Yearly Archives: 2010

Oligopoly, Disclosure, and Earnings Management

This post comes to us from Mark Bagnoli, Professor of Accounting at Purdue University, and Susan Watts, Professor of Accounting at Purdue University.

In our paper, Oligopoly, Disclosure, and Earnings Management, which is forthcoming in The Accounting Review, we theoretically examine whether firms bias their disclosures (manage earnings) to gain a competitive advantage in their product market. Our specific motivation comes from the claims of C. Michael Armstrong who was the CEO of AT&T from 1997 to 2002. In statements made by Armstrong, he argues that accounting fraud at Worldcom was the cause of AT&T’s perceived strategic failures, its inability to compete with Worldcom and, in the end, the decision to break up the company. He specifically suggests that Worldcom’s fraudulently reported revenues, margins and costs drove AT&T’s layoffs, cost cutting and a very unprofitable price war that left AT&T unable to service the debt he incurred to revive the company. This view is supported by William Esrey who was Sprint’s CEO during that time. We interpret Armstrong and Esrey’s argument as suggesting that a rival’s earnings management affected competition in the product market, led to a misevaluation of their relative performance and caused dramatic, potentially non-optimal changes in their business strategy.

READ MORE »

Court Rejects Insurers’ Attempt to Avoid D&O Coverage

Marc Wolinsky is a member of the Litigation Department at Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell Lipton firm memorandum by Mr. Wolinsky, Martin J.E. Arms and Olivia A. Maginley. The post relates to the opinion in the case of Pendergest-Holt v. Lloyd’s of London, et al., which is available here.

In a recent opinion, the Fifth Circuit upheld a decision that prohibited D&O insurers from refusing to pay for the defense of a number of executives charged with civil and criminal wrongdoing by the SEC and the Department of Justice. Pendergest-Holt v. Lloyd’s of London, et al., No. 10-20069, 2010 WL 909090 (5th Cir. Mar. 15, 2010). The ruling has implications for insurers and insureds alike, as it will affect the ability of insurers to stop advancement of defense costs and may result in insurers changing the language of their policies.

The case arises out of the widely-reported charges that have been leveled against several executives of Stanford Financial Group. In order to fund their defense, the executives sought coverage for defense costs under two D&O policies. Both policies had an exclusion where the claims arose “in connection with any act or acts (or alleged act or acts) of Money Laundering.” The policies provided, however, that the insurers would only pay defense costs “until such time that it [was] determined that the alleged act or alleged acts did in fact occur.”

READ MORE »

Whistle-Blowing: Target Firm Characteristics and Economic Consequences

This post comes to us from Robert Bowen, Professor of Accounting at the University of Washington, Andrew Call, Assistant Professor of Accounting at the University of Georgia, and Shiva Rajgopal, Professor of Accounting at the University of Washington.

In our paper, Whistle-Blowing: Target Firm Characteristics and Economic Consequences, which is forthcoming in The Accounting Review, we document the first systematic evidence on the characteristics and economic consequences of firms subject to employee allegations of corporate financial misdeeds. Whistle-blowing has received considerable attention in recent years after (1) whistleblowers were responsible, in part, for revealing the accounting scandals at Enron and WorldCom, and (2) provisions in SOX were enacted to protect employee whistle-blowers. Still, little is known about the nature of firms that are subject to whistle-blowing and whether such allegations are economically significant events with meaningful consequences for the targeted firms. Unlike other research to date, our focus is on (1) characteristics of firms targeted by employee whistleblowers, (2) the economic consequences of such whistle-blowing revelations and (3) firm responses to such allegations via subsequent governance changes.

READ MORE »

Supreme Court Clarifies Standards for Judicial Review of Mutual Fund Fees

Editor’s Note: Eduardo Gallardo is a partner focusing on mergers and acquisitions at Gibson, Dunn & Crutcher LLP. This post is based on a Gibson Dunn Alert by Mark Perry, who co-authored the amicus brief for the Independent Directors Council in Jones v. Harris. The decision of the Supreme Court in the case was made available in this post.

