Monthly Archives: September 2014

Race to the Bottom Recalculated: Scoring Corporate Law Over Time

Posted by Brian R. Cheffins, University of Cambridge, on
Thursday, September 18, 2014
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Brian Cheffins is Professor of Corporate Law at the University of Cambridge. The following post is based on an article co-authored by Professor Cheffins, Steven A. Bank, Paul Hastings Professor of Business Law at UCLA School of Law, and Harwell Wells, Associate Professor of Law at Temple University Beasley School of Law.

In The Race to the Bottom Recalculated: Scoring Corporate Law Over Time we undertake a pioneering historically-oriented leximetric analysis of U.S. corporate law to provide insights concerning the evolution of shareholder rights. There have previously been studies seeking to measure the pace of change with U.S. corporate law. Our study, which covers from 1900 to the present, is the first to quantify systematically the level of protection afforded to shareholders.

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High-Frequency Trading: An Innovative Solution to Address Key Issues

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Wednesday, September 17, 2014
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The following post comes to us from Jon Lukomnik of the IRRC Institute and is based on the summary of a report commissioned by the IRRC Institute and authored by Professors Khaldoun Khashanah, Ionut Florescu, and Steve Yang of Stevens Institute of Technology; the full report is available here.

As controversial as is HFT, the large volume of the discussion sometimes makes it hard to understand the content. What elements of HFT positively impact the trading markets? Which are problematic? What are the proposed mitigations? Therefore, the Investor Responsibility Research Center Institute (IRRC Institute) asked Khashanah, Florescu, and Yang (KF&Y) to look at HFT from various perspectives. The result includes:

  • The effect of HFT on volume, price efficiency and liquidity.
  • The problems and risks seen by various stakeholders from their vantage points.

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Window Dressing in Mutual Funds

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Wednesday, September 17, 2014
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The following post comes to us from Vikas Agarwal and Gerald Gay, both of the Department of Finance at Georgia State University, and Leng Ling of the College of Business at Georgia College & State University.

In our paper, Window Dressing in Mutual Funds, forthcoming in the Review of Financial Studies, we investigate an alleged agency problem in the mutual fund industry. This problem involves fund managers attempting to mislead investors about their true ability by trading in such a manner that they disclose at quarter ends disproportionately higher (lower) holdings in stocks that have recently done well (poorly). The portfolio churning associated with this practice of window dressing has potentially damaging effects on both fund value and performance.

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Alibaba’s Governance Risks

Posted by Lucian Bebchuk, Harvard Law School, on
Tuesday, September 16, 2014
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Lucian Bebchuk is William J. Friedman and Alicia Townsend Friedman Professor of Law, Economics, and Finance and Director of the Program on Corporate Governance, Harvard Law School.

Wall Street is eagerly watching what is expected to be one of the largest initial public offerings (IPOs) in history: the offering of the Chinese Internet retailer Alibaba at the end of this week. Investors have been described by the media as “salivating” and “flooding underwriters with orders.” It is important for investors, however, to keep their eyes open to the serious governance risks of investing in Alibaba.

In a New York Times DealBook column, posted today, I analyze these governance risks. I show that Alibaba’s ownership structure does not provide adequate protections to public investors. In particular, such investors should worry that, over time, a significant amount of the value created by Alibaba would not be shared with them. Investors participating in the IPO, I conclude, should recognize the significant governance risks they will be taking.

The column, Alibaba’s Governance Leaves Investors at a Disadvantage, is available here.

The Legal and Practical Implications of Retroactive Legislation Targeting Inversions

Posted by Yaron Nili, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Tuesday, September 16, 2014
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The following post comes to us from Jason M. Halper, partner in the Securities Litigation & Regulatory Enforcement Practice Group at Orrick, Herrington & Sutcliffe LLP, and is based on an Orrick publication authored by Mr. Halper, Peter J. Connors, David Keenan, and Carrie H. Lebigre. The complete publication, including footnotes, is available here.

The increasing use of corporate inversions, whereby a company via merger achieves 20 percent or more new ownership, claims non-US residence, and is then permitted to adopt that country’s lower corporate tax structure and take advantage of tax base reduction techniques, has been the subject of intense media commentary and political attention. That is perhaps not surprising given the numbers: there was approximately one inversion in 2010, four in each of 2011 and 2012, six in 2013 and sixteen signed or consummated this year to date—or more than in all other years combined. And, the threat of anti-inversion legislation appears only to be hastening the pace at which companies are contemplating such transactions.

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Measuring Price Impact with Investors’ Forward-Looking Information

Posted by Yaron Nili, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Tuesday, September 16, 2014
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The following post comes to us from Aaron Dolgoff and Tiago Duarte-Silva, both of Charles River Associates. The views expressed here do not necessarily reflect those of Charles River Associates.

