Yearly Archives: 2013

The Capital Structure Decisions of New Firms

The following post comes to us from Alicia Robb, Senior Fellow with the Ewing Marion Kauffman Foundation, and David Robinson, Professor of Finance at Duke University.

Understanding how capital markets affect the growth and survival of newly created firms is perhaps the central question of entrepreneurial finance. Yet, much of what we know about entrepreneurial finance comes from firms that are already established, have already received venture capital funding, or are on the verge of going public—the dearth of data on very-early-stage firms makes it difficult for researchers to look further back in firms’ life histories. Even data sets that are oriented toward small businesses do not allow us to measure systematically the decisions that firms make at their founding. This article uses a novel data set, the Kauffman Firm Survey (KFS), to study the behavior and decision-making of newly founded firms. As such, it provides a first-time glimpse into the capital structure decisions of nascent firms.

In our paper, The Capital Structure Decisions of New Firms, forthcoming in the Review of Financial Studies, we use the confidential, restricted-access version of the KFS, which tracks nearly 5,000 firms from their birth in 2004 through their early years of operation. Because the survey identifies firms at their founding and follows the cohort over time, recording growth, death, and any later funding events, it provides a rich picture of firms’ early fund-raising decisions.

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The Landscape of CEO Succession Issues

Brian V. Breheny is a partner at Skadden, Arps, Slate, Meagher & Flom LLP. The following post is based on a Skadden memorandum by Mr. Breheny, Regina OlshanNeil M. LeffMarc S. GerberMichael R. Bergmann.

A board’s decision as to whether, when and how to terminate the employment of a CEO and hire a successor is among the most critical decisions facing the board of any company—large or small, public or private, established or start-up. In most cases, however, a CEO termination is a rare event and one with respect to which—as would be expected—the board, the company’s general counsel and its human resources professionals may have little or no experience. In addition, the situation is further complicated by contractual, regulatory and personal factors.

This post describes the substantive and procedural considerations that boards will want to take into account when there is a change of CEO. In it, we assume that the board has made the business decision relating to CEO succession and is focused on strategy, implementation and minimizing potentially costly and/or embarrassing oversights and errors. Many but not all of the same considerations apply in respect of executive officers other than the CEO, and some additional considerations may apply to such other officers; in any event, their relative significance likely will differ from the case of the CEO.

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Shareholder Proposal Developments During the 2013 Proxy Season

Amy Goodman is a partner and co-chair of the Securities Regulation and Corporate Governance practice group at Gibson, Dunn & Crutcher LLP. The following post is based on a Gibson Dunn alert by Ms. Goodman, Gregory S. Belliston, Elizabeth A. Ising, Gillian McPhee, and Ronald O. Mueller.

Shareholder proposals continued to attract significant attention during the 2013 proxy season. This post provides an overview of shareholder proposals submitted to public companies during the 2013 proxy season, including statistics, notable decisions from the staff (the “Staff”) of the Securities and Exchange Commission (the “SEC”) on no-action requests [1] and other Staff guidance, majority votes on shareholder proposals and litigation seeking to exclude shareholder proposals.

1. Shareholder Proposal Statistics and Voting Results

According to data from Institutional Shareholder Services (“ISS”), shareholders submitted approximately 820 proposals to date for 2013 shareholder meetings, up from approximately 739 proposals submitted for 2012 shareholder meetings. [2] The most common 2013 shareholder proposal topics, along with the approximate number of proposals submitted, were:

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Evidence on the Properties of Retiring CEOs’ Forecasts of Future Earnings

The following post comes to us from Cory Cassell of the Department of Accounting at the University of Arkansas, Shawn Huang of the School of Accountancy at Arizona State University, and Juan Manuel Sanchez of the Department of Accounting at Texas Tech University.

Theory suggests that Chief Executive Officers (CEOs) with short horizons with their firm have weaker incentives to act in the best interest of shareholders (Smith and Watts 1982). To date, research examining the “horizon problem” focuses on whether CEOs adopt myopic investment and accounting policies in their final years in office (e.g., Dechow and Sloan 1991; Davidson et al. 2007; Kalyta 2009; Antia et al. 2010). In our paper, Forecasting Without Consequence? Evidence on the Properties of Retiring CEOs’ Forecasts of Future Earnings, forthcoming in The Accounting Review, we extend this line of research by investigating whether retiring CEOs are more likely to engage in opportunistic forecasting behavior in their terminal year relative to other years during their tenure with the firm. Specifically, we contrast the properties (issuance, frequency, news, and bias) of earnings forecasts issued by retiring CEOs during pre-terminal years (where the CEO will be in office when the associated earnings are realized) with forecasts issued by retiring CEOs during their terminal year (where the CEO will no longer be in office when the associated earnings are realized). We also examine circumstances in which opportunistic terminal-year forecasting behavior is likely to be more or less pronounced.

