Yearly Archives: 2008

Landed Interests and Financial Underdevelopment in the United States

This post is from Raghuram G. Rajan of the University of Chicago.

Recently, in the Law, Economics, and Organization Seminar here at the Law School, I presented my paper, co-authored with Rodney Ramcharan, entitled Landed Interests and Financial Underdevelopment in the United States.

In our paper, we explore how the structure of banking across counties in the United States was shaped in the early part of the twentieth century by local landowners, who wanted to limit free access to credit. We focus on banks because they were, and in many areas, still are, the most important source of local finance. Likewise, we focus on the influence of landowners because agriculture was still a key sector at that time in the U.S. economy, and agricultural interests were a powerful political constituency. From a research design standpoint, this focus is also appropriate because we believe we can isolate exogenous factors that determined the nature of land holdings. Specifically, counties varied in the extent to which land holdings were concentrated or widely distributed. In part, the distribution of land holdings was driven by rainfall, with large-scale plantation-like agriculture being favored in areas with high rainfall, and small scale farming in areas with moderate rainfall. Therefore, in some counties, a few large farmers held much of the land, while in other counties land was widely dispersed among many smaller farmers. Large, wealthier landowners had reasons to restrict access to credit by limiting the spread of banks, and had the economic and political power to implement those interests.

We find that landed interests appeared to be an important influence in constraining bank competition and thus limiting access to finance. We provide a variety of tests showing that their impact was most pronounced in situations where they had the greatest incentive and ability to exert influence. We also argue that our results cannot be easily explained as resulting from the supply of banking services responding to the underlying demand. Finally, we show these constraints on financial development persisted long after the interest groups driving them faded away.

While our paper is on financial development, it has broader implications. A recent trend in explaining the underdevelopment of nations has been to attribute it to the historical weakness in their political institutions such as democracy and constitutional checks-and-balances. While U.S. political institutions in the 1920s were far from perfect, they were also far from the coercive political structures that are typically held responsible for persistent underdevelopment. Yet even in the United States, we find large variations in the development of enabling economic institutions such as banking between areas that had different constituencies but were under the same political structures. The significant, and potentially adverse, influence of constituencies even in such environments suggests that fixing political institutions alone cannot be a panacea for the problem of underdevelopment.

The full paper is available for download here.

Corporate Governance, Promises Made, Promises Broken

This post is from Jonathan R. Macey of Yale Law School.

My forthcoming book, Corporate Governance, Promises Made, Promises Broken, presents my views about what corporate governance is all about and what sorts of corporate governance institutions and mechanisms work best. Corporate governance consists of a farrago of legal and economic devices that induce the people in charge of companies with publicly owned and traded stock to keep the promises they make to investors. This book develops three original insights about corporate governance. These insights can be succinctly summarized:

1. Corporate Governance is about promises. I believe that it is more accurate to characterize corporate governance as being about promises than it is to characterize corporate governance as being about contracts. One reason I believe this is because the relationship between public shareholders and the corporations is so attenuated than it is misleading to characterize their relationship with the corporation as contractual in nature, rather than promissory. Shareholders have almost no contractual rights and virtually no contractual rights to corporate cash flows. Shareholders’ investments are based on trust. This trust, in turn is based on the belief that the managers who run corporations will keep the promises that they make to investors. Another reason why I believe that corporate governance is about promise is because the idea of promise captures the primordial fact that trust rather than reliance on the prospect of enforcement is the focal point of a successful system of corporate governance.

2. Since corporate governance is about promise, then it stands to reason that the various institutions and mechanisms of corporate governance can be evaluated on the basis of how well they facilitate the keeping of promises by corporate managers. The bulk of this book analyzes various devices and mechanisms of corporate governance for the purpose of determining which ones work well and which do not work so well.

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Earnings Restatements, Changes in CEO Compensation, and Firm Performance

This post comes to us from Qiang Cheng at the University of Wisconsin-Madison and David B. Farber at the Trulaske College of Business at the University of Missouri-Columbia.

In our forthcoming Accounting Review paper entitled Earnings Restatements, Changes in CEO Compensation, and Firm Performance, we provide insights into the design and efficacy of chief executive officer (CEO) compensation contracts following an earnings restatement.

