Monthly Archives: November 2012

Taxing Control

The following post comes to us from Richard M. Hynes, Professor of Law at University of Virginia School of Law.

Early corporate law scholarship argued both that anti-takeover devices are inefficient (they reduce the value of the firm) and that firms adopt efficient governance terms before they make their initial public offering. Some of this scholarship asserted that firms go public without anti-takeover devices and adopt them later when agency costs are higher. However, subsequent research revealed that most firms adopt anti-takeover devices before completing their initial public offerings. For example, over eighty-six percent of firms that have gone public in 2012 have a staggered board of directors, and both Google and Facebook chose dual-class capital structures that allow the founders to retain voting control disproportionate to their economic stake.

The literature offers a number of explanations for this apparent puzzle. Capital market imperfections may prevent initial public offering prices from reflecting differences in corporate governance terms. Firms may choose inefficient terms due to bad legal advice or because of frictions in the market for financing prior to the initial public offering. Anti-takeover protections could be efficient after all, at least for some firms, because they correct for myopic investors or some other problem. Finally, managers may choose anti-takeover provisions to signal something about their firms. In an essay forthcoming in the Journal of Corporation Law I offer a very different explanation, one based on the tax code.

My argument begins with a variant of one of the existing explanations for anti-takeover protections. The heart of the argument is that managers are not driven solely by a desire for material gain but derive some happiness or utility from the control they exercise over their firm. To the extent that managers derive happiness from control, they may not choose governance terms that maximize the dollar value of the firm. However, unless there is some contracting failure, they will still choose efficient terms — terms that maximize the total value of the firm (the dollar value plus the control value).

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The Economic Consequences of Proxy Advisor Say-on-Pay Voting Policies

David Larcker is the James Irvin Miller Professor of Accounting at Stanford University.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) imposed a requirement that public companies allow shareholders the opportunity to cast an advisory vote on executive compensation (typically annually). This requirement is commonly referred to as say-on-pay (SOP). Shareholders that disagree with a firm’s executive compensation program can cast anon-binding (or precatory) vote “against” the management compensation program disclosed in the proxy statement for the annual shareholder meeting. Presumably firms with a substantial proportion of negative votes will make appropriate changes to their compensation program.

In the paper, The Economic Consequences of Proxy Advisor Say-on-Pay Voting Policies, which was recently made publicly available on SSRN, my co-authors (Allan McCall of Stanford University and Gaizka Ormazabal of the University of Navarra) and I examine the changes that boards of directors make in anticipation of the initial SOP votes and the shareholder reaction to those changes. Since the SOP vote is advisory, boards are under no obligation to make changes pursuant to its outcome. A board may simply wait to see the outcome of the vote before deciding whether changes to compensation programs are warranted. However, if a board anticipates substantial opposition to its executive compensation program and believes that this opposition is costly to shareholders (e.g., because it invites derivative lawsuits, negative press, regulatory scrutiny, or distracts executives and employees), it might rationally take preemptive actions to decrease the probability of receiving negative votes. In such a setting, the board of directors will be interested in anticipating whether institutional investors (who hold the majority of outstanding shares) will vote for or against a SOP proposal.

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Protecting Investors through Independent, High Quality Audits

Editor’s Note: The following post comes to us from Jeanette M. Franzel, board member of the Public Company Accounting Oversight Board. This post is based on Ms. Franzel’s remarks at the NACD 2012 Board Leadership Conference, available here. The views expressed in this post are those of Ms. Franzel and should not be attributed to the PCAOB as a whole or any other members or staff.

I want to commend the NACD on its mission to “advance exemplary board leadership” and on the extensive training and resources devoted to leading practices for board members, including audit committees and other specialized board committees.

The principal elements of the Sarbanes-Oxley Act — strengthening the role of audit committees, establishing the PCAOB to oversee auditors, and enhancing auditor independence and corporate accountability — aligned the interests of the PCAOB and audit committees. We both focus on auditor oversight to help ensure independent, high quality, and reliable audits to protect investors.

Recent questions about financial reporting and auditing, as well as related regulatory initiatives in the U.S. and around the world, highlight the benefits of and need for greater communications between regulators and audit committees.

Today, following the recent financial crisis, we find ourselves once again evaluating how best to protect investors through high quality financial reporting and reliable audits.

