Monthly Archives: January 2015

Ten Key Points from the FSB’s TLAC Ratio

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 by Mr. Ryan, Kevin Clarke, Roozbeh Alavi, and Dan Weiss. The complete publication, including appendix, is available here.

On November 10th, the Financial Stability Board (FSB) issued a long-awaited consultative document that defined a global standard for minimum amounts of Total Loss Absorbency Capacity (TLAC) to be held by Global Systemically Important Banks (G-SIBs). TLAC is meant to ensure that G-SIBs have the loss absorbing and recapitalization capacity so that, in and immediately following resolution, critical functions can continue without requiring taxpayer support or threatening financial stability.

The FSB’s document requires a G-SIB to hold a minimum amount of regulatory capital (Tier 1 and Tier 2) plus long term unsecured debt that together are at least 16-20% [1] of its risk weighted assets (RWA), i.e., at least twice the minimum Basel III total regulatory capital ratio of 8%. In addition, the amount of a firm’s regulatory capital and unsecured long term debt cannot be less than 6% of its leverage exposure, i.e., at least twice the Basel III leverage ratio. In addition to this “Pillar 1” requirement, TLAC would also include a subjective component (called “Pillar 2”) to be assessed for each firm individually, based on qualitative firm-specific risks that take into account the firm’s recovery and resolution plans, systemic footprint, risk profile, and other factors.

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A Strong Cautionary Note for M&A Practitioners and Professionals

Jack B. Jacobs is Senior Counsel at Sidley Austin LLP, and a former justice of the Delaware Supreme Court. The following post is based on a Sidley update, 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 volume of Court of Chancery decisions has been proceeding apace. We have culled out two that we believe are worthy of your attention:

Cigna Health & Life Ins. Co. v. Audax Health Solutions, 2014 WL 6784491 (Del. Ch.).

This is a “must read” for all M&A and Private Equity practitioners and professionals, given the use of certain of the deal devices found to be invalid in the specific circumstances of this case.

Cigna, a large stockholder of Audax, the acquired company, sued to invalidate certain conditions of an arm’s length negotiated cash-out merger of Audax into United. Essentially, the defendant merging corporations conditioned receipt of the merger consideration not only upon surrender of the (to-be-cancelled) shares, but also upon the execution of a Letter of Transmittal, wherein each surrendering stockholder agreed to the “Obligations” set forth therein. Cigna refused to execute a Letter of Transmittal, and in response the defendants refused to pay Cigna the merger consideration. Cigna sued in the Court of Chancery for a judgment declaring the Obligations invalid and mandating payment of the merger consideration to Cigna. The Court of Chancery (V.C. Parsons) held the obligations invalid under 8 Del. C. §251 and (relatedly) for lack of consideration.

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Ownership Structure, Voting, and Risk

The following post comes to us from Amrita Dhillon, Professor of Economics at King’s College London, and Silvia Rossetto of the Toulouse School of Economics at the University of Toulouse.

In our paper Ownership Structure, Voting and Risk, forthcoming in the Review of Financial Studies, we investigate the interaction between the ownership structure of publicly traded firms and their risk profiles. In particular, we show how the potential for conflict of interest between shareholders on risk decisions may cause the emergence of activist mid-sized investors. In turn, ownership structure affects the risk decisions that firms make.

It is natural to believe that the choice of shares to hold in a company is a trade off between diversification and control: large size comes with control at the cost of diversification. Many firms, however, have mid-sized shareholders who are neither well diversified nor have control. For example, in the United States (where it is widely agreed that regulation helps dispersed ownership), 67% of public firms have more than one shareholder with a stake larger than 5%, while only 13% are widely held and 20% have only one blockholder (Dlugosz et al., 2006). In Europe (where concentrated ownership is the norm), in eight out of the nine largest stock markets of the European Union, the median size of the second largest voting block in large publicly listed companies exceeds five percent (data from the European Corporate Governance Network). Why do such mid-sized shareholders emerge?

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Did Commissioner Gallagher Violate SEC Rules?

Professor Tamar Frankel is Professor of Law at Boston University School of Law. This post offers a critique of a paper by Commissioner Daniel Gallagher and Professor Joseph A. Grundfest, described on the Forum here. Additional critiques of the paper by Professor Jonathan Macey are available on the Forum here, here and here. A reply post to Professor Macey authored by Professor Grundfest and endorsed by Commissioner Gallagher is available on the Forum here.

Recently SEC Commissioner Daniel M. Gallagher issued a paper, titled Did Harvard Violate Federal Securities Law? (described on the Forum here and in a WSJ article here). The paper, co-authored with Professor Joseph Grundfest, expressed the Commissioner’s opinions regarding shareholder proposals and the Harvard Law School clinic that assisted public pension funds filing those proposals in the previous three years. The Commissioner did not mince his words. In his opinion, Harvard University and its clinic violated the securities laws by assisting proponents that failed to include references to academic studies contrary to the views of those proponents. The Commissioner was clearly presenting a threat to the University and its clinic. However, his statements also raise a number of questions about his own behavior.

