Yearly Archives: 2011

The Dodd-Frank Act, One Year On

Editor’s Note: The following post on the Dodd-Frank Act, published on the one-year anniversary of its passage, comes to us from Michael S. Barr, Professor of Law at the University of Michigan Law School and former Assistant Secretary for Financial Institutions at the Department of the Treasury. This post is based on a speech delivered by Professor Barr at the Pew/NYU Stern Conference on Financial Reform. The Forum has published more than one hundred posts related to aspects of the Dodd-Frank Act, and these posts are collected here. Some additional information about the Dodd-Frank Act on today’s anniversary can be found in a report from Morrison & Foerster, available here.

Over two years ago, the United States and the global economy faced the worst economic crisis since the Great Depression. The crisis was rooted in years of unconstrained excess on Wall Street, and prolonged complacency in Washington and in major financial capitals around the world. The crisis made painfully clear what we should have always known–that finance cannot be left to regulate itself; that consumer markets permitted to profit on the basis of tricks and traps rather than to compete on the basis of price and quality will, ultimately, put us all at risk; that financial markets function best where there are clear rules, transparency and accountability; and that markets break down, sometimes catastrophically, where there are not.

For many years, a core strength of the U.S. financial system had been a regulatory structure that sought a careful balance between incentives for innovation and competition, on the one hand, and protections from excessive risk-taking or abuse, on the other.

Over time those great strengths were undermined. The careful mix of protections we created eventually eroded with the development of new products and markets for which those protections had not been designed. And our regulatory system found itself outgrown and outmaneuvered by the institutions and markets it was responsible for regulating and constraining.

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Richard Breeden and Larry Hamdan Join PCG’s Advisory Board

The Forum is pleased to announce that Richard Breeden and Larry Hamdan joined the Advisory Board of the Harvard Law School Program on Corporate Governance. They are joining the existing members of the Board: William Ackman, Peter Atkins, Joseph Bachelder, Richard Climan, Isaac Corré, John Finley, Byron S. Georgiou, Robert Mendelsohn, David Millstone, Theodore Mirvis, James Morphy, Toby Myerson, Eileen Nugent, Paul Rowe, and Rodman Ward.

Richard Breeden is the founder and chairman of Breeden Capital Management LLC and a former chairman of the SEC. His bio is available here. Larry Hamdan is Executive Chairman of Global M&A and Head of Global Industrials M&A at Barclays Capital. He previously served as Vice Chairman of Global M&A and the Global Co-Head of the General Industrial Group at Credit Suisse. His bio is available here. Both Breeden and Hamdan already participated the Program’s recent M&A Roundtable.

The Impact of Common Advisors on Mergers and Acquisitions

The following post comes to us from Anup Agrawal, Professor of Finance at the University of Alabama; Tommy Cooper of the Department of Finance at Kansas State University; Qin Lian of the Department of Economics and Finance at Louisiana Tech University; and Qiming Wang of the Department of Economics and Finance at Louisiana Tech University.

In our paper, The Impact of Common Advisors on Mergers and Acquisitions, which was recently made publicly available on SSRN, we examine the conflict of interest that an investment bank faces when advising both the target and acquirer in a merger or acquisition (M&A) by investigating how common advisors affect deal outcomes.

When the New York Stock Exchange merged with Archipelago Holdings, Inc. in 2004, Goldman Sachs served as the lead M&A advisor to both sides of the deal. Goldman’s dual role was fraught with obvious conflicts of interest. The rationale given was that the bank, as the former underwriter of Archipelago’s IPO, had valuable insights about the potential synergies from the merger.

Whether a common M&A advisor has an adverse effect on one or both sides of a deal is unclear a priori, for two reasons. First, the advisor may be deterred from exploiting its clients by potential litigation costs, damage to its reputation, and the repeat nature of the business. Second, as considerable empirical evidence suggests, market participants may consider financial intermediaries’ conflicts of interest when making their own decisions.

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Bebchuk Becomes President-Elect of the Western Economic Association International

In its recent annual meeting held in San Diego, the Western Economic Association International (WEAI) elected Professor Lucian Bebchuk to be its President-Elect during 2011-2012. Bebchuk is scheduled to serve as President of the WEAI during 2012-2013.

