Yearly Archives: 2013

Tension in Directors’ Views of Corporate Board Diversity

The following post comes to us from Lissa L. Broome and John M. Conley, Wells Fargo Professor of Banking Law and William Rand Kenan Jr. Professor of Law, respectively, at University of North Carolina School of Law, and Kimberly D. Krawiec, Kathrine Robinson Everett Professor of Law at Duke Law School.

Corporate boards lack significant race and gender diversity. The numbers have improved over the years, but have moved relatively little in the last ten years. The percentage of board seats held by women in Fortune 100 companies increased from 14.9% in 2004 to 15.5% in 2010, while the percentage of board seats held by minorities (including female minorities) increased from 16.9% in 2004 to 18% in 2010. There is a great deal of discussion in the popular press about the lack of board diversity and the need for more diverse boards, with some European countries having mandated board gender diversity quotas. We began this project with these numbers as a backdrop and an interest in two related questions: Why do corporate boards pursue diversity (defined in terms of gender, race, and ethnicity)—even to the limited extent that they do—and what difference might diversity make to how boards work? There has been substantial quantitative research on the second of these questions, and the results can fairly be described as mixed.

Our research has employed a qualitative interview strategy to pursue both questions. We have interviewed fifty-seven people with direct experience with corporate boards, as directors, executives, consultants, regulators, or proxy advisors. Fifty of these serve or have served as directors of publicly traded corporations. Using a method rooted in anthropology and discourse analysis, we have worked from a general topic outline and conducted open-ended interviews in which we encouraged respondents to raise and develop issues of interest to them.

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The New York Times on the Shareholder Rights Project

The New York Times published on Sunday an article on the work of the Shareholder Rights Project (SRP). The article, entitled New Momentum for Change in Corporate Board Elections, was written by New York Times columnist Gretchen Morgenson.

Based on a review of the SRP’s results and interviews with the SRP’s clients and the Director of the SRP, the article discusses the benefits produced by the SRP’s work. The article begins with the observation that “shareholder efforts that actually succeed in changing dubious corporate governance policies are so rare that when they happen, it makes you sit up and take notice;” and concludes that “[c]learly, the shareholder project is having a positive effect.” The article expresses the hope that “mutual funds would join this bandwagon or construct their own,” and suggests that “[t]he Shareholder Rights Project is a model they might want to emulate.”

The SRP is a clinical program operating at Harvard Law School. The SRP 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.

The New York Times article stresses that the work of the SRP and its clients during the 2012 and 2013 proxy seasons has produced a large number of board declassifications at large publicly traded firms, moving these companies to annual elections for directors. The article further notes that “[a] far better approach for holding directors accountable, according to a significant body of academic research, is to make them stand for election annually.”

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The Unintended Consequences of Say on Pay Votes

Editor’s Note: Ira Kay is a Managing Partner at Pay Governance LLC. This post is based on a Pay Governance memorandum by Mr. Kay and John Sinkular.

The confluence of Say on Pay (SOP) votes and heightened scrutiny plus the influence of proxy advisory firms (particularly ISS) are having a major unintended consequence—the movement to “one-size-fits-all” or homogenization of executive compensation programs. It is true that SOP votes have encouraged some valid governance enhancements, for example, significantly more shareholder outreach by many large companies. However, in order to minimize the potential for a negative SOP vote outcome, many companies are changing their pay practices based more on potential external views than business/talent needs. This is particularly apparent in the design of performance share plans with the increasing use of relative TSR (at nearly 50% prevalence). Below we summarize other areas of the executive compensation program that are exhibiting homogenization, the resulting risks and potential steps companies can take to preserve/maximize the linkage to a company’s business strategy and talent needs.

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Evidence of CEO Adaptability to Industry Shocks

The following post comes to us from Wayne Guay, Daniel Taylor, and Jason Xiao, all of the Department of Accounting at the University of Pennsylvania.

Prior turnover literature documents various signals of poor performance, such as stock returns and earnings, that lead a board of directors to terminate the CEO, but does not explore the underlying causes of the CEO’s poor performance. In many cases, terminated CEOs have been successful earlier in their tenure as CEO. At some point, however, the board decides that the existing CEO’s skills do not fit with the current leadership needs of the firm, and so switches to a new CEO. The question of why these previously successful CEOs are released (apart from retirements or voluntary departures) remains largely unanswered.

