Monthly Archives: April 2013

High Growth Segment: New Route to UK’s Equity Capital Markets

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Tuesday, April 30, 2013
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The following post comes to us from Jeffery Roberts, senior partner in the London office of Gibson, Dunn and Crutcher, and is based on a Gibson Dunn alert by Mr. Roberts, Gareth Jones, and Edward A. Tran. The full text, including tables, is available here.

Since April 2010, companies looking to list in the UK have had a wider choice for listing their shares on the main market for listed securities (the “Main Market”) of the London Stock Exchange plc (the “LSE”). The Main Market is the LSE’s principal market for listed companies from the UK and overseas. There is a choice between a “premium” and a “standard” listing on the UKLA’s Official List. Alternately, there is the option to list on the Alternative Investment Market (“AIM”), on which many smaller and growth companies are traded. [1]

On 27 March 2013, the LSE launched the new High Growth Segment (the “HGS”) of its Main Market and published the final version of the HGS Rulebook. [2] The HGS has been designed for high growth issuers that are seeking a listing on the Main Market due to their size and stage of development. There are some parallels with the US’s relaxation of certain regulatory requirements under the Jumpstart Our Business Startups (JOBS) Act to encourage “emerging growth companies” to list in the US. The HGS is intended to provide issuers with a transitional route to the UKLA’s Official List and, as such, should help issuers prepare for admission to the UK’s listed premium market over time and the obligations that accompany it. Indeed, HGS issuers must “clearly set out their intention” to eventually join the Main Market (if and when they become eligible).

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Navigating Key Dodd-Frank Rules Affecting Swaps End Users

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Tuesday, April 30, 2013
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The following post comes to us from Penelope Christophorou, counsel focusing on commercial financing, secured transactions and bankruptcy law at Cleary Gottlieb Steen & Hamilton LLP. The following post is based on a Cleary Gottlieb memorandum; the full text, including footnotes and appendices, is available here.

Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) enacted a new regime of substantive regulation of over-the-counter (“OTC”) derivatives under U.S. securities and commodities laws. Over the course of 2013, many key provisions of Dodd-Frank are being implemented by the Commodity Futures Trading Commission (the “CFTC”) with respect to “swaps.” While many of the regime’s requirements focus on “swap dealers” (“SDs”) and “major swap participants” (“MSPs”), commercial entities that enter into OTC derivatives transactions to hedge or mitigate risk, referred to as “end users,” will also become subject to a wide range of substantive requirements.

In particular, end users will need to:

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The Regulatory Aftermath of the Global Financial Crisis

Posted by June Rhee, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Tuesday, April 30, 2013
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The following post comes to us from Eilís Ferran, Professor of Company and Securities Law at the University of Cambridge and Niamh Moloney, Professor of Financial Markets Law at the London School of Economics and Political Science.

Some 5 ½ years out from the Autumn 2008 Lehman Brothers collapse, the massive effort by the world’s leading economies to reset the regulation of the financial system is now entering its final stages. The momentum for reform remains strong, particularly with respect to shadow banking. But the main elements of the 2008-2009 G20 regulatory agenda are now in place. In the EU, for example, recent weeks have seen agreement on the Capital Requirements Directive IV, which implements the Basel III agreement and is one of the final elements of the EU’s crisis-era reform programme. Internationally, the regulatory perimeter has extended significantly, new regulatory tools and styles have been developed, and institutional structures have been reformed and replaced. The critical implementation phase is now well underway; the new EU regime has rapidly been intensified by a host of implementing rules; the behemoth US Dodd Frank Act is being subject to similar intensification. The review process is already gathering stream; the EU’s crisis-era short selling regime and its new institutional structure for financial system supervision are both to be reviewed over 2013. It is time to take stock.

In our new book, The Regulatory Aftermath of the Global Financial Crisis we (Eilís Ferran, Niamh Moloney, Jennifer Hill, and John C. Coffee Jr.) examine the forces which have shaped the international regulatory reform process and consider the likely legacy effects of the crisis-era. The book adopts a comparative approach. It examines in detail how the EU and the US – two major world economies heavily affected by the financial crisis – responded to the crisis. But it also considers the Australian experience and probes why the Australian regulatory system and economy proved resilient over the financial crisis and the reforms which it has, nonetheless, experienced. Comparison of these three major economies and how they performed over a period of extreme stress tells us much about the complex regulatory, political and economic ecosystems of which financial markets are a part.