Founded in 1922, WEAI is a non-profit, educational organization of economists, with 1,800 members around the world, dedicated to encouraging and communicating economic research and analysis. Its past presidents includes Nobel Laureates James Heckman (2007), Clive Granger (2003), Oliver Williamson (2000), Gary Becker (1997), Milton Friedman (1985), James Buchanan (1984), Kenneth Arrow (1981) and Douglass North (1976).

Derivatives and the Legal Origin of the 2008 Credit Crisis

Lynn A. Stout is the Paul Hastings Distinguished Professor of Corporate and Securities Law at the University of California, Los Angeles School of Law. This post is part of a series discussing articles appearing in the inaugural issue of the Harvard Business Law Review, which is published in partnership with the Harvard Law School Program on Corporate Governance.

In the paper Derivatives and the Legal Origin of the 2008 Credit Crisis (published in the inaugural issue of the Harvard Business Law Review), I argue that the credit crisis of 2008 can be traced first and foremost to a little-known statute Congress passed in 2000 called the Commodities Futures Modernization Act (CFMA). In particular, the crisis was the direct and foreseeable (and in fact foreseen, by myself and others) consequence of the CFMA’s sudden and wholesale removal of centuries-old legal constraints on speculative trading in over-the-counter (OTC) derivatives.

Derivatives contracts are probabilistic bets on future events that can be used to hedge (which reduces risk) but also provide attractive vehicles for speculation on disagreement (which can increase risk). The common law recognized the differing welfare consequences of hedging and speculative trading in derivatives by applying a doctrine called “the rule against difference contracts” to discourage derivatives that did not serve a hedging purpose by treating them as unenforceable wagers. Speculators responded by shifting their trading onto organized exchanges that provided private enforcement mechanisms, in particular clearinghouses through which exchange members guaranteed contract performance. The clearinghouses effectively cabined and limited the social cost of derivatives speculation risk. In the twentieth century, the common law rule was replaced by the federal Commodity Exchange Act (CEA). Like the common law, the CEA confined speculative derivatives trading to the organized (and now-regulated) exchanges. This regulatory system also for many decades also kept derivatives speculation from posing significant problems for the larger economy.

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Intellectual Capital, Corporate Governance, and Firm Value

The following post comes to us from Paul Kalyta of the Department of Accounting at McGill University.

Previous empirical studies on the benefits of “good” governance perform comprehensive and detailed analyses of corporate governance structures and regulations, but make no reference to the board’s intellectual capital, or knowledge, thereby substantially limiting the understanding of the role of corporate governance in organizational value creation. In the paper, Intellectual Capital, Corporate Governance, and Firm Value, which was recently made publicly available on SSRN, I address this gap.

I use the number of scientists on the board of directors as a proxy for the board’s intellectual capital and investigate the impact of directors-scientists on firm value in the population of publicly-listed U.S. firms. I expect a positive contribution of scientists to firm value in knowledge-intensive sectors, such as information technology, pharmaceuticals and chemical products, characterized by significant R&D activities, product innovation, and long-term projects. Boards with strong scientific expertise are more likely to make effective strategic R&D decisions and subsequently monitor these decisions effectively than boards with limited scientific experience. Directors with scientific background are also expected to have a longer decision horizon than other directors; the boards with strong scientific expertise are therefore more likely to select long-term projects that maximize the firm’s net present value instead of the projects that focus on current profits.

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An Introduction to the US Cleared Swap Infrastructure

The following post comes to us from David Felsenthal, a partner at Clifford Chance LLP focusing on financial transactions, and is based on a Clifford Chance client memorandum by Mr. Felsenthal, Gareth Old and David Yeres.

Introduction

In September 2009, the leaders of the G-20 stated that “All standardized OTC derivatives contracts should be traded on exchanges or electronic trading platforms, where appropriate, and cleared through central counterparties by end-2012 at the latest.”