As you know, in pursuing our core mission of protecting investors through audit oversight, the Board has a number of initiatives to consider improvements in major areas of audit practice. I’d like to provide an update on several of the Board’s key initiatives that have a direct impact on audit committees, including our concept release on auditor independence and audit firm rotation, the new auditing standard on communications with audit committees, and our recent informational release that deals with communications with audit committees about PCAOB inspection results.

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Final Rules from the Federal Banking Agencies

The following post comes to us from Dwight Smith, partner focusing on bank regulatory matters at Morrison & Foerster LLP, and is based on a Morrison & Foerster memorandum by Mr. Smith and Charles Horn.

On October 19, 2012, the Office of the Comptroller of the Currency (“OCC”), the Federal Deposit Insurance Corporation (“FDIC”) and the Federal Reserve Board (“Board”) approved final rules, which were proposed for comment in January of this year, [1] implementing the Dodd-Frank Act’s company-run stress testing requirements for all insured depository institutions with total consolidated assets of $10 billion or more. [2] In addition, the Board has simultaneously published final stress-testing rules, covering the Dodd-Frank Act’s requirements for Board-run and
company-run stress-testing requirements for banking organizations with more than $50 billion in total consolidated assets. [3]

Most of the changes between the proposed rules and the final rules involve the procedures and timelines, rather than the substance, of the required stress-testing. Highlights of the regulatory actions include:

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Regulation of the Investment Advisers

Editor’s Note: Daniel M. Gallagher is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on a statement from Commissioner Gallagher; the full speech, including footnotes, is available here. The views expressed in the post are those of Commissioner Gallagher and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

In January 2011, the Commission, with Commissioners Casey and Paredes dissenting, issued a staff report on a study, conducted pursuant to Section 913 of the Dodd-Frank Act, of the effectiveness of the existing regulatory standards of care that apply when brokers and investment advisers provide personalized investment advice to retail customers. In addition to mandating that study, Section 913 authorized, but did not require, the Commission to adopt rules establishing a duty of care for brokers identical to that which applies to investment advisors — in other words, a uniform fiduciary duty for brokers and investment advisors — and to undertake further efforts to harmonize the two regulatory regimes.

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The SEC is Now Actively Considering the Rulemaking Petition on Corporate Political Spending

Lucian Bebchuk is Professor of Law, Economics, and Finance at Harvard Law School. Robert J. Jackson, Jr. is Associate Professor of Law and Milton Handler Fellow at Columbia Law School. Bebchuk and Jackson served as co-chairs of the Committee on Disclosure of Corporate Political Spending, which filed a rulemaking petition concerning political spending, discussed on the Forum here and here. Posts discussing their articles on corporate political spending, Corporate Political Speech: Who Decides?, and Shining Light on Corporate Political Spending, are available here.

According to a WSJ.com report, the Director and Deputy Director of the SEC’s Division of Corporate Finance indicated that the Division is now actively considering a rulemaking petition that was submitted by a committee of ten law professors that we co-chaired. The petition urged the SEC to adopt rules that would require public companies to disclose information about their political spending. At a conference this week, both the Director and Deputy Director indicated that the Division is currently looking into whether to recommend that the SEC issue such a rule.

As the Journal report notes, so far the SEC has received more than 300,000 comments on our petition—to our knowledge, more than any other rulemaking proposal in the Commission’s history. The overwhelming majority of these comments are supportive of the petition, leading the Director of the SEC’s Division of Corporation Finance to observe that the proposal “obviously [involves] an issue that’s extremely important to many.” In addition to the comments in the regulatory file, the petition has received support from a sitting Commissioner of the SEC, a substantial number of members of both the U.S. Senate and House of Representatives, and editorials in the New York Times and Bloomberg News.

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Litigating Post-Close Merger Cases

Boris Feldman is a member of Wilson Sonsini Goodrich & Rosati, P.C. Mr. Feldman and others at his firm were involved in some of the cases discussed. The views expressed in this post are those of Mr. Feldman and do not reflect those of his firm or clients.

Shareholder lawsuits over mergers are as ubiquitous as they are meritless. The incidence of suits over public-company acquisitions rounds to always. It doesn’t matter how high the premium or how clean the deal: someone (usually, one of the same someones) will sue.

