Yearly Archives: 2011

Director Histories and the Pattern of Acquisitions

The following post comes to us from Peter Rousseau, Professor of Economics at Vanderbilt University, and Caleb Stroup of the Department of Economics at Vanderbilt University.

It is well-known in finance and economics that firms possess private information about their own fundamental values. In our paper, Director Histories and the Pattern of Acquisitions, which was recently made publicly available on SSRN, we contribute to this literature by examining, in the context of the market for corporate control, how the transmission of non-public information about potential targets influences mergers and acquisitions. This is interesting because, despite extensive research on the determinants of acquisitions, we can still only imperfectly predict which firms will choose to initiate acquisitions and, for those that do, how they choose among potential targets.

We capture a potential acquirer’s exposure to target-specific non-public information by tracking the service histories of its directors over time. If a current director was formerly on the board of another firm, we say that the two firms have an historical interlock. We treat these directed firm-pair interlocks as containing information about the firm where the current director once served, and estimate the impact of this information on the decision to initiate an acquisition of that firm. Our main results indicate that a given firm is about five times more likely to initiate an acquisition of a historically-interlocked target than some other unlinked firm.

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SEC Concept Release on Use of Derivatives by Funds

The following post comes to us from David Gilberg, partner at Sullivan & Cromwell LLP, and is based on a Sullivan & Cromwell publication.

The Securities and Exchange Commission recently published a concept release and request for comments (the “Release”) on a wide range of issues relating to the use of derivatives by investment companies regulated under the Investment Company Act of 1940, including mutual funds, closed-end funds, exchange-traded funds and business development companies (collectively, “funds”).

The stated purpose of the Release is to assist in the SEC’s evaluation of whether the current regulatory framework, as it applies to funds’ use of derivatives, continues to fulfill the purposes and policies underlying the Act and is consistent with investor protection. The SEC states that it intends to use the comments it receives to help determine whether regulatory initiatives or guidance are necessary to improve the current regulatory regime and the specific nature of any such initiatives.

The Release solicits broad public comment and comprehensive information on any matters that may be relevant to the use of derivatives by funds, and it focuses particular attention, and requests specific comment, on issues relating to:

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Fixing the Watchdog: Evaluating and Improving the SEC

Editor’s Note: Mary Schapiro is Chairman of the U.S. Securities and Exchange Commission. This post is based on Chairman Schapiro’s testimony before the U.S. House of Representatives Committee on Financial Services, which is available here. The views expressed in the post are those of Chairman Schapiro and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

I would like to discuss the organizational assessment of the Securities and Exchange Commission recently performed by the Boston Consulting Group, Inc. (BCG). [1] The study was mandated by Section 967 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). My testimony will discuss the specifics of the BCG report and our plans for following up on the report’s many recommendations, and also briefly discuss the two pieces of legislation included in the Committee’s invitation letter concerning the SEC’s organization and method of promulgating rules and issuing orders.

When I arrived at the SEC two years ago, the agency was reeling from a variety of economic events and mission failures that had severely harmed the ability of the agency to achieve its mission of protecting investors, maintaining fair and orderly markets, and facilitating capital formation. Reform was needed across the agency, and we immediately initiated decisive and comprehensive steps to reform the way the Commission operates. We brought in new leadership and senior management in virtually every office (including the Commission’s first Chief Operating Officer and Chief Compliance Officer), revitalized and restructured our enforcement and examination operations, revamped our handling of tips and complaints, took steps to break down internal silos and create a culture of collaboration, improved our risk assessment capabilities, recruited more staff with specialized expertise and real world experience, expanded our training, and, through rulemaking and leveraging of public accounting firms’ efforts, enhanced safeguards for investors’ assets, among other things. Our goal throughout these many changes has been to create a more vigilant, agile and responsive organization to perform the critical mission of the agency.

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Due Diligence Considerations for Nominees

The following post comes to us from Ackneil M. Muldrow, partner focusing on merger and acquisition transactions at Akin Gump Strauss Hauer & Feld LLP, and is based on an article by Mr. Muldrow and Louis Kacyn of Egon Zehnder International which originally appeared in Thomson Reuters Accelus “Business Law Currents” publication.

