Yearly Archives: 2013

Court Holds Merger Price Is Reliable Indicator of Fair Value

Posted by William Savitt, Wachtell, Lipton, Rosen & Katz, on
Tuesday, November 5, 2013
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William Savitt is a partner in the Litigation Department of Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell Lipton firm memorandum by Mr. Savitt and David E. Shapiro. 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.

In a thoughtful and well-reasoned decision, the Delaware Court of Chancery held last week that the merger price produced by a “throrough, effective” sales process, “free from any spectre of self-interest or disloyalty,” can be the most reliable indicator of the value of shares in an appraisal proceeding. Huff Fund Investment Partnership v. CKx, Inc., No. 6844-VCG (Del. Ch. Nov 1, 2013).

CKx was a publicly traded corporation with interests in iconic entertainment properties, including the American Idol television show, Elvis Presley Enterprises, and Muhammad Ali Enterprises. In 2011, following an attempted go-private transaction and faced with uncertainty related to the network renewal of American Idol, CKx received several unsolicited bids to purchase the Company for cash. The CKx board retained an independent financial advisor and conducted an expedited process to explore a sale of the Company. Interested bidders were given three weeks to conduct diligence and negotiate a transaction. The Company ultimately received an offer of $5.50 per share from Apollo and an offer of $5.60 from a competing private equity firm. The $5.60 bid, while nominally higher, was not supported by financing commitments and the bidder refused to provide documentation that would have allowed CKx to verify its representations as to financing. In light of the uncertainty surrounding the $5.60 bid, CKx accepted the offer from Apollo notwithstanding its nominally lower purchase price.

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Delaware Court Addresses Post-Merger Breach of Fiduciary Duty Claims

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Tuesday, November 5, 2013
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The following post comes to us from Robert B. Schumer, chair of the Corporate Department at Paul, Weiss, Rifkind, Wharton & Garrison LLP, and is based on a Paul Weiss client memorandum. 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.

In In re Bioclinica, Inc. Shareholder Litigation, the Delaware Court of Chancery (VC Glasscock) dismissed a stockholder suit alleging that the members of a board of directors breached their fiduciary duty of loyalty in a sale process for a transaction that had since closed, and where plaintiffs’ allegations previously had been found insufficient to support a pre-closing motion to expedite. Under those circumstances, the court found the chances of those same allegations surviving a post-closing motion to dismiss to be “vanishingly small.” Moreover, the court reaffirmed that reasonable deal protections, such as no-solicitation provisions, termination fees, information rights, top-up options, and stockholder rights plans, in the context of an otherwise reasonable sales process, are not preclusive and do not, in and of themselves, demonstrate a breach of the duty of care or loyalty. Finally, the court dismissed claims against the acquirer that it aided and abetted the directors’ breach of fiduciary duties because no breach of such duties was found.

As we previously detailed here, BioClinica engaged in an eight-month sale process, which led to a two step tender offer acquisition that closed on March 13, 2013. Before the closing of the tender offer, the court found that plaintiffs’ allegations that the board members had breached their fiduciary duties were not colorable, and the court declined to expedite the litigation (or enjoin the transaction). Such a finding typically leads to a voluntary dismissal by plaintiffs. Here, however, plaintiffs nonetheless chose to pursue this action, and, because the exculpation provisions in the company’s certificate of incorporation absolved the directors from monetary damages arising out of breaches of the duty of care, plaintiffs were forced to allege that the directors breached their duty of loyalty or acted in bad faith.

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Must Salmon Love Meinhard? Agape and Partnership Fiduciary Duties

Posted by June Rhee, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Tuesday, November 5, 2013
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The following post comes to us from Stephen M. Bainbridge, Professor of Law at the UCLA School of Law.

In a 2004 lecture, Jeffrie Murphy noted that “John Rawls claimed that justice is the first virtue of social institutions,” but Murphy went on to ask “what if we considered agape to be the first virtue? What would law then be like?” A variant on Murphy’s question has been chosen as the motivating question for the Law and Love Conference, to be held at Pepperdine University School of Law, on February 7-8, 2014, at which this article will be presented. As propounded by the convokers, the question read “What would law be like if we organized it around the value of Christian love [agape]? What would be the implications for the substance and the practice of law?” This article poses those questions with respect to partnership law.

