Monthly Archives: June 2013

Short-Termism at Its Worst

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Friday, June 14, 2013
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The following post comes to us from Malcolm Salter, Professor of Business Administration at Harvard Business School.

Researchers and business leaders have long decried short-termism: the excessive focus of executives of publicly traded companies—along with fund managers and other investors—on short-term results. The central concern is that short-termism discourages long-term investments, threatening the performance of both individual firms and the U.S. economy.

In the paper, How Short-Termism Invites Corruption…and What To Do About It, which was recently made publicly available on SSRN, I argue that short-termism also invites institutional corruption—that is, institutionally supported behavior that, while not necessarily unlawful, erodes public trust and undermines a company’s legitimate processes, core values, and capacity to achieve espoused goals. Institutional corruption in business typically entails gaming society’s laws and regulations, tolerating conflicts of interest, and persistently violating accepted norms of fairness, among other things.

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Governance Lessons from the Dimon Dust-Up

Posted by Ira M. Millstein, Weil, Gotshal & Manges LLP, on
Thursday, June 13, 2013
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Ira Millstein is a senior partner at Weil, Gotshal & Manges LLP and co-chair of the Millstein Center for Global Markets and Corporate Ownership at Columbia Law School.

The recent shareholder “campaign” by a coalition of large institutional investors – AFSCME Employees Pension Plan, Hermes Fund Managers, the New York City Pension Funds, and the Connecticut Retirement Plans and Trust Funds – sought on its face to pressure the JPMorgan Chase & Co. board of directors to amend the bylaws to require that the role of chair be held by an independent director. It became a referendum on two additional issues: Mr. Dimon’s competence as a manager, and the competence of the board’s oversight of risk management. Unfortunately for “good governance,” the three issues become conflated and lead to harangues, heat, and polar positions by all sides, leading to little that’s instructive. It’s worth separating the issues to seek guidelines for the future.

Thoughtful advocates recognize that the board should have flexibility to determine leadership based on the company’s circumstances and rather than seeking to mandate the practice of independent chairmanship, view it as the appropriate default standard – or presumptive model. Even so, very few advocates of the independent chair model favor stripping an extant CEO/chair of the chair title; rather, they urge boards to consider separation upon CEO succession, unless there is an urgent need.

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How Law Can Address the Inevitability of Financial Failure

Posted by June Rhee, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Thursday, June 13, 2013
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The following post comes to us from Iman Anabtawi, Professor of Law at UCLA School of Law, and Steven L. Schwarcz, Stanley A. Star Professor of Law & Business at Duke University School of Law and Founding/Co-Academic Director of Duke Global Capital Markets Center.

In our forthcoming article, Regulating Ex Post: How Law Can Address the Inevitability of Financial Failure, 92 Texas Law Review (2013), we observe that, unlike many other areas of regulation, financial regulation operates in the context of a complex interdependent system. This, we argue, has implications for financial regulatory policy, especially the choice between ex ante regulation aimed at preventing financial failures and ex post regulation aimed at responding to those failures.

Our article begins by considering the nature of systems and the usefulness of systems analysis as a methodology for studying law. Law-related systems are systems in which the law is an integral element. The financial system can be viewed as a complex network in which financial firms interact directly and indirectly (through markets) against the background of legal rules.

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Lessons from the 2013 Proxy Season

Posted by Martin Lipton, Wachtell, Lipton, Rosen & Katz, on
Wednesday, June 12, 2013
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Martin Lipton is a founding partner of Wachtell, Lipton, Rosen & Katz, specializing in mergers and acquisitions and matters affecting corporate policy and strategy. This post is based on a Wachtell Lipton memorandum by Mr. Lipton, Karessa L. Cain, and Sabastian V. Niles.

1. Shareholder activism is growing at an increasing rate. No company is too big to become the target of an activist, and even companies with sterling corporate governance practices and positive share price performance, including outperformance of peers, may be targeted.

2. “Activist Hedge Fund” has become an asset class in which institutional investors are making substantial investments. In addition, even where institutional investors are not themselves limited partners in the activist hedge fund, several now maintain open and regular lines of communication with activists, including sharing potential “hit lists” of possible targets.