Our predictions are based on several incentives that arise (or increase) during retiring CEOs’ terminal year with their firm. Specifically, relative to CEOs who will continue with their firm, retiring CEOs face strong incentives to engage in opportunistic terminal-year forecasting behavior in an attempt to inflate stock prices during the period leading up to their retirement. Deliberately misleading forecasts can be used to influence stock prices. Consistent with this argument, prior work shows that managers use voluntary disclosures opportunistically to influence stock prices (Noe 1999; Aboody and Kasznik 2000; Cheng and Lo 2006; Hamm et al. 2012) and that managers use opportunistic earnings forecasts to manipulate analysts’ (Cotter et al. 2006) and investors’ perceptions (Cheng and Lo 2006; Hamm et al. 2012) in an effort to maximize the value of their stock-based compensation (Aboody and Kasznik 2000). Moreover, because SEC trading rules related to CEOs’ post-retirement security transactions are less stringent than those in effect during their tenure with the firm, post-retirement transactions can be made before the earnings associated with the opportunistic forecast are realized and with reduced regulatory scrutiny.

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SEC Forecasts an Increase in Whistleblower Cases and Awards

The following post comes to us from Michael T. Jones, partner in the Litigation Department at Goodwin Procter, and is based on a Goodwin Procter client alert by Mr. Jones and Jennifer Chunias.

On June 12, 2013, the U.S. Securities & Exchange Commission announced its second-ever whistleblower award under the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”). Having received over 3,000 whistleblower tips in the first year of the revamped program, the SEC made its first whistleblower award in August of 2012 and is expected to issue an increasing number of awards in the coming months.

Among other things, Dodd-Frank provides a direct mechanism for whistleblower complaints to the SEC and enhanced protection for eligible whistleblowers who come forward and cooperate in SEC investigations and proceedings involving the corporation that employs them. Dodd-Frank also authorized the SEC to provide incentives in the form of financial awards to eligible whistleblowers who voluntarily provide the SEC with original information about a violation of federal securities laws that leads to successful enforcement proceedings—10 to 30 percent for penalties collected over $1 million. Particularly in light of the recent awards and the expected uptick in the coming months, companies that fail to take appropriate steps to respond to the increased risks associated with the program could pay a steep price.

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The STOCK Act and the Political Intelligence Industry

The following post comes to us from Daniel A. Nathan, partner in the Securities, Enforcement, and White-Collar Defense Group at Morrison & Foerster LLP, and is based on a Morrison & Foerster client alert by Mr. Nathan, Ana-Maria Ignat, and Kevin J. Matta.

Investors who hire political intelligence firms to collect information from government sources should take notice of the Stop Trading on Congressional Knowledge (STOCK) Act, according to panelists at a recent American Bar Association event. The panel, which included Stephen Cohen of the SEC’s Division of Enforcement, gathered in the wake of recent scandals and increased government scrutiny of the political intelligence industry—in particular, the SEC’s investigation of Height Securities, a political research and advisory firm. According to The Wall Street Journal, on April 1, 2013, Height Securities alerted investors to a government decision to reverse funding cuts to certain health-care companies before the agency formally announced its decision. In the 18 minutes before the markets closed, investors traded the suddenly promising health-care stocks, making exorbitant profits.

The STOCK Act

Under the STOCK Act, investors who rely on material, non-public information obtained through government channels can be liable under the federal securities laws for insider trading. Irrespective of the Act, insider-trading laws prohibit trading in securities while in possession of material non-public information obtained in breach of a fiduciary duty. The Act explicitly expanded insider-trading restrictions to members of Congress and legislative branch employees, and made clear that a government employee owes a duty to the United States with respect to material non-public information derived from his or her position.

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Goldilocks, Porridge and General Solicitation

David M. Lynn is a partner and co-chair of the Corporate Finance practice at Morrison & Foerster LLP. This post is based on a Morrison & Foerster client alert by Mr. Lynn, Jay Baris, and Anna Pinedo.

At long last, the U.S. Securities and Exchange Commission (SEC) took action July 10, 2013 to implement rules that complied with the JOBS Act mandate to relax the prohibition against general solicitation in certain private offerings of securities. The original SEC proposal from August 2012, proposing amendments to Rule 506 of Regulation D and Rule 144A under the Securities Act, had drawn significant comments. The final rule, as well as the SEC’s proposed rules relating to private offerings discussed below, are likely to generate additional commentary. One might say that the July 10, 2013 webcast of the SEC’s open meeting provided a glimpse into the too-hot/too-cold Goldilocks-type debate that will continue to play out over the next few months regarding the appropriate balance between measures that facilitate capital formation and investor protection provisions.