In the United States, legislation to give effect to this statement was a central pillar of the over-the-counter derivates provisions of the Dodd–Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). Dodd-Frank requires that, following the effective date of detailed rules, standardized swaps that are accepted for clearing by clearing organizations must be submitted by the parties to the relevant clearing organization, unless one of the parties is an end-user exempt from the clearing requirement. Further, unless an end-user exemption applies, if a swap is accepted for trading by a registered execution facility, it must be traded on the exchange or by an approved off-exchange transaction like a block trade or “request-for-quote” (see “Swap Execution Facility” below).

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SEC Enforcement Actions Against Outside Directors Offer Reminder for Boards

Matteo Tonello is Director of Corporate Governance for The Conference Board, Inc. This post is based on a Conference Board Director Note by Amy L. Goodman and Justin S. Liu of Gibson, Dunn & Crutcher LLP, and is adapted from a Gibson Dunn client memorandum titled “SEC Targets Directors Who Ignore Red Flags.”

In recent months, the U.S. Securities and Exchange Commission has brought two enforcement actions against independent directors of two publicly traded companies. While the commission historically has not pursued public company directors, it does so when it deems the directors to have knowingly permitted or facilitated violations of the securities laws. This report discusses these recent cases in light of the SEC’s historical position on such offenses and offers recommendations for how board members can mitigate their risks.

The SEC enforcement actions were against four independent directors at two publicly traded companies. While these actions reflect the SEC’s interest in bringing actions against these types of directors, they are consistent with the commission’s historical practice of pursuing cases against independent directors only when it believes that they personally have engaged in violative conduct or have repeatedly ignored significant red flags (see “Historical SEC Actions against Outside Directors” below). One of the actions, which was brought as an administrative proceeding instead of as a complaint in federal court, illustrates how the commission may choose to use some of its new enforcement powers under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”).

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The Volcker Rule and Evolving Financial Markets

The following post comes to us from Charles K. Whitehead, an Associate Professor of Law at Cornell Law School. This post is part of a series discussing articles appearing in the inaugural issue of the Harvard Business Law Review, which is published in partnership with the Harvard Law School Program on Corporate Governance.

In the paper, The Volcker Rule and Evolving Financial Markets, published in the inaugural issue of the Harvard Business Law Review, I question the effectiveness of the Volcker Rule in light of change in the financial markets over the last thirty years. The Volcker Rule largely prohibits proprietary trading by banking entities—in effect, reintroducing to the financial markets a substantial portion of the Glass-Steagall Act’s static divide between banks and securities firms. By removing proprietary trading, the Rule’s proponents expect utility services, such as taking deposits and making loans, to once again dominate the commercial banking business,

There is considerable uncertainty around the scope of the Volcker Rule and its impact on the financial markets, highlighted—but not resolved—by the recently published Financial Stability Oversight Council study. Chief among the concerns is defining “proprietary trading.” Trading activity can vary among markets and by asset class, and so what constitutes a “near term” or “short-term” transaction for one instrument, subject to the Volcker Rule, may be quite different for another. How, if at all, should the Volcker Rule distinguish among them? In addition, different firms employ different trading strategies, and so what would be considered proprietary at one firm may not be the same at another. A firm may also vary its approach to trading based on changes in the marketplace. A longer-term investment, for example, may be resold quickly in the face of an increasingly volatile market. How can regulators distinguish between changes in strategy and prohibited transactions? And how should regulators separate prohibited transactions from permitted activities, such as market-making?

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SEC Adopts Rule on Beneficial Ownership of Security-Based Swaps

Annette Nazareth is a partner in the Financial Institutions Group at Davis Polk & Wardwell LLP. This post is based on a Davis Polk client memorandum by Ms. Nazareth, Daniel N. Budofsky, Robert L.D. Colby, Linda A. Simpson and Gabriel D. Rosenberg.

The SEC has readopted portions of Rules 13d-3 and 16a-1 to ensure that its current beneficial ownership definition, which applies for purposes of disclosure and short-swing profit rules, will continue in effect with respect to persons who purchase or sell security-based swaps (“SBS”) on and after July 16, 2011.

SBS include products such as credit default swaps on a single security or loan or a total return swap on one or a narrow-based index of securities, other than government securities. Currently, under Rules 13d-3 and 16a-1, contracts that will become SBS on July 16 may involve beneficial ownership for purposes of Sections 13 and 16 of the Exchange Act as follows:

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