When I was asked to contribute a paper on business organization law to the Pepperdine conference, the conference call immediately brought to mind Benjamin Cardozo’s opinion in Meinhard v. Salmon, [1] which famously held that a managing partner “put himself in a position in which thought of self was to be renounced, however hard the abnegation.” [2] The parallels between Cardozo’s framing of the partner’s duties and, to cite but one example, Kierkegaard’s formulation of agape, which avers that “[l]ove of one’s neighbor … is self-renouncing love,” [3] are obvious and striking. What then would partnership fiduciary duty law be like if it were organized around the value of agape?

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The (Advisory) Ties That Bind Executive Pay

Posted by the Harvard Law School Forum on Corporate Governance & Financial Regulation, on
Monday, November 4, 2013
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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 article by Mr. Pozen and Theresa Hamacher that originally appeared in the Financial Times.

While shareholders of public companies in the UK and US have been voting on advisory (non-binding) resolutions about executive compensation, those in the Netherlands, Norway and Sweden have been voting on binding resolutions.

This might change. The UK government has proposed moving from advisory to compulsory resolutions on executive pay and, recently, the Swiss approved a referendum directing its parliament to require public companies to hold binding shareholder resolutions over pay.

Based on the available data, however, we do not support a general requirement for all public companies to hold a binding shareholder vote on executive compensation. But if less than a majority of the shares voted at one annual meeting favour a company’s executive compensation plan, then at the next annual meeting, the shareholder vote on that company’s executive compensation plan should be binding.

Let us begin by reviewing the data on advisory resolutions in the US and UK. In the first half of 2012, only 53 US public companies received less than a majority vote on their executive compensation plan. Of these 53, however, 45 gained majority support for their say on pay resolutions in 2013, according to Institutional Shareholder Services.

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SEC Hits ‘Reset’ on Failure to Supervise Liability

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Monday, November 4, 2013
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The following post comes to us from Ivan B. Knauer, co-chair of the Securities and Financial Services Enforcement Group and partner in the White Collar Litigation and Investigations Practice Group of Pepper Hamilton LLP, and is based on a Pepper Hamilton Client Alert by Mr. Knauer and Min Choi.

On September 30, 2013, the U.S. Securities and Exchange Commission (SEC)—quietly, and with little fanfare—released an informal statement of policy in the form of frequently asked questions (FAQ), in which it addressed its recent case against Ted Urban. [1] In doing so, the SEC shed light on when and how the agency will seek to hold legal and compliance personnel responsible for failing to supervise employees on the business side.

As many will recall, the Urban case was closely watched by securities legal and compliance professionals, who worried that a decision by the commissioners could be used by enforcement staff to make such professionals easier targets in future enforcement actions. Ultimately, the commissioners dismissed the case. That said, given the circumstances surrounding the case’s dismissal, legal and compliance officers were left with little guidance as to whether the case against Urban could be used against them to establish supervisor liability.

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Executive Compensation—It Just Won’t Go Away

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Sunday, November 3, 2013
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The following post comes to us from William J. Catacosinos, Senior Partner and Principal at Laurel Hill Advisory Group, and is based on a Laurel Hill publication by Mr. Catacosinos.

Over the last several years executive compensation has been an issue that has received a lot of attention from Wall Street, union pension funds, activists, and others. The Dodd-Frank Say-on-Pay mandate was put in place and early on there was surprising push back from shareholders. There were results that have been tracked about the impact of Say-on-Pay and the support from shareholders over several years that are as follows:

Based on the recent Towers Watson Research of approximately 13,050, roughly 3,000 companies show their positive results on Say-on-Pay in 2013 are up to 90% from 89% in 2012. The percentage of those companies receiving negative ISS board recommendations drop from 13 to 11 percent.

It is clear that company disclosures are better focused on explaining executive compensation generally. This is a result of a conclusion reached by Ning Chiu of Davis Polk, LLP. Companies are also more sensitive about those issues that will raise questions and possibly trigger negative proxy advisory firm recommendations. Clearly, the large companies are responding to shareholder Say-on-Pay concerns and are being advised by their outside counsels on the proper manner of preparing detailed compensation disclosure in their proxy statements. Further, we believe that many of these companies are reaching out to their large institutional investors and having a dialogue with them concerning compensation, getting feedback, and responding appropriately—so progress has been made.

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SEC Enforcement Focusing on Rule 105 of Regulation M

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Saturday, November 2, 2013
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The following post comes to us from John M. Loder, partner and co-head of the Investment Management practice group at Ropes & Gray LLP, and is based on a Ropes & Gray publication by R. Daniel O’Connor, Maria Carboni, and Gina Riccio.

