via Free Music Archive): Seeing The Future by Dexter Britain is licensed under a Attribution-Noncommercial-Share Alike 3.0 United States License You can follow Evan on social media at:X: @evanepsteinLinkedIn: https://www.linkedin.com/in/epsteinevan/ Substack: https://evanepstein.substack.com/__To support this podcast you can join as a subscriber of the Boardroom Governance Newsletter at https://evanepstein.substack.com/__Music/Soundtrack (found via Free Music Archive): Seeing The Future by Dexter Britain is licensed under a Attribution-Noncommercial-Share Alike 3.0 United States License

0:00 -- Intro. *reference to our episodes reviewing Succession Season 1: E98 of this podcast (May 22, 2023) and Season 2: E102 (June 26, 2023).2:00 -- Start of interview. 3:50 -- About Sean Berkowitz and the Enron Case: prosecuting Ken Lay and Jeff Skilling (2006).7:05 -- On whistleblowers and avoiding retaliation. "Whistleblowers are one of the trickiest things you can deal with as counsel representing a corporation."11:05 --  Kendall's whistleblower scenario. Conducting internal investigations.15:02 -- On government relations and political interference with federal investigations. "It essentially doesn't work." "The discretion and judgment of a line prosecutor is always going to rule the day."17:22 -- Cooperating with Federal investigations. 21:12 -- The role of the board of a public company under federal investigation.22:52 -- On "shifting to legals", internal investigations by outside counsel, and creating a special committee of the board to remove conflicts of interest.29:16 -- Explaining joint defense agreements. The Archer-Daniels-Midland case (reference to movie The Informant).33:34 -- On the link between good governance and how shareholders value the company, including activists (Josh Aronson scene) and the proxy battle.43:36 -- On sexual harassment complaints (situation between Roman and Gerri involving explicit pictures). The factor of CEO succession and how the board should conduct their selection.50:30 -- On potential GoJo red flags and need for due diligence, including leadership assessment and kicking the tires on their numbers. What could/should board be doing in this situation?55:33 -- Dealing with moguls and founders like Lukas Matsson. "I think that one of the elements at the heart of corporate governance is personal integrity and character... and Matsson is not a good guy."59:49 -- Family governance within public companies. "Ultimately it all comes down to the documents: who can vote what, who has control, who has the ability in a tie break, etc." The problem with "rubber stamping boards." Question: "would any of us invest in a company run by Kendall or Roman?"01:06:11 -- Kendall's Unreliable Testimony to the DOJ ("Queen for a day" opportunity) and Preparation Failure.Kate O'Leary is the Global Executive Litigation Counsel at General Electric Company.Sean Berkowitz is a Partner at Latham & Watkins and the Global Chair of the Complex Commercial Litigation Practice. He represents clients in complex litigation and regulatory investigations.__ You can follow Evan on social media at:Twitter: @evanepsteinLinkedIn: https://www.linkedin.com/in/epsteinevan/ Substack: https://evanepstein.substack.com/__Music/Soundtrack (found via Free Music Archive): Seeing The Future by Dexter Britain is licensed under a Attribution-Noncommercial-Share Alike 3.0 United States License You can follow Evan on social media at:X: @evanepsteinLinkedIn: https://www.linkedin.com/in/epsteinevan/ Substack: https://evanepstein.substack.com/__To support this podcast you can join as a subscriber of the Boardroom Governance Newsletter at https://evanepstein.substack.com/__Music/Soundtrack (found via Free Music Archive): Seeing The Future by Dexter Britain is licensed under a Attribution-Noncommercial-Share Alike 3.0 United States License