In our paper, Adapt or Perish: Evidence of CEO Adaptability to Strategic Industry Shocks, which was recently made publicly available on SSRN, we conjecture that a previously successful CEO may not be able to adapt when the firms within her industry change their business strategy, or more precisely, that strategic shocks within the industry increase the probability that the CEO will suffer from an adaptability problem. If strategic industry shocks alter a firm’s leadership needs, and the board perceives the CEO cannot adapt their skills to fit those needs, then the CEO is more likely to be terminated. For example, assume a CEO has a set of skills that leads them to prefer to conduct manufacturing activities domestically. When faced with competitive forces that dictate a different strategy, some CEOs may be able to adapt successfully to manage foreign manufacturing operations. Other CEOs, however, may have difficulty adjusting their skills to fit the current strategic needs of the firm. If this is the case, the latter type of CEO will face a higher probability of being terminated when the firm’s industry competitors change their strategies. We note that it is certainly the case that all CEOs can adapt to some degree to changing business conditions. The interesting question then, is whether one can identify the types of shocks, if any, that cause CEO adaptability problems.

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Determinants of Corporate Cash Policy

The following post comes to us from Huasheng Gao of the Division of Banking and Finance at Nanyang Business School; Jarrad Harford, Professor of Finance at the University of Washington; and Kai Li, Professor of Finance at the University of British Columbia.

In our paper, Determinants of Corporate Cash Policy: Insights from Private Firms, forthcoming in the Journal of Financial Economics, we exploit a database of private firms to help understand public firms’ cash policies. It is worth noting that the cash policy of private firms in itself is of great interest to financial economists due to a lack of data prior to our study. Further, the contrast between public and private firm behavior in cash management serves as cross-validation of prior research on cash policies using only public firms. We expect that the variation in agency conflicts across these two groups of firms is likely to be at least as substantial as the variation within public firms. Further, differences across these two groups of firms in financing frictions allow us to explore the relative importance of these two effects on cash levels, the speed of adjustment to target cash, and the dissipation of excess cash.

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Delaware Court Ruling Raises Questions About Informal NYSE Interpretations

The following post comes to us from Robert Buckholz, partner and co-coordinator of the Corporate and Finance Group at Sullivan & Cromwell LLP. This post is based on a Sullivan & Cromwell publication, 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.

Louisiana Municipal Police Employees Retirement System v. Bergstein [1] concerns a $120 million equity grant to the Chief Executive Officer of Simon Property Group, Inc. (“SPG”) and a related amendment to SPG’s stock incentive plan that was required to make the grant. The shareholder plaintiff alleges that the board of directors’ amendment of the plan was a breach of fiduciary duty because the plan mandated shareholder approval of amendments where required by law, regulation or applicable stock exchange rules. The defendants moved to dismiss, noting that SPG had received email confirmation from New York Stock Exchange staff that shareholder approval of the amendment was not required under NYSE rules. Ruling from the bench, Chancellor Leo E. Strine, Jr. denied SPG’s motion to dismiss, citing concerns that a staff email did not serve as a definitive interpretation of NYSE rules – particularly where, in Chancellor Stine’s view, the email to the NYSE did not adequately describe the broader circumstances.

The process SPG used is the customary one by which listed companies receive interpretations from the NYSE staff on governance matters, and Chancellor Strine’s ruling is at an early stage of the case. However, until there is more definitive guidance as to the weight that courts will give NYSE staff interpretations, listed companies should bear in mind the Chancery Court’s ruling when evaluating the weight that a court will give an NYSE email interpretation on a governance matter, particularly when evaluating whether a proposed change to an equity compensation plan would require shareholder
approval.

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Piercing the Corporate Veil

Editor’s Note: The following post comes to us from Michael Hutchinson, partner at Mayer Brown LLP, and is based on a legal update by Mr. Hutchinson and Martin Mankabady.

The Supreme Court’s decision in the case of Petrodel v Prest, handed down June 12, 2013, marks a crucial shift in the extent to which the courts will allow the “piercing of the corporate veil”. Although the case revolved around a matrimonial dispute, it has profound implications for corporate governance.

The Facts

In October 2011, the High Court ruled that Mrs Prest (“W”) was entitled to a divorce settlement of £17.5 million from Mr Prest (“H”), a wealthy oil trader. Since H failed to comply with court orders by failing to give full and frank disclosure of his finances during proceedings, his appeal was dismissed at a preliminary stage. The award therefore stood regardless of later court decisions concerning enforcement.

In terms of enforcement of the award, Moylan J ordered that properties in London and overseas, owned by Petrodel Resources and two other companies (collectively “X”) were assets of H and formed part of the divorce settlement since they were beneficially owned by H as the sole shareholder. Whilst Moylan J found there had been no impropriety in relation to X, so as to permit the corporate veil to be pierced, he nevertheless held that H, exercising complete control over X both in terms of their operation and management, was ‘entitled’ to the relevant properties within the meaning of s24(1)(a) Matrimonial Causes Act 1973 (“MCA”), despite not personally owning the assets.

