Monthly Archives: February 2013

Mergers and Acquisitions — 2013

Andrew R. Brownstein is a partner in the Corporate Department at Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell Lipton firm memorandum by Mr. Brownstein, Steven A. Rosenblum, Adam O. Emmerich, Mark Gordon, Gordon S. Moodie and Eitan Hoenig.

As we enter 2013, a number of signs – including the strong finish to 2012, macroeconomic factors that appear to be reducing business uncertainty, and intensifying competition in many critical sectors – provide cause for optimism that the breadth and depth of M&A activity will be significantly greater in the coming year than in 2012. Global M&A activity dropped 17.4% in the first three quarters of 2012 compared to the comparable period of 2011, reflecting the European sovereign debt crisis, political uncertainty in the United States and slower economic growth in China and India. But M&A activity turned sharply upward in the fourth quarter: Global announced deal volume for the quarter was the highest in four years, and a number of transformative transactions were announced, including Freeport McMoRan Copper & Gold’s $9 billion acquisitions of Plains Exploration Company and McMoRan Exploration, and ICE’s $8.2 billion acquisition of NYSE Euronext.

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2012 Top General Counsel Compensation Report

The following post comes to us from David Chun, CEO and founder of Equilar, and is based on the executive summary of Equilar’s 2012 In-Depth Top General Counsel Compensation Report; the full publication is available here.

Companies face a growing number of legal challenges, from patent wars to increased regulation from bills like Dodd-Frank to highly scrutinized mergers and acquisitions. With all these challenges the services of General Counsels cannot be undervalued in today’s economic climate. The General Counsel’s role has grown in dimension as companies have an increasing need for their top legal officer to set patent strategy, protect the company from harmful litigation while also overseeing increasingly complex legal aspects of M&A transactions. Although typically among a company’s leading executives, often reporting directly to the Chief Executive Officer, compensation for General Counsels is not always included in proxy statements.

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Basel Committee Revises Basel III Liquidity Coverage Ratio

This post is based on a Davis Polk publication by Luigi L. De Ghenghi, Andrew S. Fei and other Davis Polk attorneys; the full version, including annexes, is available here.

The Basel Committee has made significant revisions to the Basel III Liquidity Coverage Ratio (“LCR”). The revised LCR standards allow banks to use a broader range of liquid assets to meet their liquidity buffer and relax some of the run-off assumptions that banks must make in calculating their net cash outflows. The revised standards also clarify that banks may dip below the minimum LCR requirement during periods of stress. The Basel Committee expects national regulators to implement the LCR on a phased-in basis beginning on January 1, 2015. The Basel Committee will also press ahead with its review of the Basel III Net Stable Funding Ratio (“NSFR”).

While the Federal Reserve has expressed its intent to implement some version of the LCR and other Basel III liquidity standards in the United States, the scope, timing and nature of U.S. implementation is currently unclear. This memorandum and the accompanying tables explore key aspects of the revised LCR standards and issues relating to their implementation in the United States.

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New Board Challenges for Global Governance

The following post comes to us from Wayne Lord, president of the World Affairs Council of Atlanta. This post is based on a white paper report from the 2012 Global Strategic Leadership Forum by Dr. Lord, available here.

The second set of meetings in the World Affairs Council of Atlanta’s Global Strategic Leadership Forum series focused on the new challenges facing the boards of directors of contemporary global companies. Setting the stage for the Forum’s discussions was the recognition of the huge changes that have taken place as a result of globalization in tandem with the world financial crisis and economic slow-down. The premise of the Forum was that the expanding and complex issues facing global companies today require a re-examination of the wide set of risks generated by global expansion and the complicated and dynamic matrix of the regulatory environment. These developments have dramatically impacted the relationship between the board and the chief executive officer as they determine strategic direction for the company – a role that is increasingly becoming a joint responsibility.

The general consensus of the Forum’s participants was that in today’s business environment, a global company board needs to ask itself if it is doing all it can and should to evaluate the complicated new risks facing the company, while ensuring that the goals for growth and profitability remain a critical focus. Complicating this escalating level of risk are the increasingly onerous and complex regulatory frameworks, imposed not only by the United States, but by other sovereign jurisdictions. The Forum participants confirmed that many of these regulations have global reach and the Board of Directors has specific oversight responsibility, thus vastly increasing the amount of information that must be examined at the Board level.

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Preserving Balance in Corporate Governance

Holly J. Gregory is a corporate partner specializing in corporate governance at Weil, Gotshal & Manges LLP. This post is based on a Weil Gotshal alert by Ms. Gregory, Ira Millstein and Rebecca Grapsas.

In our annual missive last year, we wrote about the need to restore trust in our system of corporate governance generally and in relations between boards of directors and shareholders specifically. We continue to be troubled by the tensions that have developed over roles and responsibilities in the corporate governance framework for public companies. The board’s fundamental mandate under state law – to “manage and direct” the operations of the company – is under pressure, facilitated by federal regulation that gives shareholders advisory votes on subjects where they do not have decision rights either under corporate law or charter. Some tensions between boards and shareholders are inherent in our governance system and are healthy. While we are concerned about further escalation, we do not view the current relationship between boards and shareholders as akin to a battle, let alone a revolution, as some media rhetoric about a “shareholder spring” might suggest. However, we do believe that boards and shareholders should work to smooth away excesses on both sides to ensure a framework in which decisions can be made in the best interests of the company and its varied body of shareholders.

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Second Circuit Rules on Short-Swing Profit

The following post comes to us from Lewis Liman, partner focusing on commercial litigation at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary Gottlieb memorandum by Mr. Liman and Jennifer Kennedy Park.

On January 7, 2013, the Second Circuit Court of Appeals ruled that Section 16(b) of the Securities Exchange Act of 1934, which provides for the disgorgement of profits that corporate insiders realize “from any purchase and sale, or any sale and purchase, of any equity security” of the corporate issuer within any period of less than six months (the “short-swing profit rule”), does not apply to a corporate insider’s purchase and sale of shares of different types of stock in the same company where those securities are separately traded, nonconvertible stocks that have different voting rights. Gibbons v. Malone, No. 11 Civ. 3620, 2013 U.S. App. LEXIS 398 (2d Cir. Jan. 7, 2013). Throughout its analysis, the court characterized § 16(b) as a blunt, mechanical rule that prioritizes ease of enforcement over maximum deterrence. Acknowledging the policy reasons for a more flexible interpretation of the rule, the Second Circuit invited the SEC to consider interpreting the short-swing profit rule to cover “similar” equity securities.

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Do Outside Directors Face Labor Market Consequences?

Steven M. Davidoff is an Associate Professor of Law and Finance at Ohio State University College of Law, Andrew Lund is an Associate Professor of Law at Pace University School of Law and Robert J. Schonlau is an Assistant Professor of Finance at Brigham Young University.

Do directors face consequences for their poor performance?  We examine this question in Do Outside Directors Face Labor Market Consequences? A Natural Experiment from the Financial Crisis, a draft of which we recently posted to the SSRN.

We theorize that the exogenous shock of the financial crisis made shareholders and regulators particularly attuned to financial firm performance. We thus use the financial crisis as a natural experiment to study labor market consequences for outside directors at banks and other financial companies. In particular, we explore the question of whether shareholders and regulators acted to penalize directors for poor firm performance during the financial crisis.
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