The recent Supreme Court decision in Halliburton brought renewed interest to price impact and event studies. Aside from identification and analysis of the news itself, the event study has three basis steps: (i) Estimate a statistical model (or “market model”) of how the stock price would be expected to change in absence of such news (“predicted price changes”), (ii) Calculate stock price changes in excess of the predicted price changes (“excess price change”), and (iii) Evaluate the statistical significance of the excess price change to distinguish material news from noise, or normal variations in stock prices.

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Delaware Court of Chancery Upholds Forum Selection Bylaw

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Monday, September 15, 2014
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The following post comes to us from David J. Berger, partner focusing on corporate governance at Wilson Sonsini Goodrich & Rosati, and is based on a WSGR Alert memorandum. 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.

On September 8, 2014, Chancellor Andre G. Bouchard issued a notable decision in City of Providence v. First Citizens BancShares, Inc., upholding—as a matter of facial validity and on an “as-applied” basis at the motion to dismiss stage—a forum selection bylaw adopted by a Delaware corporation selecting another jurisdiction (North Carolina, where the company is headquartered) as the forum for intra-corporate disputes. This decision is important not only because it reaffirms the decision last year by then-Chancellor, now Chief Justice, Leo E. Strine, Jr. in Boilermakers Local 154 Retirement Fund v. Chevron Corporation, 73 A.3d 934 (Del. Ch. 2013), upholding the facial validity of forum selection bylaws, but also because it includes notable pronouncements from the current Chancellor on the application of such provisions. [1]

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An IPO’s Impact on Rival Firms

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Monday, September 15, 2014
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The following post comes to us from Matthew Spiegel, Professor of Finance at Yale University, and Heather Tookes, Professor of Finance at Yale University.

An initial public offering (IPO) is a major event in the life of any firm. But what does an IPO imply for the industry’s future? In our paper, An IPO’s Impact on Rival Firms, which was recently made publicly available on SSRN, we take a structural approach that allows different industries to progress in different ways post IPO. If one is forced to make a sweeping generalization, then this paper finds an IPO augurs in an era of reduced profits and greater consumer mobility within an industry. Unlike a static model, a structural model’s parameters produce implications about magnitudes rather than just signs. This permits one to assess whether the estimates are economically “reasonable in a straightforward manner.”

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Risk Governance: Banks Back to School

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on
Sunday, September 14, 2014
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The following post comes to us from Dan Ryan, Leader of the Financial Services Advisory Practice at PricewaterhouseCoopers LLP, and is based on a PwC publication.

On September 2, 2014, the Office of the Comptroller of the Currency (“OCC”) finalized its risk governance framework for large banks and thrifts (“Guidelines”) that was proposed in January 2014. [1] The Guidelines formalize the heightened risk management standards that the OCC has been communicating through the supervisory process for several years, but do so somewhat more flexibly than the January proposal (“proposal”) did. Although many firms have been working to enhance their risk management programs to meet the proposal and supervisory communications, most still have work to do in order to meet the Guidelines’ requirements.

The Guidelines maintain the proposal’s emphasis on risk governance at the bank level to ensure safety and soundness, and affords the OCC greater flexibility (prescribed under regulations) to take enforcement actions in response to a bank’s compliance failure. The responsibility to oversee risk management remains with the Board of Directors which retains its ultimate risk governance oversight role; however, the Guidelines clarify that the Board need not take on responsibility for day-to-day managerial duties as the proposal had suggested.

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Liabilities Under the Federal Securities Laws

Posted by Paul Vizcarrondo, Wachtell, Lipton, Rosen & Katz, on
Saturday, September 13, 2014
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Paul Vizcarrondo is a partner in the Litigation Department of Wachtell, Lipton, Rosen & Katz specializing in corporate and securities litigation and regulatory and white collar criminal matters. This post is based on the introduction of a Wachtell Lipton memorandum by Mr. Vizcarrondo; the complete publication is available here.

This post deals with certain of the liability provisions of the federal securities laws: §§ 11, 12, 15 and 17 of the Securities Act of 1933 (the “Securities Act”), and §§ 10, 18 and 20 of the Securities Exchange Act of 1934 (the “Exchange Act”). It does not address other potential sources of liability and sanction, such as federal mail and wire fraud statutes, state fraud statutes and common law remedies, RICO and the United States Securities and Exchange Commission’s (“SEC”) disciplinary powers.

On December 22, 1995, the Private Securities Litigation Reform Act of 1995 (the “Reform Act” or “PSLRA”) became law after the Senate overrode President Clinton’s veto. Pub. L. No. 104-67, 109 Stat. 737 (1995). Where relevant, this post discusses changes and additions that the PSLRA made to the liability provisions of the Securities Act and the Exchange Act.

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