Being asked to join the board of a portfolio company may initially seem an honor, but PE investment professionals and operating partners need to go into the role with their eyes open. Regulatory scrutiny of PE-backed firms is increasing at the same time as LPs are demanding greater transparency on non-financial matters as well as more participation in governance matters at the portfolio level.
In this note, we get the perspectives of Charlie Chipchase, Head of Petra’s Private Equity ESG Advisory Services Group, Nate Lankford, Head of Miller & Chevalier’s Business & Human Rights Practice, and Sandra Hanna, Head of Miller & Chevalier’s Securities Enforcement Practice, who set out what they see as some of the key practical pointers PE executives should keep in mind as they take up board positions on their firm’s portfolio companies.
- Know your duties. Understand and fulfill your legal and fiduciary duties. This includes making decisions based on careful analysis and considering long-term value creation. The approach may differ depending on geography, and whether your company is public or private, but any new board member should see this as an absolute must. Also, appreciate that laws and regulations change, and what may have been the norm the last time you sat on a board may no longer be valid. Read the company’s by-laws and any other relevant document (e.g., shareholder agreement) and appreciate how they work in practice. Get a lawyer or current board member to walk you through key points of the legal plumbing so you understand, for example, what constitutes a shareholder or board decision and where conflicts of interest are likely to arise (more on conflicts below).
- Understand the macro…but dominate the micro. Be attuned to the macro/market risks and opportunities your company faces but look to take ownership (often by committee participation or otherwise) on a certain governance aspect and work with the management team to ensure you know what they know. For example, you should have a 360° understanding of the company’s financial health, tax strategy, and management’s roles/compensation, be apprised of upcoming governmental/regulator interactions, debt capacity, and threatened or actual litigation. Don’t blame your lack of understanding in some of these areas on your other responsibilities at GP level. Make the time.
- Turn up and engage. Turn up to each board meeting on time and be prepared. Spend time with management and key employees. Don’t take on more board portfolio seats than you can realistically handle. Don’t be the silent board member – challenge where necessary. An effective board will have open and respectful conversations to get the best results. The boards that develop a culture of healthy challenge among board members and the senior management team make much better decisions as they test assumptions and the information presented to them.
- Prudent conflict management. As a board member your PE firm has nominated, your role is critical in providing oversight, strategic guidance, and risk management and contributing to the success of the company and, hopefully, better returns for LPs. It can, however, be difficult to compartmentalize your role as a representative of your firm (acting as a steward for your LP’s capital) and your role as a board director (who may owe duties to more than just the company’s ultimate shareholders). Issues start to arise when the interests of the fund and portfolio company diverge (e.g., on material M&A, insolvencies, or litigation). Risks are mitigated here not simply by calling the lawyer but also by a board member understanding how and when conflicts may arise and putting in place systems or personnel to address them early (e.g., independent board members, special committees to evaluate potential transactions, independent valuations, etc.).
- Risk management and compliance. In understanding your duties, it is most important from an ESG perspective to recognize that you are personally responsible for ensuring that the company has an effective compliance program to address applicable laws, regulations, and industry standards. In practical terms, this means you must understand your company’s risk profile – for example, whether you face significant risks of bribery, money laundering, or adverse impacts on human rights – and the key “hallmarks” of an effective compliance program, such as an appropriate management culture/’tone from the top’, written policies and procedures, periodic assessment of risks, training, among other tried and true best practices. To achieve this understanding, you should require company management to regularly report on processes to address key risks and related metrics, and ‘pressure test’ management’s implementation of the compliance program. For example, you may ask how root causes of specific issues are being addressed, how the effectiveness of program components is measured, and whether resources are sufficient to support compliance program components. You may also test crisis management systems – for example, how would the company deal with an environmental issue or a cyber/data leak? Most importantly, however, make sure that you challenge management on its ESG assertions, and that you have a reasonable basis to believe that disclosures to stakeholders about ESG matters are as accurate as the financial statements.
- Understand and communicate with key stakeholders. Pay careful attention to the “S” in “ESG.” Make sure management is committed to a culture of integrity and responds promptly and appropriately to violations of the code of conduct. Consider requesting time with HR professionals and learning more about the trends they are seeing in worker morale and the kinds of complaints they are receiving to better understand ‘the buzz’ at all levels of the organization.
- Don’t neglect the power of ESG as a potential value creation tool. Consider and ensure ESG considerations are integrated into the company’s strategy, risk management, and decision-making processes. Depending on your company’s industry, strategy, fund, location and size, orient yourself of the ESG risks and opportunities, appreciate what’s material to the company, and ensure the company’s policies and initiatives are in step with your firm’s ESG objectives/KPIs. Look for those “quick [ESG] wins” that can be achieved in the first 100 days of ownership as well as the more medium/long-term goals. Ensure that external reporting is handled diligently and is defensible and accurate.
- Board reviews. Well managed boards carry out a self-assessment at least annually and have it externally facilitated every three years. It’s a great way of reminding everyone of their roles, reflecting on what’s going well and what’s not, and agreeing on the actions needed for further board improvement.
- Be proactive on succession. Having fixed terms of office and regular board turnover aids better decision-making, avoids groupthink, and introduces fresh thinking and new opinions. Include deal team VPs and associates (and GCs/CCOs when necessary) in all board meetings so they are ready to step up as they make their way through the firm.
- Personal liability. Finally, understand your personal liabilities and when the board may need a separate legal advisor (e.g., in a restructuring scenario or for investigations involving senior management) and, as obvious as this may sound, lock in D&O cover from day one with appropriate run-off cover.
Regulatory bodies, industry initiatives, and investor pressure have played a significant role in driving the adoption of strong governance practices within ESG frameworks. Laws requiring due diligence and public reporting on ESG topics are proliferating globally, and many stock exchanges and financial institutions have also introduced ESG reporting requirements and guidelines to encourage companies to disclose relevant information and improve governance standards.
Overall, governance in ESG focuses on ensuring responsible, ethical, and sustainable practices within organizations, integrating environmental and social considerations into decision-making processes, and fostering transparency and accountability to stakeholders through accurate disclosures.
You will find no statues of boards in any city, but on the premise that effective boards are often greater than the sum of their parts, some basic tenets can help you be a very effective board member and help drive better decisions and ultimately better risk-adjusted returns.
About the Firms
Founded in 1920, Miller & Chevalier is a Washington, DC law firm with a global perspective and leading practices in Tax, International Law, Litigation, ERISA, White Collar Defense and Internal Investigations, Government Contracts, and Government Affairs. Miller & Chevalier is a top-ranked firm sharply focused on targeted areas that interact with the federal government. A significant number of firm lawyers have held senior positions in the U.S. government and have written many of the regulations they currently help clients navigate. For more information, please visit: www.millerchevalier.com.
Petra Funds Group is a leading global provider of fund administration, middle and back-office support, regulatory compliance, and ESG services for private equity and private debt funds. Founded by private equity executives in 2021, Petra delivers tailored services to our valued client base from offices in the U.S. and Europe. Our coordinated fund administration solution and best-in-class technology enable our clients to scale their operations, reduce costs, and focus on their core competencies. For more information, please visit: www.petrafundsgroup.com.
