Monthly Archives: July 2013

Court Orders Company to Provide Privileged Communications to Dissident Director

The following post comes to us from Michael O’Bryan, partner in the Corporate Department at Morrison & Foerster LLP. This post is based on a Morrison & Foerster Client Alert, and 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.

The Delaware Court of Chancery, in Kalisman v. Friedman (Apr. 17, 2013), ordered the respective counsels for a company and for a special committee of the company’s board of directors to provide to a dissident director copies of their communications with the company’s other directors, as well as internal law firm communications. The dissident director was a member of a large stockholder that had announced an intent to nominate a competing slate of directors at the company’s next annual meeting, and was a member of the special committee as well as of the board. The communications related to actions taken by the board and the special committee that might otherwise be protected from disclosure to third parties by the attorney-client privilege or the work product doctrine.

Background

The opinion arises from the proxy contest and related litigation over Morgans Hotel Group. The dissident director, Kalisman, is a member of a large stockholder, OTK, and was first appointed to the Morgans board early in 2011. Later that year, the board formed a special committee to evaluate strategic alternatives, and Kalisman was put on the committee. No significant alternative was adopted, however, and early this year OTK announced that it would nominate a competing slate of directors for the Morgans board.

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Optimal CEO Compensation with Search: Theory and Empirical Evidence

The following post comes to us from Melanie Cao of the Finance Area at York University and Rong Wang of the Finance Group at Singapore Management University.

Two issues concerning executive compensation deserve particular attention. The first is how a firm’s risk affects the executive’s pay-to-performance sensitivity (hereafter PPS), i.e., the ratio of incentive pay to firm performance. Standard agency models predict that the PPS does not change with the firm’s risk if the agent is risk neutral and decreases with the firm’s risk if the agent is risk averse. Notable examples are Bolton and Dewatripont (2005), Holmstrom (1982), and Murphy (1999). In contrast to this theoretical prediction, the empirical evidence on the effect of the firm’s risk on the PPS is ambiguous. For example, Core and Guay (1999) and Oyer and Shaefer (2005) find a positive relationship while Aggarwal and Samwick (1999) document a negative relationship.

The second issue is the large increase in CEO compensation along with the increase in firm size in the past three decades. This large increase has generated an intense debate in the public and the academia on whether CEOs are over-compensated. Although the increase in firm value contributed partly to the increase in CEO pay, a closer look at the data reveals two notable features (see section IV for a detailed description of the data). First, incentive pay, which is the predominant component of CEO pay, has increased more rapidly than the increase in firm value. From 1994 to 2009, median incentive pay increased by 244% in real terms, compared with a 40% increase in median firm value, and its share in total pay increased from 41% to 78.8%. Second, and related to the first feature, total CEO pay outpaced firm value. The ratio between CEO pay and firm value increased from $1.59 in 1994 to $1.73 in 2009 per a thousand dollars. These features suggest that the key to understanding the increase in CEO compensation is to understand what factors determine the PPS.

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Court of Chancery Criticizes Recommendation Provision in Merger Agreement

Allen M. Terrell, Jr. is a director at Richards, Layton & Finger. This post is based on a Richards, Layton & Finger publication, and is part of the Delaware law series, which is co-sponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

In In re NYSE Euronext Shareholders Litigation, C.A. No. 8136-CS (Del. Ch. May 10, 2013) (TRANSCRIPT), Chancellor Strine of the Court of Chancery, ruling from the bench following oral argument, declined to enjoin preliminarily a stockholder vote on the proposed merger between NYSE Euronext (“NYSE”) and IntercontinentalExchange, Inc. (“ICE”). The Court found that plaintiffs had not established any of the necessary elements for injunctive relief, but nonetheless criticized a provision in the merger agreement that restricted the NYSE board’s ability to change its recommendation when faced with a partial-company competing bid.

The proposed $9.5 billion merger between NYSE and ICE offered NYSE stockholders a mix of cash and stock valued at $33.12 per share. The stock portion of the consideration represented 67 percent of the total consideration offered to NYSE’s stockholders. Based on the Delaware Supreme Court’s decision in In re Santa Fe Pacific Corp. Shareholder Litigation, 669 A.2d 59 (Del. 1995), the Court rejected plaintiffs’ argument that Revlon applied to the mixed-consideration deal. After concluding that Revlon did not apply, the Court considered the reasonableness of the board’s process and concluded that plaintiffs did not have a reasonable probability of success on the merits.

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Communicating Private Information to the Equity Market before a Dividend Cut

The following post comes to us from Thomas Chemmanur, Professor of Finance at Boston College, and Xuan Tian of the Department of Finance at Indiana University.

How should firms communicate with the capital market in advance of corporate events? If firm insiders receive some private information that their firm may perform poorly in the near future, should they inform investors about this adverse information as soon as possible, or should they wait to release this information? Further, is the manner of communication by firms related to their performance in the short or the long run?