When individuals are approached to join the board of directors of a public or private company, they are often thrilled by the opportunity to provide strategic guidance and advice to a new business enterprise, build new relationships with board members and perhaps transition to a new point in their careers.  However, it is rare for a nominee to complete adequate and systematic due diligence on the prospective company and the members of its board of directors prior to joining.

The premise of this article is simple: due diligence should be a two-way endeavor, undertaken by the company as well as the nominee.  This article provides practical advice for prospective nominees regarding the more refined issues they should consider and the questions they should ask prior to joining a board. With these inquiries significant considerations may be identified and then used in a nominee’s decision calculus.

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The Myth of Corporate Tax Reform

Editor’s Note: Robert Pozen is a senior lecturer at Harvard Business School and a senior fellow at the Brookings Institution. This post is based on an op-ed that appeared in the Washington Post.

House Speaker John Boehner recently joined the chorus of notables calling for corporate tax reform in any deficit-reduction package. Both Democrats and Republicans want to reduce the corporate tax rate from 35 percent to 25 percent, in return for eliminating the tax credits and deductions available primarily to U.S. corporations.

The rationale behind the proposal is sound in theory — a lower tax rate would help all profitable corporations. By contrast, Congress often bestows tax benefits on industries that are perceived as potential winners or those wielding political clout.

In theory, this proposal would also be revenue-neutral. The rate reduction would decrease U.S. tax revenue by approximately $600 billion during the next five years, but this would be offset by the additional tax revenue gained with the elimination of corporate tax “loopholes.”

But the chances of this proposal passing Congress on a revenue-neutral basis are slim. Most of the corporate tax benefits that would need to be repealed have both a significant positive effect on economic growth and deep political support among powerful constituencies. Moreover, repeal would hurt many non-corporate entities, such as local governments and partnerships running operating businesses, that would gain nothing from a lower corporate tax rate.

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Corporate Governance and the Information Content of Insider Trades

The following post comes to us from Alan Jagolinzer of the Department of Accounting at the University of Colorado; David Larcker, Professor of Accounting at Stanford University; and Daniel Taylor of the Department of Accounting at the University of Pennsylvania.

In the paper, Corporate Governance and the Information Content of Insider Trades, forthcoming in the Journal of Accounting Research, we examine the impact of the firm’s internal control process – specifically, actions taken by the general counsel (GC) – on addressing one specific governance issue, namely mitigating the level of informed trade. In order to investigate the effectiveness of the governance provisions in the insider trade policy (ITP) at mitigating informed trade, we examine the trades made by Section 16 insiders where we know the precise terms of the firm’s ITP. It is illegal for insiders to trade while in possession of material nonpublic information (Securities and Exchange Acts of 1933 and 1934; Insider Trading Sanctions Act of 1984 (ITSA); Insider Trading and Securities Fraud Enforcement Act of 1988 (ITSFEA)). However, prior research finds that insiders do appear to place, and profit from, trades based on superior information (e.g., Aboody and Lev, 2000; Ke et al. 2003; Piotroski and Roulstone, 2005; Huddart et al., 2007; Ravina and Sapienza, 2010). Building on these studies, we test the effectiveness of governance provisions in the ITP by examining whether such provisions are associated with (decreased) insider trading profits and the ability of insiders’ trades to predict future operating performance.

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California Changes Law to Streamline Standards for Distributions and Dividends

Eduardo Gallardo is a partner focusing on mergers and acquisitions at Gibson, Dunn & Crutcher LLP. This post is based on a Gibson Dunn Client Alert by David Hernand, Stewart McDowell, and Abigail Wen.

On September 1, 2011, the Governor of California signed into law California Assembly Bill No. 571 (“AB 571”), which will liberalize and streamline the legal standards for California corporations and quasi-California corporations to make cash and property distributions to shareholders, including dividends and share repurchases and redemptions. AB 571 amends portions of the California Corporations Code (the “Code”) limiting corporate distributions that have been in effect since 1977, which many lawyers and clients have found confusing and overly restrictive. The new law will make California’s restrictions on shareholder distributions more consistent with analogous restrictions applicable to California limited liability companies and limited partnerships and the corporate laws of most other states.