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Responding to Objections to Shining Light on Corporate Political Spending (5): The Claim that Shareholder Proposals Requesting Disclosure Do Not Receive Majority Support

Posted by Lucian Bebchuk, Harvard Law School, and Robert J. Jackson, Jr., Columbia Law School, on
Monday, April 29, 2013
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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 requesting that the SEC require all public companies to disclose their political spending, discussed on the Forum here. Bebchuk and Jackson are also co-authors of Corporate Political Speech: Who Decides? and Shining Light on Corporate Political Spending, coming out this month in the Georgetown Law Journal. This post is the fourth in a series of posts, based on the Shining Light article, in which Bebchuk and Jackson respond to objections to an SEC rule requiring disclosure of corporate political spending; the full series of posts is available here.

In our first four posts in this series (collected here), we examined four objections raised by opponents of mandating disclosure of political spending and explained why these objections provide no basis for opposing such rules. In this post, we focus on a fifth objection raised by opponents of these rules: the claim that the SEC should not require disclosure in this area because shareholder proposals requesting disclosure of corporate spending on politics generally have not received the support of a majority of investors.

Several opponents of the petition have argued that the SEC should not mandate disclosure of corporate political spending because, in many cases, shareholder proposals seeking such disclosure at individual companies are supported by less than a majority of voting shares. For example, Paul Atkins, a former SEC commissioner, argued in a recent article that “majorities of shareholders routinely refuse to support mandatory disclosure” of corporate political spending—and, thus, that shareholders are simply not interested in this information.

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The Separation of Investments and Management

Posted by June Rhee, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Monday, April 29, 2013
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The following post come to us from John Morley, Associate Professor of Law at University of Virginia School of Law.

This paper suggests that the essence of these funds and their regulation lies not just in the nature of their investments, as is widely supposed, but also—and more importantly—in the nature of their organization.

Specifically, every enterprise that we commonly think of as an investment fund adopts a pattern of organization that I am calling the “separation of investments and management.” These enterprises place their securities, currency and other investment assets and liabilities into one entity (a “fund”) with one set of owners, and their managers, workers, office space and other operational assets and liabilities into a different entity (a “management company” or “adviser”) with a different set of owners. Investment enterprises also radically limit fund investors’ control. A typical hedge fund, for example, cannot fire and replace its management company or its employees—not even by unanimous vote of the fund’s board and equity holders.

I explain this pattern of organization and explore its costs and benefits. I argue, paradoxically, that the separation of investments and management benefits fund investors by limiting their control over managers and their exposure to managers’ profits and liabilities.

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Financial Reporting Quality of U.S. Private and Public Firms

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Monday, April 29, 2013
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The following post comes to us from Ole-Kristian Hope, Professor of Accounting at the University of Toronto; Wayne Thomas, Professor of Accounting at the University of Oklahoma; and Dushyantkumar Vyas of the Department of Accounting at the University of Minnesota.

In our paper, Financial Reporting Quality of U.S. Private and Public Firms, forthcoming in The Accounting Review, we use a new database that contains accounting data for a large sample of U.S. private firms and provide an investigation of financial reporting quality (FRQ) of U.S. private versus public firms. Private firms are an important source of economic growth in the United States and elsewhere. In the aggregate, non-listed firms have about four times more employees, three times higher revenues, and twice the amount of assets than do listed firms (Berzins, Bøhren, and Rydland 2008). In 2008, Forbes reported that the 441 largest private companies in the United States accounted for $1.8 trillion in revenues and employed 6.2 million people. Despite their obvious importance to the U.S. economy, there is limited research on private firms in general, and almost no prior research related to the financial reporting quality (FRQ) of such firms.

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Private Equity Firms as Gatekeepers

Posted by June Rhee, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Sunday, April 28, 2013
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The following post comes to us from Elisabeth de Fontenay, a Climenko Fellow at Harvard Law School.