A concrete example of the above situation is that of a firm contemplating a dividend cut in the future. Firm insiders may have received some private information about a potential decline in future earnings, or that the current level of dividends is unsustainable for some other reasons (e.g., a change in the competitive environment requiring it to retain more cash within the firm). Under these circumstances, should insiders release a statement to the market that they are reviewing the firm’s dividend policy, and indicating that there is a possibility of a dividend cut (in other words, “prepare” the market)? Or should they wait till they in fact decide to cut their firm’s dividends before making any announcement?

While there have been several theoretical as well as empirical analyses of dividend signaling (see, e.g., Bhattacharya (1979), John and Williams (1985), and Miller and Rock (1985) for theoretical models), unfortunately, there has been no systematic empirical analysis so far in the literature that provides guidance to decision makers regarding the right way to communicate adverse private information to the equity market. The objective of this paper is to fill this gap in the literature by providing the first empirical analysis of a firm’s choice between preparing and not preparing the market before a dividend cut and the consequences of market preparation.

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SEC and Revlon Settle Allegations of Deceptive Acts

The following post comes to us from Michael D. Trager, senior partner at Arnold & Porter LLP and chair of the firm’s Securities Enforcement Practice. This post is based on an Arnold & Porter memorandum.

On June 13, 2013, the Securities and Exchange Commission (SEC) announced that it had reached a settlement with Revlon, Inc. (Revlon) regarding allegations that Revlon deceived minority shareholders in connection with a 2009 “going private” transaction. [1] Under Section 13(e) of the Securities Exchange Act of 1934 and Rule 13e-3 thereunder issuers are prohibited from taking fraudulent or deceitful actions in connection with a “going private” transaction. The SEC’s rules for “going private” transactions require disclosure, among other things, of any report, opinion, or appraisal from an outside party that is materially related to the transaction. [2] The SEC alleged that Revlon engaged in a variety of deceptive acts in order to avoid disclosure of a third-party financial advisor’s determination that the “going private” transaction would not provide adequate consideration for minority shareholders. Revlon did not admit or deny the SEC’s findings set forth in the cease-and-desist order, but agreed to cease and desist from committing any future violations and to pay an $850,000 penalty. Section 13(e) of the Securities Exchange Act of 1934 and Rule 13e-3 thereunder have rarely been the subject of SEC enforcement action. This settlement may signal that, just as the Staff of the Enforcement Division of the SEC is more generally expanding its enforcement reach into the area of private equity firms — which are often involved in going private transactions—its enforcement priorities may also be expanding into areas that have been historically addressed by private litigants in civil actions brought under state corporate fiduciary law.

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CEO Compensation and Fair Value Accounting

The following post comes to us from Ron Shalev of the Department of Accounting at New York University, Ivy Zhang of the Department of Accounting at the University of Minnesota, and Yong Zhang of the School of Accounting and Finance at Hong Kong Polytechnic University.

In our paper, CEO Compensation and Fair Value Accounting: Evidence from Purchase Price Allocation, forthcoming in the Journal of Accounting Research, we investigate the influence of bonus intensity (i.e., the relative importance of bonus in CEO pay) and alternative accounting performance measures used in bonus plans on the allocation of purchase price post acquisitions. Upon the completion of an acquisition, the acquirer is required to allocate the cost of acquiring the target to its tangible and identifiable intangible assets and liabilities based on their individually estimated fair values. The remainder, namely, the difference between the purchase price and the fair value of net identifiable assets, is recorded as goodwill. The recognition of goodwill has different implications for subsequent earnings than that of other assets. Tangible and identifiable intangible assets with finite lives, such as developed technologies, are depreciated or amortized, depressing earnings on a regular basis. In contrast, goodwill is unamortized and subject to a periodic fair-value-based impairment test. As write-offs of goodwill impairment are infrequent (Ramanna and Watts, 2009), recording more goodwill generally leads to higher post-acquisition earnings.

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Facilitating General Solicitation at the Expense of Investors

Editor’s Note: Luis A. Aguilar is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on Commissioner Aguilar’s statement at a recent open meeting of the SEC; the full text, including footnotes, is available here. The views expressed in the post are those of Commissioner Aguilar and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

Today [July 10, 2013], among other things, the Commission considers amendments to Rule 506 of Regulation D, to remove the prohibition against general solicitation and advertising, if sales are made only to accredited investors. I do not support this action because both the process followed in proposing the amendments and the actual amendments being considered today come at the expense of investors and place investors at greater risk. I am particularly disappointed because this flies in the face of the Commission’s mission and did not have to be the case.

The Commission has both the Authority and the Obligation to Protect Investors in Implementing JOBS Act Section 201

Last year, Congress passed the Jumpstart Our Business Startups Act (“JOBS Act”). Section 201(a) of the JOBS Act requires the Commission to revise Rule 506 to remove the prohibition against general solicitation and general advertising, provided that all the purchasers in the offering are accredited investors.

