Monthly Archives: February 2012

Delaware Corporations Seek to Counter Forum Shopping

Claudia H. Allen is chair of the Corporate Governance Practice Group at Neal, Gerber & Eisenberg LLP. This post discusses a study by Ms. Allen, available here. This post is part of the Delaware law series, which is co-sponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

In response to concerns that the plaintiffs’ bar is rushing [1] to sue Delaware corporations “anywhere but Delaware,” to avoid the predictability and speed of Delaware courts and potentially to obtain larger settlements, 195 Delaware corporations (including Chevron, DIRECTV, Life Technologies and 24 other members of the S&P 500) have adopted or proposed adopting charter or bylaw provisions requiring that derivative actions, fiduciary duty claims and other intra-corporate disputes be litigated exclusively in the Delaware Court of Chancery. Among other things, these provisions seek to address the phenomenon of Delaware corporations facing parallel, competing litigation in Delaware and another state or in federal court, [2] often in connection with M & A activity. The January 2012 edition of my Study of Delaware Forum Selection in Charters and Bylaws analyzes these provisions and the trends they reveal.

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February 2012 Dodd-Frank Progress Report

The following post comes to us from Margaret E. Tahyar and Gabriel D. Rosenberg of the Financial Institutions Group at Davis Polk & Wardwell LLP. This post discusses a Davis Polk report which is available here. A post about the previous progress report is available here. Other posts about the Dodd-Frank Act are available here.

This posting, the February 2012 Davis Polk Dodd-Frank Progress Report, is the eleventh in a series of Davis Polk presentations that illustrate graphically the progress of the rulemaking work that has been done and is yet to occur under the Dodd-Frank Act. The Progress Report has been prepared using data from the Davis Polk Regulatory Tracker™, an online subscription service offered by Davis Polk to help market participants understand the Dodd-Frank Act and follow regulatory developments on a real-time basis.

In this report:

  • As of February 1, 2012, a total of 225 Dodd-Frank rulemaking requirement deadlines have passed. Of these 225 passed deadlines, 164 (72.9%) have been missed and 61 (27.1%) have been met with finalized rules.
  • Major rulemaking activity this month included CFTC final rules on business conduct standards and registration of swap dealers and major swap participants.
  • The GAO published seven studies in January 2012.

The Flight Home Effect

The following post comes to us from Mariassunta Giannetti, Professor of Finance at the Stockholm School of Economics, and Luc Laeven of the International Monetary Fund and Professor of Finance at Tilburg University.

In our paper, The Flight Home Effect: Evidence from the Syndicated Loan Market During Financial Crises, forthcoming in the Journal of Financial Economics,  we study whether lenders, when hit by shocks that negatively affect bank wealth in their home market, have a tendency to rebalance their portfolio away from international markets to their domestic market. We explore this flight home effect in the context of the syndicated loan market, a large and highly internationalized financial market.

After controlling for demand shocks in foreign markets, we explore whether foreign lenders not only transmit shocks to foreign markets, as established in existing literature, but also whether they amplify these effects by substituting foreign loans for domestic loans. To establish whether this is the case, we analyze how the relative importance of a bank’s domestic and foreign loans varies following negative shocks.

Our results are consistent with the existence of a flight home effect. The proportion of loans granted to domestic borrowers increases by approximately 20 percent if the home country of the bank experiences a banking crisis, or more generally, if banks’ stock prices in the home country show a large decline. Lenders with less stable funding sources, being more vulnerable to negative liquidity shocks (Demirgüç-Kunt and Huizinga, 2010; Ivashina and Scharfstein, 2010), exhibit a stronger flight home effect. Overall, the results indicate that the home bias in the international allocation of syndicated loans increases in the presence of adverse economic shocks affecting the net wealth of international lenders.

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Should Your Board Have a Separate Risk Committee?

Matteo Tonello is Director of Corporate Governance for The Conference Board, Inc. This post is based on a Conference Board Director Note by Carol Beaumier and Jim DeLoach, which was adapted from Board Perspectives: Risk Oversight, Protiviti, Issue 24, October 2011.