In addition to promulgating rules to relax the ban on general solicitation, which will have a significant market impact, the SEC also adopted the bad actor provisions for Rule 506 offerings that it was required to implement pursuant to the Dodd-Frank Act. The bad actor proposal had been released in 2011, and SEC action had been anticipated on the bad actor proposal for some time. The SEC also approved a series of proposals relating to private offerings that are intended to safeguard investors in the new world of general advertising and general solicitation. All told, will these measures encourage or discourage issuers and their financial intermediaries from availing themselves of the opportunity to use general solicitation? Will this new ability to reach investors with whom neither the issuer nor its intermediary have a pre-existing relationship create serious investor protection concerns? Will the proposed investor protection measures be sufficient to address the concerns of consumer and investor advocacy groups, or will we ultimately see revamped investor accreditation standards?

Below we provide a very brief summary of the July 10, 2013 actions.

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The Deterrence Effect of SEC Enforcement Intensity on Illegal Insider Trading

The following post comes to us from Diane Del Guercio of the Department of Finance at the University of Oregon, and Elizabeth Odders-White and Mark Ready, both of the Department of Finance, Investments, and Banking at the University of Wisconsin.

In our paper, The Deterrence Effect of SEC Enforcement Intensity on Illegal Insider Trading, which was recently made publicly available on SSRN, we argue that dramatic changes in insider trading enforcement since the 1980s enable us to empirically identify the effects of more aggressive enforcement on trader behavior and stock price discovery. First, the types of trades that expose individuals to legal liability has broadened in scope since the 1980s, extending far beyond the original principles of those with a fiduciary duty to the stock traded (Nagy, 2009; Bainbridge, 2012). Second, punishments for successfully prosecuted traders have become more severe, while at the same time the amount of resources devoted to enforcement has increased dramatically. For example, the SEC’s budget in real terms is over four-times larger today than it was in the 1980s. Finally, high-profile insider trading cases (e.g., Galleon) and recent developments in SEC enforcement have both received extensive press coverage, suggesting that regulators have been actively signaling their increased enforcement aggressiveness. We posit that traders are aware of these developments and test whether more aggressive SEC enforcement effort deters illegal insider trading and affects price discovery.

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2013 Proxy Season Review

James C. Morphy is a partner at Sullivan & Cromwell LLP specializing in mergers & acquisitions and corporate governance. The following post is based on the executive summary of a Sullivan & Cromwell publication by Glen T. Schleyer; the complete publication, including footnotes, is available here.

The 2013 proxy season saw a continued high rate of governance-related shareholder proposals at large U.S. public companies, including those calling for declassified boards, majority voting in director elections, elimination of supermajority requirements, separation of the roles of the CEO and chair, the right to call special meetings and action by written consent. As in prior years, many of these governance-related proposals received high levels of support, and a number received majority support from shareholders.

In addition, during the 2013 proxy season, U.S. public companies had, on average, slightly better results on their say-on-pay votes. Large-cap companies, in particular, showed an improved ability to avoid negative results, and most companies that failed say-on-pay votes in 2012 received strong support in 2013. These results reflect companies’ increased efforts to engage with shareholders, understand and anticipate their concerns, and communicate the company’s actions and positions.

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District Court Vacates SEC Rule on Resource Extraction Disclosures

The following post comes to us from Edwin S. Maynard and Adam M. Givertz, partners in the Corporate Department at Paul, Weiss, Rifkind, Wharton & Garrison LLP, and is based on a Paul Weiss client memorandum.

On July 2, 2013, the District Court for the District of Columbia vacated Rule 13q-1 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which required resource extraction issuers to disclose payments made to the U.S. Federal government and foreign governments. The District Court found that the Securities and Exchange Commission (the “SEC”) incorrectly interpreted Section 13(q) of the Exchange Act, which mandated the promulgation of Rule 13q-1. A copy of the Court’s decision is available here.

Specifically, the District Court found that Congress did not specifically intend that reports filed under Section 13(q) be publicly disclosed. The District Court wrote: “Section 13(q) requires in subsection (2)(A) disclosure of annual reports but says nothing about whether the disclosure must be public or may be made to the Commission alone. Neither the dictionary definition nor the ordinary meaning of ‘report’ contains a public disclosure requirement. And section 13(q) expressly addresses public availability of information in the following subsection, (3)(A), establishing a different and more limited requirement for what must be publicly available than for what must be annually reported. Topping things off, the Exchange Act as a whole uses the word ‘report’ to refer to disclosures made to the Commission alone.”

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