3. Major investment banks, law firms, proxy solicitors, and public relations advisors are representing activists.

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Institutional Investor Lead Plaintiffs in Mergers and Acquisitions Litigation

Posted by June Rhee, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Wednesday, June 12, 2013
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This post comes to us from David H. Webber, an Associate Professor of Law at Boston University. 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.

Transactional class and derivative actions have long been controversial in both the popular and the academic literatures. Some commentators have argued that every deal faces litigation, that the overwhelming majority of such cases are frivolous, that the only people who benefit from them are the lawyers, and that the costs of these suits outweigh their benefits to shareholders. Others have taken the opposite view, that the litigation costs are overblown and that shareholders benefit from such suits. Yet, the debate over this litigation has so far neglected to consider a change in legal technology, adopted in Delaware a decade ago, favoring selection of institutional investors as lead plaintiffs. My article, “Private Policing of Mergers and Acquisitions: An Empirical Assessment of Institutional Lead Plaintiffs in Transactional Class and Derivative Actions,” fills the gap, offering new insights into the utility of mergers and acquisitions litigation. The most significant findings in the paper are that public pension funds and labor union funds have become the dominant institutional players in these cases, and that public pension fund lead plaintiffs correlate with the outcomes of most interest to shareholders: an increase from the offer to the final price, and lower attorneys’ fees.

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Investor Protection Through Economic Analysis

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Tuesday, June 11, 2013
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The following post comes to us from Craig M. Lewis, Chief Economist and Director of the Division of Risk, Strategy, and Financial Innovation at the U.S. Securities & Exchange Commission. This post is based on Mr. Lewis’s remarks at the Pennsylvania Association of Public Employee Retirement Systems Annual Spring Forum, available here. The views expressed in the post are those of Mr. Lewis and do not necessarily reflect those of the Securities and Exchange Commission, the Commissioners, or the Staff.

The mission of the SEC is both straightforward and broad: To protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation. Though none of these objectives exists in isolation-and indeed, they interact and reinforce each other-today I thought I would focus on our primary mission of protecting investors. Specifically, I would like to discuss the role of economic analysis in furthering the Commission’s mission to protect investors and how the public can help the Commission craft regulations that effectively accomplish that goal.

Economic Analysis in Support of Commission Rulemaking

The Division of Risk, Strategy, and Financial Innovation (or “RSFI”) supports the Commission in a variety of ways, but the one that perhaps most directly impacts the investing public is the Division’s role in providing economic analysis in support of Commission rulemaking. And I believe that the economic analysis provided by RSFI is one of the essential elements of how the Commission works to fulfill its mission to protect investors.

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Aligning Incentives at Systemically Important Financial Institutions

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Tuesday, June 11, 2013
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Christopher Small is co-editor of the Harvard Law School Forum on Corporate Governance and Financial Regulation. This post is based on a memo received from members of the Squam Lake Group. The Squam Lake Group is a non-partisan group of academics who offer guidance on the reform of financial regulation. The members of the group include Martin N. Baily of the Brookings Institution, John Y. Campbell of Harvard University, John H. Cochrane of the University of Chicago, Douglas W. Diamond of the University of Chicago, Darrell Duffie of Stanford University, Kenneth R. French of Dartmouth College, Anil K. Kashyap of the University of Chicago, Frederic S. Mishkin of Columbia University, David S. Scharfstein of Harvard University, Robert J. Shiller of Yale University, Matthew J. Slaughter of Dartmouth College, Hyun Song Shin of Princeton University, and René M. Stulz of Ohio State University. The members of the group disclose their outside activities either directly on their web sites or as part of their curriculum vitae, available on their web sites.

UBS recently announced it would pay part of the bonuses of 6,500 highly compensated employees with bonds that would be forfeited if the bank does not meet its capital requirements. Taxpayers should applaud this initiative. Other financial institutions should be rewarded for emulating it.

As the global financial crisis of 2007-2009 reminds us, the impairment of large interconnected intermediaries can have devastating effects on economic activity. This threat can induce governments to bail out distressed financial institutions. The direct costs to taxpayers of these bailouts are apparent. Beyond the direct costs, the prospect of bailouts removes much of the downside risk that the owners and employees of financial institutions should bear, distorting their financing and investment decisions, as well as increasing the likelihood and expected magnitude of future bailouts. The UBS “bonus bonds,” which echo a recommendation we made in The Squam Lake Report (French et al, 2010), mitigate these distortions.