To begin with, the Commissioner should have recognized that, as Professor Macey has shown in a series of posts (available on the Forum here, here, and here), his accusations are without merit and the proposals were entirely consistent with current SEC rules, policies and practices. Furthermore, in making his accusations, the Commissioner deviated from standard SEC procedures and practices.

I am unaware of any case in which a sitting SEC Commissioner released a paper accusing particular individuals or organizations of legal violations, and urging enforcement action and/or private suits against them, or used such public accusations as an instrument for urging other Commissioners or the SEC staff to change their policy. In a recent comment to the New York Times, Harvey Pitt brought up as a possible precedent a 1974 speech by then-Commissioner A.A. Sommer who expressed concerns about “going-private” transactions. However, Sommer’s speech (available on the SEC website here) did not mention (let alone accuse) any particular individuals or organizations (the only mention of any names in the Speech is in footnote citations to past court cases). There is a big difference between discussing general policy problems, which SEC Commissioners should be doing, and attacking or urging actions against particular individuals and organizations, which SEC Commissioners should not be doing.

The SEC Canon of Ethics (available here), which is binding on SEC Commissioners, warns SEC officials to be wary of using their “power to defame and destroy”. The Cannon of Ethics guides SEC officials to avoid defaming individuals or organizations. The Canon provides:

“§ 200.66 Investigations. The power to investigate carries with it the power to defame and destroy. In determining to exercise their investigatory power, members should concern themselves only with the facts known to them and the reasonable inferences from those facts. A member should never suggest, vote for, or participate in an investigation aimed at a particular individual for reasons of animus, prejudice or vindictiveness. The requirements of the particular case alone should induce the exercise of the investigatory power, and no public pronouncement of the pendency of such an investigation should be made in the absence of reasonable evidence that the law has been violated and that the public welfare demand it.”

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SEC Adopts Regulation SCI to Strengthen Securities Market Infrastructure

Annette Nazareth is a partner in the Financial Institutions Group at Davis Polk & Wardwell LLP, and a former commissioner at the U.S. Securities and Exchange Commission. The following post is based on a Davis Polk client memorandum by Ms. Nazareth, Lanny A. Schwartz, Jeffrey T. Dinwoodie, and Zachary J. Zweihorn.

On November 19, 2014, the Securities and Exchange Commission unanimously voted to adopt Regulation Systems Compliance and Integrity (“Regulation SCI”), a set of rules designed to strengthen the technology infrastructure of the U.S. securities markets. Regulation SCI replaces and builds on the SEC’s voluntary Automation Review Policy, which is currently mainly applicable to national securities exchanges, expanding upon existing practices and making them mandatory. Regulation SCI will apply to operators of certain alternative trading systems (“ATSs”), market data information providers and clearing agencies, in addition to national securities exchanges, subjecting these entities and, indirectly, certain officers to extensive new compliance obligations, with the goals of reducing the occurrence of technical issues that disrupt the securities markets and improving recovery time when disruptions occur.

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Professor Grundfest’s Latest Reply Flip-Flops Allegations and Further Demonstrates that He and Commissioner Gallagher Wrongfully Accused the SRP

Jonathan R. Macey is the Sam Harris Professor of Corporate Law, Corporate Finance & Securities Law at Yale University. This post provides a detailed response to a reply post authored by Professor Joseph A. Grundfest and endorsed by Commissioner Daniel Gallagher, titled No Good Deed Goes Unpunished: A Reply to Professor Macey’s Reply, and available on the Forum here. This reply post engaged with earlier posts by Professor Macey available on the Forum here and here, which offered a critique of a paper by Commissioner Gallagher and Professor Grundfest, titled Did Harvard Violate Federal Securities Law? The Campaign Against Classified Boards of Directors (described in a post on the Forum here).

This post is my second—and I hope final—response to the unsuccessful attempts by SEC Commissioner Daniel Gallagher and Professor Joseph Grundfest to address my criticism of the paper released by them last month (hereinafter “the Paper,” described on the Forum here). In my first post, “SEC Commissioner, Law Professor Wrongfully Accuse SRP of Securities Fraud” (hereinafter “My First Post,” available on the Forum here), I analyzed the spurious claims against the Shareholder Rights Project (SRP) that Gallagher/Grundfest put forward. In this post I address the authors’ most recent reply to my latest post. This most recent reply again shifts allegations dramatically and fails to address the identified flaws in the authors’ analysis. The reply thus confirms and reinforces my original position that the authors wrongfully accused the SRP.

The analysis of My First Post showed that the proposals submitted by investors working with the SRP (SRP proposals) were consistent with the law and with the long-held policies and practices of SEC staff, and I concluded that the authors had wrongfully accused the SRP. In a subsequent post titled “A Response to Professor Macey” (hereinafter “the First Reply,” available on the Forum here), Professor Grundfest attempted to offer a “point by point” detailed response to my analysis. In a response titled Professor Grundfest’s Reply Demonstrates that He and Commissioner Gallagher Wrongfully Accused the SRP (“My First Response”, available on the Forum here), I showed that (i) the First Reply dramatically modifies and weakens the authors’ allegations and (ii) the First Reply itself demonstrates, in conceding some key points that I made and in failing to address some others, that Gallagher/Grundfest wrongfully accused the SRP and should withdraw their allegations.