X appealed to the Court of Appeal, submitting that in order for company assets to become subject to s24(1)(a) MCA, the corporate veil would have to be pierced and this only occurred in exceptional circumstances, this not being one of them.

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Exploring Uncharted Territories of the Hedge Fund Industry

The following post comes to us from Daniel Edelman of Alternative Investment Solutions; William Fung, Visiting Research Professor at the London Business School and Chairman of Maple Financial Group; and David Hsieh, Professor of Finance at Duke University.

It is virtually impossible to obtain accurate historical data on the entire universe of hedge funds. In our paper, Exploring Uncharted Territories of the Hedge Fund Industry: Empirical Characteristics of Mega Hedge Fund Firms, forthcoming in the Journal of Financial Economics, we identify previously unexplored data sources whereby collecting data on fewer than four hundred large hedge fund management firms that do not participate in major commercial databases adds to the observable industry in assets under management (AUM) terms by as much as 34% in 2001 rising to 65% by the end of 2010. Towards the end of our sample period, these nonreporting firms collectively manage US $862 billion of AUM that is missing from the reported US $1,322 billion of AUM managed by firms in the three major commercial databases combined. We manually collect the names and AUMs of large hedge fund firms that do not participate in commercial databases from surveys published by Institutional Investor and Absolute Return+Alpha magazines, which are good sources of information with almost a decade of continuous history. These previously untapped sources of data provide valuable insight into the capital formation process of the industry over the past decade. While commercial databases have successfully depicted data on the growing trend of hedge fund industry’s AUM, from US $278 billion in 2001 to US $1,322 billion in 2010, there is a more important trend in the capital formation process of the industry that has not been considered in the research literature. We show that over this past decade, the AUM of nonreporting mega hedge fund firms has grown from US $118 billion (2001) to US $863 billion (2010). Results point to a rapid growth of mega hedge fund companies opting for privacy dropping out of the voluntary system of reporting to commercial databases. The empirical evidence confirms that a small group of mega hedge fund firms manages the bulk of the assets in the industry. Taken together, this implies that the assets of the hedge fund industry are concentrated in the hands of a small number of mega management firms with rising opacity as their AUM increases.

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The Future in Law and Finance

The following post comes to us from Alessio Pacces, Professor of Law and Finance at the Erasmus School of Law in Rotterdam. The post is based on Professor Pacces’ inaugural lecture for the Chair in Law and Finance at the Erasmus School of Law in Rotterdam. The full text of the lecture is available here.

Traditionally, law and finance has been concerned with investor protection. That would be enough if the future were predictable. However, because the future is in fact uncertain and unpredictable, the prices of financial assets are flawed and in the short run they may result in serious mistakes, if not widespread crises. Although these mistakes are corrected in the long run, a lot of harm may occur in the meantime. Drawing on the experience from the global financial crisis, I argue that financial law should be concerned not only with investor protection, but also with mitigating the temporary excesses of markets in allowing or restricting access to finance.

The challenge of this goal is to remedy market malfunctioning without undermining market discipline. This is possible if central banks backstop banks’ illiquidity during a crisis, provided that regulation preserves the central banks’ incentives to distinguish illiquidity from insolvency. Moreover, in order to prevent the backstop from resulting in moral hazard by financial institutions, regulation should police the incentives of both managers and shareholders. On the one hand, bank managers should not be allowed to cash in the profit of short-term success. On the other hand, corporate law should allow shareholders to commit to the long term via takeover restrictions, granting bankers private benefits of control to complement the deferral of performance pay.

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Good Faith: The New Frontier of Agreements to Negotiate

Douglas P. Warner is a partner and head of US Private Equity and Hedge Fund practices at Weil, Gotshal & Manges LLP. This post is based on a Weil Gotshal alert by Benton B. Bodamer, 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.

Negotiating a term sheet, LOI, or other preliminary document can sometimes feel a bit like the Wild West: local laws and unintended consequences can vary from town to town. Even a concept as seemingly straightforward as agreeing to negotiate in good faith can yield extremely different results depending on jurisdiction. The Delaware Supreme Court’s recent decision in SIGA Technologies, Inc. v. PharmAthene, Inc. is a warning shot to investors and deal makers that, unlike most other states in the US, Delaware will award expectation (i.e., “benefit-of-the-bargain”) damages for the breach of an agreement to negotiate. What this means in practical terms is that, in certain circumstances, failure to fully negotiate a deal based on a non-binding but detailed term sheet could result in full damages as if the parties had actually signed up a deal.

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