On March 30, 2010, the Supreme Court issued its decision in Jones v. Harris Associates L.P., No. 08-586.  The Court construed Section 36(b) of the Investment Company Act of 1940, which states that investment advisers to mutual funds are deemed to have a fiduciary duty with respect to the receipt of compensation for services and provides a private cause of action for breach of that duty.

The Supreme Court in Jones held that “to face liability under § 36(b), an investment adviser must charge a fee that is so disproportionately large that it bears no reasonable relationship to the services rendered and could not have been the product of arm’s length bargaining.”  Slip op. 9.

READ MORE »

Federal Intervention in Executive Pay

Joseph Bachelder is founder and senior partner of the Bachelder Law Firm. This post is based on an article by Mr. Bachelder that first appeared in the New York Law Journal.

For approximately 75 years (at least), the federal government has intervened in executive pay—in both direct and indirect ways. Two examples of direct intervention are Pay Controls (1971-74) and the current TARP program, introduced in 2008 in respect of financial institutions (and subsequently extended to two automotive companies) and still in effect as to many of these institutions. [1]

An example of indirect intervention is the SEC’s requirement, commencing in the late 1930s, of disclosure regarding compensation of certain top executives in the annual proxy statements of publicly traded companies. [2] (Ironically, in contrast to direct controls, a major consequence of the SEC’s indirect intervention through required disclosure has been an upward “tilt” to executive pay—the so-called “ratcheting effect,” as discussed later in the column.)

READ MORE »

Supreme Court Reverses 7th Circuit in Jones v Harris

Editor’s Note: This post relates to the decision of the Supreme Court in Jones et al. v. Harris Associates L.P., which is available here.

In the case of Jones et al. v. Harris Associates L.P. (No. 08-586, March 30, 2010), the United States Supreme Court has vacated the decision of the Court of Appeals for the Seventh Circuit in Harris Assocs. v. Jones.

The case was previously discussed on the Forum here and here. The Seventh Circuit Decision case was discussed on the Forum here; another post relating to the decision can be found here.

The petitioners were shareholders in mutual funds managed by Harris Associates L.P., an investment adviser. They filed suit alleging that Harris Associates violated §36(b)(1) of the Investment Company Act of 1940, which imposes a “fiduciary duty [on investment advisers] with respect to the receipt of compensation for services”.

READ MORE »

Implications of Selectica for Next-Generation Poison Pills

Mark D. Gerstein is a partner in the Chicago office of Latham & Watkins LLP and Global Chair of that firm’s Mergers and Acquisitions Group. This post is based on a Latham & Watkins M&A Commentary by Mr. Gerstein, Bradley Faris, Joseph Kronsnoble and Christopher Drewry. Selectica v. Versata Enterprises was previously discussed on the Forum in this post. This post is part of the Delaware law series, which is cosponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

At a time when the number of corporations with stockholder rights plans “poison pills” is declining sharply and poison pills are heavily criticized by stockholder governance proponents and proxy advisory firms, the Delaware Court of Chancery, in Selectica, Inc. v. Versata Enterprises, Inc., [1] reaffirmed the value of the poison pill to boards seeking to protect and maximize stockholder value. In upholding a poison pill used outside the hostile offer context to protect an asset of the corporation, the court also reaffirmed the flexibility of Delaware law to respond to modern threats facing corporations. Selectica demonstrates that independent directors acting in good faith, on an informed basis and with the advice of outside experts, should be afforded substantial latitude to use new defensive technologies to respond to modern threats. Selectica also provides practical guidance for boards considering the adoption of poison pills.

READ MORE »

Rating Agencies in the Face of Regulation

This post comes to us from Milton Harris, Professor of Finance and Economics at the University of Chicago, Christian Opp, Ph.D. Candidate in Finance at the University of Chicago, and Marcus Opp, Assistant Professor of Finance at UC Berkeley.