It is generally accepted that the full board has overall responsibility for risk oversight, mirroring the board’s responsibility for overseeing strategy. In deciding how to organize itself to oversee risk and risk management, the question arises as to whether the board should establish a separate risk committee. This article explores that question and provides examples to clarify the role and responsibility of a separate risk committee in situations where the board decides to establish one.

Through the risk oversight process, the board of directors obtains an understanding of the critical risks inherent in the corporate strategy, accesses useful information from internal and external sources about the critical assumptions underlying that strategy, remains alert to organizational dysfunctional behavior that can lead to excessive risk taking, and provides input to executive management regarding critical risk issues on a timely basis. How the board views risk oversight as a process should dictate how it chooses to organize itself for purposes of executing that process. The risk oversight process enables the board and management to develop a mutual understanding regarding the risks the company faces over time as it executes its business model for creating enterprise value. In organizing itself for risk oversight, what are some of the factors for boards to consider and when should boards establish a separate risk committee?

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House Passes Its Version of STOCK Act

The following post comes to us from Kenneth A. Gross, leader of the Political Law practice at Skadden, Arps, Slate, Meagher & Flom LLP, and is based on two Skadden, Arps memorandums.

The U.S. House of Representatives passed by a vote of 417-2 its version of the STOCK Act, which, as you may know from our previous post, was introduced in response to the U.S. Senate’s passing its own version of the STOCK Act. Now that the House version has passed, we expect that the House and Senate versions will go to conference. A copy of the House version of the STOCK Act can be found here.

Please note that among the more notable differences between the bills are that the Senate version amends both the Lobbying Disclosure Act of 1995 (by adding a new category of activities, “Political Intelligence Contacts”) and the illegal gratuities statute, but the House version does not. The differences between the two bills will have to be resolved and then approved by both the House and Senate in order for a final bill to be sent to the White House.

Cross Border Shareholder Class Actions Before and After Morrison

Elaine Buckberg is Senior Vice President at NERA Economic Consulting. This post is based on a NERA publication by Ms. Buckberg and Max Gulker; the full publication is available here.

In our paper, Cross Border Shareholder Class Actions Before and After Morrison, we conduct an empirical inquiry into the effect of the Supreme Court’s 2010 decision in Morrison v. National Australia Bank on the competitiveness of US markets as a venue for listings by foreign issuers and trading in cross-listed stocks. Passed in the wake of Morrison, the Dodd-Frank Act requires that the SEC inform Congress about the merits of creating a new extraterritorial private right of action. We provide input into the debate by using data on 329 shareholder class actions filed against foreign companies and discussing the effects of such a right on the competitiveness of U.S. capital markets.

We conclude that foreign companies’ expected litigation costs should fall after Morrison, because investors who purchased their shares on overseas exchanges will be excluded from classes. By reducing expected litigation costs, Morrison eases a deterrent to US listing by foreign issuers and thereby makes the US a more competitive venue for cross-listings, as well as for the volume in the cross-listed stocks. We submitted our paper to the SEC as part of its public comment process, and have posted it on SSRN.

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Loyalty Claims Against Outside Directors

Steven Haas is an associate at Hunton & Williams specializing in mergers and acquisitions, securities laws and corporate governance matters. This post is part of the Delaware law series, which is co-sponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

A September 2011 Delaware Court of Chancery decision refused to dismiss claims alleging that a board of directors breached its fiduciary duty of loyalty in authorizing a sale of a corporation to a third party. The stockholder plaintiff alleged that the sale was motivated by the corporation’s former chairman and chief executive officer, who owned 37% of the corporation’s common stock and needed liquidity. The decision is significant for refusing to dismiss allegations of disloyal conduct against outside directors who were disinterested in the transaction and otherwise unaffiliated with the former CEO.