On September 16, 2013, the Securities and Exchange Commission (“SEC”) charged over 20 firms with violations of Rule 105 of Regulation M of the Securities Exchange Act of 1934 (“Rule 105” or “the Rule”), which prohibits the purchase of securities in a secondary offering when the buyer has a short position, as that term is defined in SEC rules, of the same securities established during a specified restricted period. [1] The same day, the SEC’s Office of Compliance Inspections and Examinations (“OCIE”) issued guidance to firms on issues they had observed regarding compliance with Rule 105 and made suggestions to firms as to how to address the relevant risk. These recent cases, and contemporaneous SEC statements on the subject, suggest that the SEC will continue to focus attention on Rule 105 violations in examinations and enforcement inquires. Companies should therefore take steps to ensure that their policies contain appropriate provisions related to Rule 105 and consider training of relevant staff to avoid such issues.

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US Basel III Liquidity Coverage Ratio Proposal

Posted by Margaret E. Tahyar, Davis Polk & Wardwell LLP, on
Friday, November 1, 2013
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Margaret E. Tahyar is a partner in the Financial Institutions Group at Davis Polk & Wardwell LLP. The following post is based on the overview of a Davis Polk visual memorandum; the complete publication, including diagrams, flowcharts, timelines, examples and comparison tables to illustrate key aspects of the US liquidity coverage ratio proposal, is available here.

Overview of U.S. Liquidity Coverage Ratio Proposal

  • The Federal Reserve, OCC and FDIC have issued a proposal to implement the Basel III liquidity coverage ratio (LCR) in the United States.
  • Part of the Basel III liquidity framework, the LCR requires a banking organization to maintain a minimum amount of liquid assets to withstand a 30-day standardized supervisory liquidity stress scenario.
  • The U.S. LCR proposal is more stringent than the Basel Committee’s LCR framework in several significant respects.
  • The U.S. LCR proposal contains two versions of the LCR:
    • A full version for large, internationally active banking organizations.
    • A modified, “light” version for other large bank holding companies and savings and loan holding companies (depository institution holding companies).
  • The proposed effective date is January 1, 2015, subject to a two-year phase-in period.
  • The comment period for the proposal ends on January 31, 2014.

Which Organizations Are Affected?

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ISS Proposes Limited Updates to 2014 Voting Policy

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Friday, November 1, 2013
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The following post comes to us from Sullivan & Cromwell LLP, and is based on a Sullivan & Cromwell publication by Glen T. Schleyer and Marc Trevino.

Institutional Shareholder Services, the influential proxy advisory firm, has published for public comment two proposed changes to its proxy voting guidelines for U.S. companies. The proposals are limited and do not include any change related to the effect of longer board tenure on director independence. ISS had previously surveyed institutional investors and public companies on the topic of director tenure and received strong, but deeply split, responses from both constituencies. The proposed changes are:

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Boards Should Minimize the Role of Proxy Advisors

Posted by James Woolery, Cadwalader, Wickersham & Taft LLP, on
Thursday, October 31, 2013
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James Woolery is Deputy Chairman of Cadwalader, Wickersham & Taft LLP, Co-Chair of its Corporate Department and head of its Business Development Group. The following post is based on a Cadwalader publication by Louis J. Bevilacqua, Co-Chair of the firm’s Corporate Department and the head of its Mergers & Acquisitions and Securities Group.

The boards of public companies are increasingly being assessed by a hoard of short-term focused “activist” investors and an increasingly third-party-advised stockholder base that relies heavily on proxy advisory firms to make important voting decisions for them. It is estimated that over 75 percent of all shares of public companies are held in a managed fund or institutional account.

Institutional Shareholder Services (ISS) and Glass Lewis control 97 percent of the market for proxy advice; and the two dominant proxy advisors reportedly affect 38 percent of votes cast at U.S. public company shareholder meetings. Their dominance in the proxy marketplace not only affects numerous votes but, more importantly, how companies manage and deal with their shareholders. Both firms wield enormous influence without having “skin in the game.” Perhaps even more concerning, given the influence they have on public companies, the proxy advisors (i) are understaffed and therefore establish generic voting recommendations and (ii) profit from engaging in activities involving material conflicts of interest, including marketing their advisory services to many of the same companies for which they provide proxy recommendations. In addition, Glass Lewis is owned by an activist fund with an agenda.

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