Monthly Archives: January 2014

Bebchuk Leads SSRN’s 2013 Citation Rankings

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Monday, January 13, 2014
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Statistics released publicly by the Social Science Research Network (SSRN) indicate that, as was the case for each of the six preceding years, Professor Lucian Bebchuk led SSRN citation rankings at the end of 2013. As of the end of December 2013, Bebchuk ranked first among all law school professors in all fields both in terms of the total number of citations to his work and in terms of the total number of downloads of his work on SSRN.

Bebchuk’s papers (available on his SSRN page here) have attracted a total of more than 4,000 citations. His top ten papers in terms of citations are as follows:

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Interlocking Board Seats and Protection for Directors after Schoon

Posted by Michal Barzuza, University of Virginia School of Law, on
Monday, January 13, 2014
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Michal Barzuza is Caddell & Chapman Professor of Law at University of Virginia School of Law. This post is based on a paper co-authored by Professor Barzuza and Quinn Curtis of University of Virginia School of Law. 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.

In a new paper, Interlocking Board Seats and Protection for Directors after Schoon, we examine how interlocking board seats propagated corporate governance change in the aftermath of a surprising change in law. We identify firms’ response to the Delaware case Schoon v. Troy Corp which permitted a board to alter indemnification arrangements for a former director retroactively. We find that interlocking outside directorships played a role in predicting whether firms changed their indemnification arrangements after Schoon. We also identify other covariates associated with responsiveness: (i) a large proportion of outside directors; (ii) a designated independent lead director, and (iii) more board meetings in executive session are all associated with increased probability of response. It is surprising that outside director interlocks should determine response when information about the case was widely available to the public at large and to in-house counsels in particular.

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Valuing Private Equity

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Sunday, January 12, 2014
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The following post comes to us from Morten Sorensen and Neng Wang, both of the Finance and Economics Division at Columbia Business School, and Jinqiang Yang of Shanghai University of Finance and Economics.

In our recent NBER working paper, Valuing Private Equity, to value PE investments, we develop a model of the asset allocation for an institutional investor (LP). The model captures the main institutional features of PE, including: (1) Inability to trade or rebalance the PE investment, and the resulting long-term illiquidity and unspanned risks; (2) GPs creating value and generating alpha by effectively managing the fund’s portfolio companies; (3) GP compensation, including management fees and performance-based carried interest; and (4) leverage and the pricing of the resulting risky debt. The model delivers tractable expressions for the LP’s asset allocation and provides an analytical characterization of the certainty-equivalent valuation of the PE investment.

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The Performance of Secondary Buyouts

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Saturday, January 11, 2014
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The following post comes to us from François Degeorge, Professor of Finance, Swiss Finance Institute, University of Lugano (USI); Jens Martin, Assistant Professor of Finance at the University of Amsterdam; and Ludovic Phalippou, Associate Professor of Finance at the University of Oxford Saïd Business School.

In the past two decades, private equity buyout transactions have grown from a niche phenomenon to a ubiquitous form of corporate ownership (e.g., Strömberg, 2008). Traditionally buyouts have involved private equity funds buying companies or divisions from families or conglomerates: such transactions are known as primary buyouts (PBOs). A major trend accompanying the growth of private equity has been the rise of secondary buyouts (SBOs): transactions in which a private equity fund buys a company from another private equity fund. In our paper, The Performance of Secondary Buyouts, which was recently made publicly available on SSRN, we compare buyer returns in SBOs and PBOs.

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Communications Challenges at the New Frontiers of Corporate Governance Activism

Posted by Charles Nathan, RLM Finsbury, on
Friday, January 10, 2014
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Charles Nathan is partner and head of the Corporate Governance Practice at RLM Finsbury. This post is based on an RLM Finsbury commentary by Mr. Nathan.

The principal corporate governance campaigns of the past decade have reached a plateau in terms of both investor commitment and implementation. These governance issues (such as majority voting, de-classifying staggered boards, eliminating super-majority votes and executive compensation excesses) are not by any means going away. Indeed, there are concerted investor-led efforts to push favored corporate governance “best practices” down the corporate chain to mid-cap and small-cap companies. However, the activist community has clearly won the policy battles surrounding these governance principles, and their “sizzle” is dissipating.

Policy stasis does not become corporate governance activism, as its very name implies. Corporate governance activists will develop new “green fields” to plow; otherwise they risk becoming irrelevant. The question is not whether corporate governance activists will move on but rather where they will go.

While there are a number of possible new foci, two stand out in particular:

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Do Directors from Related Industries Help Bridge the Information Gap?

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Friday, January 10, 2014
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The following post comes to us from Nishant Dass of the Finance Area at Georgia Institute of Technology; Omesh Kini, Professor of Finance at Georgia State University; Vikram Nanda, Professor of Finance at Rutgers University; Bünyamin Önal of the Department of Finance at Aalto University; and Jun Wang of the Department of Economics and Finance at Baruch College.

Directors have two complementary functions in a firm: that of monitoring and offering strategic advice. Directors with current expertise in the firm’s own industry have the requisite information and therefore are clearly suited to perform these functions effectively. However, antitrust laws prohibit firms from having directors from other firms that compete in the same product market. Given these constraints, “directors from related industries” (DRIs) are well-positioned to perform these critical functions, particularly when firms face a severe information gap vis-à-vis their related upstream and downstream industries. For instance, DRIs can improve a firm’s ability to respond to demand/supply shocks or forecast trends in related upstream/downstream industries. They can also help shrink the information gap between the firm’s board and its managers regarding conditions in related industries, thereby enhancing the board’s ability to monitor managerial performance.