My article, Private Equity Firms as Gatekeepers, identifies an important and overlooked way in which private equity creates value: private equity firms act as gatekeepers in the debt markets. As repeat players, private equity firms establish reputations with lenders that are tied to the credit performance of the companies that they acquire and manage. In turn, private equity firms use their reputations both to certify the creditworthiness of their companies ex ante and to bond against misconduct or poor performance by their companies ex post. Private equity firms thereby mitigate the problems of borrower adverse selection and moral hazard that plague the debt markets. These certification and bonding functions of private equity are best understood as gatekeeping: by causing companies to behave better toward creditors than they otherwise would, private equity firms afford companies access to more capital, and on better terms, than they could otherwise get. The article provides both conceptual and formal proofs of this gatekeeping hypothesis.

The most obvious benefit from private equity’s gatekeeping role is that, all else being equal, it should allow private equity-owned companies to borrow money on better terms than other companies. And crucially, this role will become increasingly valuable in light of sweeping changes in the corporate loan markets. Lenders’ traditional methods of controlling borrower adverse selection and moral hazard – screening, monitoring, and covenants – are in sharp decline. This decline is due to the major shift from relationship banking, in which a company borrows from a single bank that holds the loan until maturity, to syndicated lending. Syndicated loans are funded by large numbers of unrelated creditors and may be traded or securitized to reach still more creditors. As the chain from the borrowing companies to their ultimate creditors lengthens, the information gap between them increases significantly, while creditors’ incentives to monitor their borrowers decline. If private equity firms can credibly fill the void in monitoring left by lenders, their companies will get significantly better financing than other companies.

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Large and Middle Market PE/Public Target Deals: 2012 Review

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Saturday, April 27, 2013
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The following post comes to us from David Rosewater, partner focusing on mergers & acquisitions at Schulte Roth & Zabel LLP. This post is based on a Schulte Roth & Zabel report by Mr. Rosewater, John M. Pollack, and Neil C. Rifkind; the full publication, including charts and appendices, is available here.

Overview

Schulte Roth & Zabel regularly conducts studies on private equity buyer acquisitions of U.S. public companies with enterprise values in the $100 million to $500 million range (“middle market” deals) and greater than $500 million (“large market” deals) to monitor market practice and deal trends reflected by these transactions. During the period from January 2010 to Dec. 31, 2012, there were a total of 40 middle market deals and 50 large market deals that met these parameters.

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Challenges Facing Compliance Officers

Posted by Daniel M. Gallagher, Commissioner, U.S. Securities and Exchange Commission, on
Friday, April 26, 2013
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Daniel M. Gallagher is a Commissioner at the U.S. Securities and Exchange Commission. The following post is based on Commissioner Gallagher’s remarks at the 2013 National Compliance Outreach Program for Broker-Dealers in Washington, DC, which are 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.

First, let me thank you all for taking part in today’s program. Events like this are an invaluable tool for regulators and market participants alike — not least of all because we get to see who the early frontrunners are for the next America’s Funniest Compliance Officer contest. As I’m sure you all know, that’s a real contest that was last held in 2011, although, given that there were only a handful of contestants who turned out to compete, maybe it’s more likely that none of you knew. In case you missed it, the winner brought down the house with a joke about a priest, an Irishman, a Frenchman and Rule 15a-6. It was hysterical — not Reg. M hysterical, but still hysterical.

All joking aside, it is essential that we as regulators and you as compliance officials continue to engage in this type of open dialogue and coordination to promote a robust culture of compliance across the securities industry. Indeed, your work is key to enhancing the Commission’s ability to protect investors and ensure that the markets in which they put their capital to work remain fair and efficient, a result which is in all of our best interests.

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Corporate Short-Termism – In the Boardroom and in the Courtroom

Posted by Mark Roe, Harvard Law School, on
Friday, April 26, 2013
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Mark Roe is the David Berg Professor of Law at Harvard Law School, where he teaches bankruptcy and corporate law.

Last month I posted to SRRN Corporate Short-Termism – In the Boardroom and in the Courtroom, which the Business Lawyer will publish this August.

In this paper, I examine a long-held view in corporate circles has been that furious rapid trading in stock markets has been increasing in recent decades, justifying more judicial measures that shield managers and boards from shareholder influence, so that boards and managers are freer to pursue sensible long-term strategies in their investment and management policies.

However, when I evaluate the evidence in favor of that view, the evidence turns out to be insufficient to justify insulating boards from markets further. While there is evidence of short-term distortions, the view is countered by several under-analyzed aspects of the American economy, each of which alone could trump the board isolation prescription. Together they make the case for further judicial isolation of boards from markets untenable.

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