Using a sample of 289 restatements and the year prior to restatement announcement as the benchmark year, we find that while total CEO compensation does not significantly change by the second year after the restatement announcement, there is a significant shift from option-based compensation to salary over this period. In univariate tests, we find that the proportion of the value of option grants to total compensation declined by 5.6 percentage points for the restatement firms, while control firms experienced an increase of 2.6 percentage points in this proportion over the same period. The analyses indicate that the number of option grants also declines for restatement firms compared to control firms. The reduction in the use of option grants for restatement firms holds after we control for the level of stock and option holdings as well as other determinants of option-based compensation, such as firm size, growth opportunities, leverage, idiosyncratic risk, R&D intensity, stock returns, cash compensation, and industry and year fixed effects. Because about half of the restatement firms experienced CEO turnover after restatements, we also investigate the change in option grants separately for extant and new CEOs. We find that our results hold for both extant and new CEOs.

If the reduction in option-based compensation is a result of unwarranted negative public perception of option usage, we would expect a decrease in firm performance as firms deviate from optimal contracting. However, if restatements result from too high a level of incentive compensation and the reduction in option compensation after the restatement better aligns managerial incentives with those of shareholders, we would expect to observe improved firm performance. Overall, our results imply that economic benefits accrue to restatement firms that reduce their CEOs’ option-based compensation, indicating that the reduction in option grants helps adjust managers’ equity incentives toward optimal levels. A natural question that follows is if reducing option usage is associated with improved firm performance, why is it that all restatement firms do not do so? To help answer this question, we conduct a within-sample analysis. We find that the likelihood of a reduction in options usage is positively related to the level of option grants prior to the restatement and in some specifications, this likelihood is higher for income-decreasing restatements.

The full paper is available for download here.

A Multi-disciplinary Perspective of the Emergency Economic Stabilization Act of 2008

This post is from Margaret E. Tahyar of Davis Polk & Wardwell LLP.

In this memorandum, a team composed of experts in my firm’s financial institutions, corporate governance, real estate, capital markets, executive compensation, hedge fund, private equity, asset management, white collar defense and litigation departments discusses our collective view on the likely interpretation of the Emergency Economic Stabilization Act’s most important provisions, the key ambiguities and questions that will have to be resolved by the Treasury Secretary, and the policy issues that will shape not only the implementation of the Act, but also the future of the US financial regulatory system.

The memorandum is available here.

Uncle Sam should claw back Wall Street bonuses

Editor’s Note: For a related piece published in the San Francisco Chronicle by Professor Jesse Fried, the author of this post, see here.

Warren Buffett aptly called the credit-related derivatives invented, marketed, and held by Wall Street firms “financial weapons of mass destruction.” These weapons have now gone off, putting the economy at risk. The Bush administration has cobbled together a $700 billion taxpayer-financed plan to bail out Wall Street firms and, it is hoped, avoid a larger economic disaster.

Unfortunately, While Wall Street executives have already pocketed large profits from the reckless business decisions that made the bailout necessary in the first place. Over the last two years, Wall Street financiers took home more than $60 billion in bonuses, much of it in cash. Lehman Bros. alone shelled out almost $6 billion in bonuses in 2007; it recently filed for bankruptcy.

If the government ends up losing money on the bailout, it should make a serious effort to “claw back” at least part of the bonuses paid to Wall Street executives before the meltdown. The cost of cleaning up this mess must not fall entirely on taxpayers’ shoulders; those who profited from the derivatives casino should chip in directly. Clawing back executives’ bonus pay will also make future decision-makers think twice before taking similar financial gambles, reducing the likelihood that another generation of Americans will be asked to bail out Wall Street.

The challenge would be finding legal authority to recover pre-meltdown bonuses. If a bailed-out firm were to file for bankruptcy, several provisions of the Bankruptcy Code could be used to recover pre-bankruptcy bonus payments to its executives. But if the rescue plan is successful, most of these bailed-out firms won’t be forced to file for bankruptcy. Is there a way to attack the bonuses paid by the firms that, thanks to government assistance, are able to steer clear of bankruptcy?

One possible source of authority is New York’s “fraudulent conveyance” statute, which applies to all firms in that state, including those that have not filed for bankruptcy. The statute gives creditors the right to recover a payment to an insider if, for example, the paying firm (1) did not receive fair consideration for the payment and (2) at the time had unreasonably small capital for its business operations. Some courts have held that managerial services do not constitute fair consideration for purposes of this type of statute. The statute may thus permit the government, to the extent it is considered an unpaid creditor of a bailed-out firm, to recover a bonus payment to one of that firm’s executives.