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A Critical Missing Reform Criterion: Regulating “Systemic” Banks

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Monday, June 10, 2013
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This post comes to us from Karen Petrou, co-founder and managing partner of Federal Financial Analytics, Inc., and is based on a presentation of a paper written by Ms. Petrou; the full text, including citations, is available here.

A critical policy question is the extent to which “systemic” banks provide value from an economic or social perspective. Much research has been mobilized to demonstrate this, as well as to counter these findings to argue that the biggest banks enjoy undue subsidies because they are so systemic as to be protected by taxpayers. Markets may indeed perceive some big banks as too big to fail (TBTF), but perception does not make reality. Thus, this paper assesses how a systemic financial institution can be differentiated from others to inform the debate over policy responses to TBTF and pending regulatory actions and U.S. legislation to govern the largest financial institutions. Quite simply, if there are no reliable, objective systemic criteria, then policy based on size thresholds or other “systemic” indicators will be at best ineffective antidotes to global financial crises even as they do unnecessary damage to banks and, more broadly, to financial-market efficiency and effectiveness.

In this paper, we assess the ability of regulators to define the criteria that characterize systemically-important financial institutions (SIFIs). The definition of systemic is critical since an array of rules predicated on the negative externalities of SIFIs is under active development. Further, allegations that “systemic” firms, most notably very large bank holding companies (BHCs), are TBTF have aroused calls for additional, generally punitive action for designated institutions.

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FINRA: Broker-Dealer Email Systems Must Keep Pace with Firm Growth

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Monday, June 10, 2013
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The following post comes to us from Daniel Nathan, partner in the Securities Litigation, Enforcement and White-Collar Defense Group at Morrison & Foerster LLP, and is based on a client alert by Mr. Nathan and Kelley Howes.

A recent FINRA disciplinary action sends a strong message to broker-dealers that the development of their compliance systems—particularly with respect to email review and retention—must keep pace with the growth of their businesses.

FINRA fined LPL Financial LLC (LPL) $7.5 million for significant failures in its email system that prevented LPL from accessing hundreds of millions of emails, and from reviewing tens of millions of other emails over an approximately six-year period. FINRA stressed that LPL’s inadequate systems and procedures caused the firm to provide incomplete responses to email requests from regulators, and also likely affected the firm’s production of emails in arbitrations and private actions. Accordingly, FINRA also required the firm to establish a $1.5 million fund to pay discovery sanctions to customer claimants that were potentially affected by the system failures, and to notify regulators that may have received incomplete email production.

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Downside Risk and the Design of CEO Incentives

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Monday, June 10, 2013
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The following post comes to us from David De Angelis, Gustavo Grullon, and Sebastien Michenaud, all of the Finance Area at Rice University.

In our paper, Downside Risk and the Design of CEO Incentives: Evidence from a Natural Experiment, which was recently made publicly available on SSRN, we investigate how downside risk influences the design of CEOs’ incentives. Studying the relationship between firm risk and managerial incentives is a difficult task due to the endogenous nature of the relationship: empiricists cannot easily disentangle the effect of compensation on risk from the effect of risk on compensation (Prendergast, 2002). We address the identification challenge by exploiting a randomized natural experiment that exogenously increased downside equity risk through the relaxation of short-selling constraints. Because the removal of short-selling constraints may cause an increase – or the fear of an increase – in bear raids and market manipulation by short-sellers (Goldstein and Guembel (2008)), this increase in downside risk potentially exposes managers to losses that are beyond their control. In this scenario, CEOs may sub-optimally reduce the risk of their firms to protect their personal wealth and firm-specific human capital (Amihud and Lev (1981), May (1995)). Consistent with this view, firms and their CEOs display an acute aversion to short-sellers, and go to great lengths to fight them and reduce their influence on stock prices (Lamont (2012)). As a result, firms that maximize shareholder value should respond to an exogenous increase in short selling activity by increasing their CEOs’ risk-taking incentives to avoid sub-optimal risk reduction policies, and/or by immunizing their CEOs against the downside risk that lies outside of their control and does not reflect their performance.

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