The frequency of merger lawsuits has increased steadily over time. What has changed more abruptly is their life cycle. Until recent years, once a deal closed, the lawsuit usually went away. If the plaintiffs had been unable to wring out a “therapeutic” settlement pre-close (usually, “enhanced” disclosure + a fee) they ignored or dismissed the case after the acquisition was complete. The conventional wisdom was that plaintiffs’ leverage — threatening to interfere with the deal — was gone, and so there was no longer a path to payday.

In several recent cases, however, plaintiffs’ merger lawyers have refined their business model. They keep the litigation alive post-close. They take extensive discovery, especially against the executives of the acquirer, who now control the pursestrings. This phenomenon occurs even in situations where objective factors suggest a lack of merit to the claims: e.g., high premium; no contesting bidders; overwhelming shareholder approval; customary deal terms.

Why are the plaintiff lawyers pursuing these cases?

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Revaluation of Targets after Merger Bids

Ulrike Malmendier is a Professor of Economics at the University of California, Berkeley.

Mergers are among the largest and most disruptive events in a corporation’s lifetime. The proper assessment of their value implications has been of foremost interest to policy-makers and academic researchers alike. Much of the research on mergers and acquisitions aims to assess which transactions create, or destroy, how much shareholder value, including a recent debate about “massive wealth destruction” through mergers (Moeller et al. (2005)).

Empirically, the measurement of the causal effect of mergers is challenging. The standard approach in the literature is to use stock-market reactions to merger announcements and to interpret the combined change in target and acquirer values as the expected total value created. This approach builds on a number of assumptions, including the assumptions that markets are efficient, that mergers are unanticipated and unlikely to fail, and that merger bids reveal little about the stand-alone values of the merging entities. Various studies document a small positive combined announcement return of targets and bidders, and interpret this finding as evidence in favor of value creation.

In our recent NBER working paper, Cash Is King — Revaluation after Merger Bids, my co-authors (Marcus Opp of UC Berkeley and Farzad Saidi of New York University) and I argue that a large portion of the announcement effect reflects target revaluation rather than value created through mergers, and that this portion varies with the type of payment: Targets of cash offers are revalued by +15%, but there is no revaluation of stock targets. We also find significant negative revaluation effects for stock bidders, but no effect for cash bidders. Our results imply that the widespread use of announcement effects significantly distorts the assessment of mergers.

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Giving Good Guidance: What Every Public Company Should Know

The following post comes to us from Alexander F. Cohen, partner and co-chair of the national office of Latham & Watkins LLP. This post is based on a Latham & Watkins client alert by Mr. Cohen, Nathan AjiashviliJeff G. HammelSteven B. StokdykKirk A. Davenport II, and Joel H. Trotter; the full publication, including footnotes and annex, is available here.

Every public company must decide whether and to what extent to give the market guidance about future operating results. Questions from the buy side will begin at the IPO road show and will likely continue on every quarterly earnings call and at investor meetings and conferences between earnings calls. The decision whether to give guidance and how much guidance to give is an intensely individual one. There is no one-size-fits-all approach in this area. The only universal truths are (1) a public company should have a policy on guidance and (2) the policy should be the subject of careful thought.

The purpose of this post is to provide an updated discussion of the issues that CEOs, CFOs and audit committee members should consider before formulating a guidance policy.

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Financial Reporting Frequency, Information Asymmetry, and the Cost of Equity

The following post comes to us from Renhui Fu of the Rotterdam School of Management at Erasmus University, Arthur Kraft of the Cass Business School at City University London, and Huai Zhang of the Nanyang Business School at Nanyang Technological University.

In our paper, Financial Reporting Frequency, Information Asymmetry, and the Cost of Equity, forthcoming in the Journal of Accounting and Economics, we examine the impact of financial reporting frequency on information asymmetry and the cost of equity. While it may seem obvious that more frequent disclosures will reduce information asymmetry and the cost of equity, this issue is more complicated. For one, more frequent financial reporting may encourage sophisticated investors to engage in private information acquisitions, resulting in a greater information asymmetry among investors. Alternatively, requiring more frequent reporting may reduce managerial voluntary disclosures, leading to a net loss of information. As such, it is an empirical question.

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