It is without doubt the responsibility of the Commission to implement Section 201 of the JOBS Act. It is equally without doubt that this responsibility cannot be separated from the Commission’s duty to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation. Congress established the Commission as the independent agency with the expertise and authority to administer the federal securities laws. By statute, the Commission has the power to make, amend, and rescind the rules and regulations needed from time to time to carry out the provisions of such laws.

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Be Wary of the Path to the Business Judgment Rule

Victor Lewkow is a partner at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary Gottlieb memorandum by Mr. Lewkow, Ethan Klingsberg, and Neil Whoriskey, and is part of the Delaware law series, which is co-sponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

Chancellor Leo Strine’s opinion in In re MFW Shareholders Litigation (Del Ch. May 29, 2013) marks the culmination of an effort by the Chancellor, going back to his lengthy dicta in In re Cox Communications Shareholders Litigation (Del Ch. 2005), to arrive at a more unified standard for review of buy-outs of a company’s public float by a controlling stockholder. The headline conclusion is that, assuming this decision is not reversed by the Delaware Supreme Court on appeal, controlling stockholder buyouts structured as negotiated mergers may now join controlling stockholder buyouts that take the form of unilateral tender offers in having available a theoretical path that permits challenges to be dismissed on pre-trial motions.

About ten years ago, a series of Chancery Court opinions, the most prominent of which was then-Vice Chancellor Strine’s opinion in In re Pure Resources Shareholders Litigation (Del. Ch. 2002), laid out safeguards that would qualify a unilateral tender offer by a controlling stockholder as non-coercive and entitled to dismissal of challenges based on pleadings prior to a trial or an evidentiary hearing. The most important of these safeguards were the presence of both:

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Externalities of Public Firm Presence

The following post comes to us from Brad Badertscher of the Department of Accountancy at the University of Notre Dame, Nemit Shroff of the Accounting Group at MIT, and Hal White of the Department of Accounting at the University of Michigan.

In our paper, Externalities of Public Firm Presence: Evidence from Private Firms’ Investment Decisions, forthcoming in the Journal of Financial Economics, we examine whether greater public firm presence in an industry can increase the responsiveness of firms’ investment to investment opportunities by enriching the industry’s information environment, thereby reducing uncertainty. The intuition is that as more firms in an industry publicly disclose information and receive coverage by information intermediaries, a more complete perspective of the current economic environment and future outlook for the industry emerges. This reduction in industry uncertainty can then be used by peer firms in the industry to make more informed investment decisions. Our analysis is based on the theoretical predictions of investment under uncertainty, which indicates that when investment decisions are (even partially) irreversible, firms become cautious and hold back on investment in the face of uncertainty (e.g., Dixit and Pindyck, 1994). As a result, higher uncertainty leads to a reduction in firms’ responsiveness to investment opportunities (Bloom, Bond, and Van Reenen, 2007; Julio and Yook, 2012). If greater public firm presence leads to lower uncertainty in the industry, firms operating in that industry are likely to be more responsive to investment opportunities.

Using a novel data set of private U.S. firms created by Sageworks Inc., we investigate whether private firms operating in industries with greater public firm presence are more responsive to their investment opportunities than those operating in industries with lower public firm presence. Following Hubbard (1998), we interpret the responsiveness of investment to investment opportunities as a proxy for investment efficiency, where investment is measured as the change in gross fixed assets (Asker, Farre-Mensa, and Ljungqvist, 2012) and investment opportunities is measured using lagged sales growth (Wurgler, 2000; Whited, 2006; Bloom, Bond, and Van Reenen, 2007). We proxy for public firm presence in an industry using the percentage of industry sales that are generated by public firms.

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The Shareholder Rights Project’s Mid-Year Update

Editor’s Note: Lucian Bebchuk is the Director of the Shareholder Rights Project (SRP), Scott Hirst is the SRP’s Associate Director, and June Rhee is the SRP’s Counsel. The SRP, a clinical program operating at Harvard Law School, works on behalf of public pension funds and charitable organizations seeking to improve corporate governance at publicly traded companies, as well as on research and policy projects related to corporate governance. Any views expressed and positions taken by the SRP and its representatives should be attributed solely to the SRP and not to Harvard Law School or Harvard University. The work of the SRP has been discussed in other posts on the Forum available here.

In a news alert released yesterday, the Shareholder Rights Project (SRP), working on behalf of eight SRP-represented investors, announced the substantial results of the work by the SRP and SRP-represented investors during the first six months of 2013, as well as the aggregate impact of their work during 2012 and 2013.

Produced Large-Scale Reforms: As a result of the work of the SRP and SRP-represented investors, 77 S&P 500 and Fortune 500 companies declassified their boards of directors during 2012 or the first half of 2013. The companies that declassified:

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