In our paper, Rating Agencies in the Face of Regulation – Rating Inflation and Regulatory Arbitrage, which was recently made publicly available on SSRN, we develop a rational expectations framework to analyze how rating agencies’ incentives are altered when ratings are used for regulatory purposes such as bank capital requirements. Rating agencies have been criticized by politicians, regulators and academics as one of the major catalysts of the 2008/2009 financial crisis. One of the most prominent lines of attack, as voiced by Henry Waxman, is that rating agencies “broke the bond of trust” and fooled trustful investors with inflated ratings. However, should sophisticated financial institutions be realistically categorized as trustful and fooled investors in light of the fact that they interacted with rating agencies not only as investors but also as originators of subprime mortgage securities? Why would these institutional investors care about ratings when they knew about rating agencies’ practices?

READ MORE »

Judge Rejects SEC and Bank Proposal to Remove Firewall

Editor’s Note: A recent Davis Polk & Wardwell LLP Client Newsflash describing the modified Global Settlement discussed below is available here.

U.S. District Judge William H. Pauley III recently rejected a proposal by the Securities and Exchange Commission and a group of securities firms to modify the terms of their 2003 Global Research Equity Settlement (“Global Settlement”). Among other things, the Global Settlement, which binds 12 securities firms, including Goldman Sachs, JP Morgan, Merrill Lynch, Citigroup, Credit Suisse, Morgan Stanley and Deutsche Bank, puts in place limits on the interaction between the research and investment banking arms of the firms – a so-called “firewall”.

The SEC and the firms had agreed on a proposal to loosen some of the restrictions contained in the Global Settlement, including the firewall. The proposal would have permitted:

“Research personnel Investment Banking personnel to communicate with each other, outside the presence of internal legal or compliance staff, regarding market or industry trends, conditions or developments, provided that such communications are consistent in nature with the types of communications that any analyst might have with investing customers.”

Judge Pauley rejected the proposal. His ruling stated that:

Such a proposed amendment is counterintuitive and would undermine the separation between research and investment banking. On May 7, 2003, SEC Chairman William H. Donaldson emphasized the importance of that separation to the Senate Committee on Banking, Housing and Urban Affairs when he testified: “[T]here will be no overlap between the jobs of investment bankers and research analysts … To ensure that the separation between investment banking and research is comprehensive, firms will create and enforce firewalls between the two operations reasonably designed to prohibit improper communications between the two.” … The parties’ proposed modification would deconstruct the firewall between research analysts and investment bankers erected by the parties when they settled these actions. This Court declines to approve the proposed modification to Section I.10.a because it would be inconsistent with the Final Judgments and contrary to the public interest.

Judge Pauley’s full order is available here; the brief of the firms seeking the order is available here.

Delaware Offers Guidance on Special Litigation Committee Process

Theodore Mirvis is a partner in the Litigation Department at Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell Lipton firm memorandum by Mr. Mirvis, William Savitt and Ryan A. McLeod, and relates to the decision in London v. Tyrrell, which is available here. This post is part of the Delaware law series, which is cosponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

A recent decision from the Delaware Court of Chancery confirms that Special Litigation Committees (SLCs) can be an effective means of responding to derivative litigation— but only when carefully structured and properly implemented. London v. Tyrrell, C.A. No. 3321-CC (Del. Ch. Mar. 11, 2010).

The decision arose in a suit by the founders and former directors of iGov, alleging that company insiders had intentionally manipulated the valuation process used to set the strike price of certain options for the purpose of entrenching themselves and diluting plaintiffs’ interest in the company. In 2008, after the Court concluded that demand on the board was excused and refused to dismiss the complaint, the board formed an SLC comprised of directors appointed after the filing of the lawsuit to evaluate whether the derivative claims should be pursued on behalf of the company. The SLC retained advisors, reviewed documents, and conducted twelve interviews over the course of four months, and then filed a report recommending dismissal.

READ MORE »

Page 34 of 46
1 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 46