Will the federal government be able to recoup bonuses paid to Wall Street executives before the meltdown? We won’t know for sure until the government litigates these cases. But if the government loses money on the bailout, bringing these cases is the least the government can do for taxpayers – both those on the hook for the $700 billion rescue plan and those who may be asked to pay for a future bailout.

Analysis of the Emergency Economic Stabilization Act of 2008

This post is from John F. Olson of Gibson, Dunn & Crutcher LLP.

My firm is pleased to provide a section-by-section analysis of the Emergency Economic Stabilization Act of 2008 as passed by the Senate, by a vote of 74-25, on October 2, 2008. The section-by-section analysis includes commentary from experts on Gibson, Dunn & Crutcher LLP’s Financial Markets Crisis Group. We hope you find it useful as you work through the challenges and opportunities posed by the market crisis and the government’s response.

On a procedural note, the Senate used H.R. 1424, which was a resolution to amend the Employment Retirement Security Act to include mental health parity provisions, as a vehicle to pass the Emergency Economic Stabilization Act. As passed by the Senate, the bill also included energy and tax extender provisions. We have not included those provisions in this analysis.

The analysis is available here.

Leo Strine’s Marvelous Adventures

Editor’s Note: The article below, just published in The Deal, came to us from its author David Marcus.

Leo E. Strine Jr. doesn’t have any time to waste as he settles in behind the lectern for his first mergers and acquisitions class of the year at Harvard Law School. He’s tackling three classic Delaware cases today. Most law school professors excerpt cases. Strine does not. “If a judge thought something was important enough to put in the opinion,” he tells the class, “you might want to entertain the notion that it’s worth thinking about why it’s there.”

The first case treats T. Boone Pickens’ 1985 hostile bid for Unocal Corp. Strine ranges far beyond the opinion to explore the legal and business context in which then-Delaware Supreme Court Chief Justice Andrew G.T. Moore II wrote. Strine notes that Unocal’s board met for eight or nine hours to consider Pickens’ offer — a response to Smith v. Van Gorkom, a case decided a few months before Unocal in which Moore’s court found board members personally liable for not thoroughly considering a bid.

“They definitely learned the lesson of Van Gorkom. They were not going to be accused of a lack of process,” Strine tells the class of 75. Unocal’s board answered Pickens’ offer by making one of its own to all shareholders except Pickens. Delaware’s Court of Chancery enjoined the Unocal bid, but Moore reversed.

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Panel Discussion on Transactional Practice

The Harvard Law School Program on Corporate Governance is pleased to announce the availability of the video of its event on transactional practice. The event, which was held earlier this month, is the second of the Program’s series entitled Introduction to Corporate Practice. The series’ aim is to expose students to leading practitioners and their perspective on corporate practice—What do they enjoy about their jobs? What issues do they deal with? And what does it take to succeed in their field? The videos are made public as a resource for law students and young lawyers everywhere who are considering corporate practice.

The three panelists at the transactional practice event were:

  • Eileen T. Nugent, co-head of the Private Equity group at Skadden Arps.
  • Matthew J. Gardella, co-chair of the Public Offerings & Public Company Counseling practice group at Edwards Angell Palmer & Dodge LLP.
  • Christopher L. Mann, a partner in the New York office of Sullivan & Cromwell.

Each member of the panel gave introductory remarks, followed by Q&A. One of the main topics of discussion was how the panelists came to find and love transactional practice. Chris Mann said he had always wanted to be involved in business deals, and got off to a very quick start when he was sent to Papua New Guinea for a finance project three weeks into his job at Sullivan & Cromwell. Project finance is still one of his major areas of practice today. By contrast, Matt Gardella admitted that he had originally wanted to become a defense attorney. He eventually moved into securities work because he valued the long-term client relationship, in which the attorney can take a proactive advisory role. Eileen Nugent discovered her passion for deals as an in-house counsel, and only later moved to Skadden Arps to pursue it. All three emphasized the business orientation of transactional lawyering. The panel also offered their perspectives on career planning issues, including working for law firms or other players in the transactional world, and the types of characteristics they felt were central to the success of associates.