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M&A Executive Compensation Enhancements and Impact on the Say-on-Golden-Parachute Vote

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Thursday, January 9, 2014
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The following post comes to us from Sullivan & Cromwell LLP, and is based on a Sullivan & Cromwell publication by Matthew M. Friestedt, Marc Trevino, and Jane Y. Wang.

We have reviewed the 365 merger agreements that were announced during the two years after the “Say-on-Golden-Parachute” vote rule went into effect on April 25, 2011 and that were subject to the rule. [1] We found that 39 companies (11% of the total) substantively enhanced executive compensation arrangements in connection with the transactions.

Some of the more common executive compensation enhancements, which generally did not result in negative vote recommendations from Institutional Shareholder Services (“ISS”), were: granting deal closing bonuses (in 17 deals), granting retention bonuses (in 16 deals) and granting additional equity awards that vest on or post-closing (in 13 deals). However, the following executive compensation enhancements generally did result in negative vote recommendations from ISS: granting new excise tax gross-ups (three out of four deals received negative ISS recommendations), cashing-out severance or converting severance into a retention bonus without an actual termination of employment (five out of eight deals received negative ISS recommendations) and accelerating the vesting of equity awards when the stated performance hurdles were not achieved or were artificially low (five out of six deals received negative ISS recommendations).

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Law, Bubbles, and Financial Regulation

Posted by June Rhee, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Thursday, January 9, 2014
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The following post comes to us from Erik F. Gerding of the University of Colorado Law School.

Five years after the failure of Lehman Brothers, asset price bubbles remain in forefront of the public imagination. Commentators see potential bubbles from Bitcoin to Chinese real estate. Three articles in this week’s edition of the Economist examine whether bubble are afflicting various economies and markets. This year’s Nobel prizes in economics brought to the forefront questions of market efficiency and whether bubbles exist.

My new book, Law, Bubbles, and Financial Regulation, looks at the often overlooked legal dimensions of bubbles. The book examines how market frenzies and regulatory interact in powerful and often destructive ways. (You can read the first chapter of the book, published by Routledge in November, here). Feedback between market and legal dynamics leads to a pernicious outcome: financial regulation can fail when it is needed the most. The dynamics of asset price bubbles weaken financial regulation just as financial markets begin to overheat and the risk of crisis spikes. At the same time, the failure of financial regulations adds further fuel to a bubble.

The book examines the interaction of bubbles and financial regulation through the history of over three centuries of financial frenzies and crises. This perspective reveals that law is crucial to the story of bubbles and that the legal history of the current global crisis has many forerunners. Bubbles involve more than irrational exuberance or low interest rates. Financial law and legal change play critical roles in the severity and consequences of bubbles. The book explores the ways in which bubbles lead to the failure of financial regulation by outlining five dynamics, which it collectively labels the “Regulatory Instability Hypothesis” (with apologies to Hyman Minsky). These five dynamics include:

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SEC Proposes Rules to Update Regulation A

Posted by Toby Myerson, Paul, Weiss, Rifkind, Wharton & Garrison LLP , on
Wednesday, January 8, 2014
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Toby Myerson is a partner in the Corporate Department at Paul, Weiss, Rifkind, Wharton & Garrison LLP and co-head of the firm’s Global Mergers and Acquisitions Group. The following post is based on a Paul Weiss memorandum.

On December 18, 2013, the Securities and Exchange Commission (“SEC”) voted to propose amendments to its public offering rules to exempt an additional category of small capital raising efforts as mandated by Title IV of the Jumpstart Our Business Startups Act (the “JOBS Act”). The SEC has proposed to amend Regulation A to exempt offerings of up to $50 million within a 12-month period, and in so doing has created two tiers of offerings under Regulation A: Tier 1, for offerings of up to $5 million in any twelve-month period, and Tier 2, for offerings of up to $50 million in any twelve-month period. Rules regarding eligibility, disclosure and other matters would apply equally to Tier 1 and Tier 2 offerings and are in many respects a modernization of the existing provisions of Regulation A. Tier 2 offerings would, however, be subject to significant additional requirements, such as the provision of audited financial statements, ongoing reporting obligations and certain limitations on sales.

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Financial Conglomerates and Chinese Walls

Posted by Andrew Tuch, Washington University School of Law, on
Wednesday, January 8, 2014
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Andrew Tuch is Associate Professor of Law at Washington University School of Law.

In my paper, Financial Conglomerates and Chinese Walls, which was recently made available on SSRN, I examine the effectiveness of Chinese walls, or information barriers, in preventing financial conglomerates from misusing non-public information in their trading and other activities. In recent years, empirical evidence has shown that financial conglomerates’ Chinese walls fail in important contexts, allowing firms to trade using non-public information they garner from their clients. Nevertheless, Chinese walls continue to have the legal effect of allowing financial conglomerates to discharge the otherwise incompatible client duties they owe under agency law. These incompatible duties arise due to the inflexible application of agency law and to financial conglomerates’ organizational structure, under which firms act for numerous clients across a broad and diverse range of financial activities, accumulating vast quantities of non-public information in doing so. As agents, firms are duty-bound to disclose material information in their possession to clients, and yet to do so is to breach duties of confidence owed to other clients. Chinese walls help financial conglomerates to reconcile their otherwise incompatible duties.

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