Background

New Jersey Carpenters Pension Fund v. infoGROUP, Inc. involved the 2010 sale of infoGROUP, Inc., to a private equity fund. The stockholder-plaintiff alleged that the sale was motivated by the corporation’s former chairman and chief executive officer, who owned 37% of the company and “desperately needed liquidity” to fund a new venture and to satisfy $12 million in settlement obligations stemming from a Securities and Exchange Commission action and a derivative suit brought against him. The plaintiff claimed that the board of directors breached its fiduciary duties by capitulating to the former CEO’s pressure and approving a transaction that was not in the best interests of all shareholders.

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Managerial Investment and Changes in GAAP

The following post comes to us from Nemit Shroff of the Department of Accounting at MIT.

In my paper, Managerial Investment and Changes in GAAP: An Internal Consequence of External Reporting, which was recently made publicly available on SSRN, I investigate whether changes in Generally Accepted Accounting Principles (GAAP) affect corporate investment decisions. I hypothesize that the relation between changes in GAAP and investment manifests for at least two non-mutually exclusive reasons. First, I hypothesize that changes in GAAP can affect investment because the numbers reported in financial statements have a direct bearing on contractual outcomes. For example, debt contracts often contain covenants based on numbers reported in financial statements (Leftwich [1983]). Consequently, if a change in GAAP has an unfavorable (favorable) impact on current and future financial statements, and debt covenants are not adjusted to incorporate the changes, the change in GAAP will likely tighten (loosen) covenant slack. As a result, managers may alter their actions to avoid covenant violation. Specifically, since most investments have an uncertain future outcome and some positive probability that the outcome is a loss, they increase the probability of violating covenants in the future by adversely impacting future financial ratios. Consequently, managers might respond to changes in GAAP that adversely affect financial statements by cutting investment in risky assets with the goal of preserving net worth and preventing deterioration of financial ratios.

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Congress Considers STOCK Act Amending Insider Trading Laws

The following post comes to us from Kenneth A. Gross, leader of the Political Law practice at Skadden, Arps, Slate, Meagher & Flom LLP, and is based on two Skadden, Arps memorandums.

Last Thursday, February 2, 2012, the Senate passed S. 2038 (the STOCK Act) which, among other things:

  • confirms that the insider trading ban under Section 10(b) of the Securities Exchange Act of 1934 (’34 Act) applies to congressional members and staff, and executive and judicial branch officials;
  • amends the Lobbying Disclosure Act of 1995 (LDA) to cover political intelligence contacts; and
  • broadens the illegal gratuities statute.

The above changes are described in greater detail below. Information about the House version of the STOCK Act is provided later in the post.

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Court of Chancery Upholds Contractual Modifications of Fiduciary Duties

The following post comes to us from Allen M. Terrell, Jr., director at Richards, Layton & Finger, and is based on a Richards, Layton & Finger update. This post is part of the Delaware law series, which is co-sponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

In Gerber v. Enterprise Products Holdings, LLC, C.A. No. 5989-VCN (Del. Ch. Jan. 6, 2012), the Court of Chancery enforced the contractual modification of fiduciary duties in Enterprise GP Holdings, L.P.’s partnership agreement and, on a motion to dismiss, dismissed all claims against the defendants arising out of the sale of a subsidiary by Enterprise GP Holdings to an affiliate and the subsequent merger of Enterprise GP Holdings into the same affiliate.

In April 2009, Enterprise GP Holdings sold Texas Eastern Products Pipeline Company, LLC to Enterprise Products Partners, L.P., a publicly traded partnership managed by a subsidiary of Enterprise GP Holdings (the “Sale”). A committee of independent directors of EPE Holdings, LLC, the general partner of Enterprise GP Holdings, approved the Sale after receiving a fairness opinion from Morgan Stanley & Co. In September 2010, Enterprise Products Partners and Enterprise GP Holdings entered into a merger agreement that provided for Enterprise Products Partners to issue units in exchange for all of the outstanding units of Enterprise GP Holdings (the “Merger”). Again, a committee of independent directors of EPE Holdings approved the Merger after receiving a fairness opinion from Morgan Stanley.

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