With AB 571, boards of directors of corporations will be free to consider the fair market value of a corporation’s assets, instead of historical carrying cost, and rely on whatever financial information a board deems reasonable under the circumstances, when determining whether the corporation has sufficient assets relative to its liabilities to distribute cash or property to its shareholders. This change alone will make it significantly easier for financially healthy corporations with historical book losses and appreciated assets (as is common with many growth companies) to pay dividends or redeem or repurchase shares.

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Dodd Frank, One Year On

The following post comes to us from Paul Watterson, partner and co-head of the Structured Products & Derivatives Group at Schulte Roth & Zabel LLP, and is based on an article by Mr. Watterson and Craig Stein which was previously published in the International Finance Law Journal.

“Either the CFTC or the SEC may prohibit an entity from participating in the US swap markets if it is domiciled in a country whose regulation of swaps undermines the stability of the US financial system”.

In July 2010, in response to the financial crisis of 2008/9 which resulted in the deepest economic recession in the United States since the Great Depression of the 1930s, the United States Congress passed, and President Obama signed into law, the Dodd-Frank Wall Street Reform and Consumer Protection Act. The Act addresses a broad range of issues including consumer protection, rating agencies, systemic risk, executive compensation, private fund adviser registration, the so-called Volker Rule, and prudential risk regulation. A significant component of the Act is the regulation of derivatives and participants in derivative markets.

In What the changes really mean (IFLR Derivatives Supplement, July 2010), the same authors discussed the provisions of the Act. The main provisions of the legislation relating to derivatives are increased transparency, clearing and exchange trading requirements, regulation of swap dealers and other swap market participants, restrictions on swaps trading by banks and increased capital and margin requirements. It was left to the regulators to promulgate rules and regulations implementing many details of the Act. For almost a year now, the regulators have been proposing many rules and industry participants have been commenting on those proposals. On some issues, the industry is still anxiously awaiting proposed rules in order to obtain clarification of the Act. Due to the incredibly large volume of rules that the regulators were required to adopt and the long process for public comments on proposed rules, although parts of the Act were originally intended to become effective beginning July 16 2011, that date may be extended.

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Dodd-Frank for Bankruptcy Lawyers

The following post comes to us from Douglas G. Baird, Professor of Law at the University of Chicago, and Edward R. Morrison, Professor of Law and Economics at Columbia University.

In our paper, Dodd-Frank for Bankruptcy Lawyers, which was recently made publicly available on SSRN, we identify the core congruities between an “Orderly Liquidation Authority” (OLA) created by the Dodd-Frank financial reform legislation and the Bankruptcy Code. Title II of Dodd-Frank removes bankruptcy court jurisdiction from only a narrow range of cases—“financial companies” whose failure is sufficiently threatening to market stability. The vast majority of giant businesses, including systemically important ones (i.e., the General Motors of the next great recession), are not “financial companies” within the meaning of Title II. They remain squarely in the province of bankruptcy law. Moreover, the mechanics of the new receivership process incorporate basic bankruptcy principles. They effectively permit reorganization as well as liquidation, debtor-in-possession financing, asset sales free and clear of existing liens, claw-back of prepetition fraudulent and preferential transfers, and safe harbors for financial contracts.

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Future of Institutional Share Voting Revisited: A Fourth Paradigm

Charles Nathan is Of Counsel at Latham & Watkins LLP and is co-chair of the firm’s Corporate Governance Task Force. This post is based on a Latham & Watkins Corporate Governance Commentary; the complete commentary, including omitted footnotes, is available here.

The Prevailing One-Size-Fits-All Voting Policy Paradigm

A year ago, we published a Corporate Governance Commentary titled Future of Institutional Share Voting: Three Paradigms. We began by observing that the prevailing paradigm for institutional investors voting of portfolio company shares is to delegate all but the most obvious economically related voting decisions to either an internal or external corporate governance team that is largely, or all too often totally, separate from the investment policy decision making team— in effect, a parallel universe of voting decision makers. Because of the huge number of voting decisions facing institutional investors, the prevailing corporate governance methodology for deciding how to vote portfolio shares is to apply formulaic voting policies that push all portfolio companies, no matter how different their particular circumstances, through a uniform one-size-fits-all voting mold.

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