A video of the panel discussion is available for download here. (video no longer available)

Our Representation on the Most-Influential-Corporate-Governance-Players List

Directorship magazine issued its second annual Directorship 100 list – a list of the 100 “most influential people on corporate governance.” The list includes such well-known figures as Chairman Barney Frank, Chairman Ben Bernanke, Treasury Secretary Henry Paulson, SEC Chair Christopher Cox, Goldman Sachs CEO Lloyd Blankfein, activist investor Carl Ichan, and Blackstone CEO Steve Schwarzman. The blog is pleased to announce the significant representation that members of the Harvard Program on Corporate Governance have on the Directorship 100 list:

Lucian Bebchuk, the program’s director, was selected in the “professors” category. Bebchuk was also included in the Directorship 100 list last year, when the magazine first issued this list.

• Vice-Chancellor Leo Strine, Jr., a senior fellow of the program, was selected in the “regulators and rule makers” category.

• Finally, the Directorship magazine, in recognition of the success and influence of the Harvard Law School Corporate Governance blog, included in its list the two current co-editors of the blog, Jim Naughton and myself, in “the media” category. Others listed in this category are Alan Murray and Joann Lublin of the Wall Street Journal, Andrew Ross Sorkin of the New York Times, Fox news CEO Roger Ailes, Maria Bartiromo of CNBC, and Jim Cramer of TheStreet dot com. This selection would not have been possible, of course, but for the many contributors posting their insights and work on the blog and for the loyalty of our readers, and we would like to express our thanks to them all.

The Directorship article, which includes the full Directorship 100 list, as well as a description of the methodology used and substantial effort invested in putting together the list, is available here.

To Guide or Not to Guide? Causes and Consequences of Stopping Quarterly Earnings Guidance

This post is from Baruch Lev of NYU Stern School of Business.

In “To Guide or Not to Guide? Causes and Consequences of Stopping Quarterly Earnings Guidance”, which I co-wrote with Joel F. Houston and Jennifer W. Tucker, and which was recently accepted for publication in Contemporary Accounting Research, we investigate the importance of quarterly earnings guidance. Quarterly earnings guidance—managers’ public forecasts of forthcoming earnings—is widespread yet highly controversial. Arguments for ending the practice of guidance are made by purists, who claim that managers should tend to their business and leave securities valuation and the underlying forecasts of future performance to investors and analysts, and by pragmatists, lawyers in particular, who caution managers that guidance increases litigation exposure. Regulators and commentators are often concerned that a previously issued forecast will motivate managers to meet the guidance even if doing so would require costly changes in real activities, such as cutting capital expenditures or R&D, and sometimes induce them to manage earnings toward the forecast. On the pro-guidance side, managers often claim that the practice is necessary to keep analysts’ earnings forecasts—issued with or without corporate guidance—within a reasonable range to avoid large earnings surprises and the consequent high stock price volatility and investors’ heightened risk perceptions.

We empirically examine in this study a sample of 222 U.S. firms that ceased to provide quarterly earnings guidance during 2002 through the first quarter of 2005, after having routinely done so. Only a few of these “stoppers” publicly announced and rationalized their decision, whereas the majority just ceased to provide guidance. We first examine the determinants of the stopping decision with particular reference to the pro and con arguments made by challengers and supporters of the practice. Although managers often cite reducing short-termism as the motive for stopping guidance, an unstated reason could be poor performance and repeated consensus misses. We then examine the post-stoppage changes in the stoppers’ long-term investments, in their complementary disclosures, and in their information environment. Using a control sample of 676 guidance “maintainers,” along with the 222 stoppers, we find that poor performance is the main reason for guidance cessation. Our stoppers are characterized by (1) a decline in earnings before stopping, (2) a poor record of meeting or beating analyst consensus forecast, and (3) a deterioration of anticipated earnings. Additionally, we document that guidance cessation is associated with (1) a change in top management, likely ushering in new management philosophy, (2) a relatively low frequency of guidance by industry peers, and (3) past as well as anticipated difficulties in predicting earnings. In addition, we do not find that stoppers enhance investment in capital expenditure and research and development after guidance cessation. Contrary to the claim that firms would provide more alternative, forward-looking disclosures in lieu of the guidance, we find that such disclosures are curtailed. We also find a deterioration in the information environment of guidance stoppers in the form of increased analyst forecast errors and forecast dispersion and a decrease in analyst coverage. Taken together, our evidence indicates that guidance stoppers are primarily troubled firms and stopping guidance does not benefit either the stoppers or their investors.

The full paper is available for download here.

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