Corporate Governance

Shearman & Sterling LLP ESG and Incentive Compensation Plans: Are Investors Satisfied? | 30 EVIDENCE OF DISSATISFACTION While the number of issuers incorporating ESG metrics into their incentive compensation programs is steadily increasing, so too are expressions of dissatisfaction with the quality of the related proxy disclosures. The ESG metrics companies link to compensation often are criticized as being overly broad, vague and qualitative, making it challenging to assess how and why the metrics were chosen and weighted. Consistent with that criticism, our survey data shows that most issuers include ESG metrics as part of a larger performance metric, rather than as an individual metric. Taking "diversity" as an example, this year 43 issuers specifically reference a focus on this metric. However, only 15 of them included it as an individual metric, and only seven of them gave an insight on the methodology used to assess whether the diversity metric had been satisfied. Investors have begun to voice their dissatisfaction with the level and quality of ESG disclosures in respect of equity incentive plans. For example, the RBC Global Asset Management 2021 Responsible Investment Survey showed that 72% of institutional investors in the U.S., Canada, Europe and Asia apply ESG principles as part of their investment approach and decision making and 84% believe that ESG integrated portfolios are likely to perform as well or better than non-ESG integrated investments. Notwithstanding this focus on ESG, only 37% of the surveyed investors stated that they were somewhat satisfied or very satisfied with the current amount of ESG related disclosures and a slightly smaller percentage said they were satisfied with the quality of the disclosures. Further, BlackRock Investment Stewardship stated in its 2022 Global Principles that, although it does not have a position on the use of ESG-related criteria in incentive programs, when used, those metrics should be as rigorous as other targets. Blackrock further notes that robust disclosure is essential for investors and that it will "advocate for continued improvement in companies' reporting." Further, in January of 2022, the Securities and Exchange Commission (SEC) reopened the comment period for its proposed rule to implement the pay vs. performance disclosure requirements mandated by Section 953(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The rule, which was finalized in August of 2022, requires proxy disclosure of how executive compensation paid by an issuer relates to the financial performance of the issuer. As initially proposed by the SEC in 2015, the proposed rule required tabular disclosure of amounts actually paid in the relevant year, as well as the cumulative and absolute total shareholder return (TSR) of the issuer over the same period. In its January 2022 release, however, the SEC asked whether additional factors beyond TSR should be disclosed, including a "Company-Selected Measure," which would be the issuer's assessment of the most important measure used to determine compensation. In addition, issuers would be required to disclose a list of up to the five most important measures used by the issuer to link compensation to performance. 3 The SEC also asked how it should contemplate developments with respect to ESG related metrics in formulating its final rule. A number of commentators used the proposal as an opportunity to criticize the quality of issuer disclosures with respect to ESG-linked compensation. For example, Dimensional Fund Advisors LP stated that the ESG metrics are "ill-defined or inherently difficult to quantify" and asked for "clear disclosure" of how each metric is utilized and why it is aligned with shareholder interests in the event ESG is identified as an important measure used to determination compensation. The overriding sentiment, however, was articulated by commentators such as Loring, Wolcott & Coolidge Trust, LLC and Principles for Responsible Investment, which noted that vague ESG factors may inappropriately boost executive pay by allowing for ESG targets that are too easily achievable. The focus on ESG disclosures cited by the commentators above also was echoed by SEC Commissioner Caroline A. Crenshaw, who, in her statement accompanying the release, cited to her previous comment that "without reliable and consistent disclosures about those ESG targets, I wonder whether investors and Boards have the tools to accurately assess if such targets have been met and if that alignment between executive pay and ESG targets has been achieved." Similarly, Commissioner Allison Herren Lee asked commentators to inform the SEC of how the "increased flexibility" of the release may "facilitate investor analysis of the use of [ESG] metrics and targets in compensation plans." 3 The final rule requires disclosure of the company's net income and a company-selected financial performance measure. In addition, the company must list at least three, and up to seven, financial measures used to link compensation to performance.

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