“There you go again”: Earlier this week, the Forum published a reply to My First Response (“the Second Reply,” available on the Forum here) authored by Professor Grundfest and endorsed by Commissioner Gallagher. Like the First Reply, the Second Reply reinforces my serious concerns about the Gallagher/Grundfest attack.

Below I first discuss the dramatic shift of allegations introduced by the Second Reply as well as the authors’ announced plan to come up with new allegations against the SRP following my debunking of the allegations in the Paper. I next discuss the authors’ consistent failure to address the deficiencies I identified in their claims. I conclude that the repeated attempts to prop up spurious claims, which are admittedly at odds with the long-held policies and practices of the SEC regarding shareholder proposals, are particularly unworthy of a sitting SEC commissioner, and I urge the authors to withdraw their allegations.

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M&A Communications Challenges Posed by Tax Inversion Deals

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 and Kal Goldberg.

Tax inversion deals are clearly the most talked about M&A deal structure we have seen for many years. Unlike other hot-topic M&A deal structures (think LBOs or activist investor campaigns), inversions involve a highly charged political controversy in the context of the global competitiveness of corporations and their home economies. Although the recent Treasury Department rules have significantly or, in some cases, fatally crimped the economics of some previously announced inversions, many tax advantages of inversions remain. As a result, the structure retains its appeal for a number of cross-border acquisitions by U.S. companies and will likely continue to create business and political headlines in the U.S. and abroad.

Depending on the friendly or hostile nature of the deal, the parties’ home countries and the constituencies being addressed, tax inversion can be a plus to be celebrated, a minus to be exploited or, all too often, a combination of both. The many facets of inversion deals and their shifting nature create far more complicated communications challenges than any other type of M&A deal structure.

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Delaware Court: 17.3% Stockholder/CEO may be a Controlling Stockholder

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. 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 In re Zhongpin Inc. S’holders Litig., the Delaware Court of Chancery denied motions to dismiss breach of fiduciary duty claims against an alleged controlling stockholder and members of the company’s board of directors, holding that the plaintiffs had raised reasonable inferences that (i) although the stockholder held only 17.3% of the company’s outstanding common stock, as CEO and Chairman of the Board, he possessed “both latent and active control” over the company, and (ii) the sales process was not entirely fair.

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Diversity on Corporate Boards: How Much Difference Does “Difference” Make?

The following post comes to us from Deborah L. Rhode, the Ernest W. McFarland Professor of Law and Director of the Center on the Legal Profession at Stanford University, and Amanda K. Packel, the Deputy Director of the Arthur and Toni Rembe Rock Center for Corporate Governance, a joint initiative of Stanford Law School and the Stanford Graduate School of Business.

In recent years, increasing attention has focused on the influence of gender and racial diversity on boards of directors. More than a dozen countries now require some form of quotas to increase women’s representation on boards, and many more have voluntary quotas in corporate governance codes. In the United States, support for diversity has grown in principle, but progress has lagged in practice, and controversy has centered on whether and why diversity matters.

In our article, Diversity on Corporate Boards: How Much Difference Does “Difference” Make?, which was recently published in Delaware Journal of Corporate Law, 39, no. 2, Fall 2014, we evaluate the case for diversity on corporate boards of directors in light of competing research findings. An overview of recent studies reveals that the relationship between diversity and financial performance has not been convincingly established. There is, however, some theoretical and empirical basis for believing that when diversity is well managed, it can improve decision-making and enhance a corporation’s public image by conveying commitments to equal opportunity and inclusion. We believe increasing diversity should be a social priority, but not for the reasons often assumed. The “business case for diversity” is less compelling than other reasons rooted in social justice, equal opportunity, and corporate reputation. Our article explores the rationale for diversity and strategies designed to address it.

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No Good Deed Goes Unpunished: A Reply to Professor Macey’s Reply

The post is authored by Joseph A. Grundfest, the W. A. Franke Professor of Law and Business at Stanford University Law School, and endorsed by SEC Commissioner Daniel M. Gallagher. The post responds to a post by Yale Law School Professor Jonathan R. Macey (available on the Forum here), titled Professor Grundfest’s Reply Demonstrates that He and Commissioner Gallagher Wrongfully Accused the SRP. Professor Macey’s post, along with an earlier post by him (available on the Forum here), offered a critique of a paper by Commissioner Gallagher and Professor Grundfest, titled Did Harvard Violate Federal Securities Law? The Campaign Against Classified Boards of Directors, that is described in a post by Professor Grundfest (available on the Forum here).

According to the Guinness World Book of Records, the longest game of correspondence chess spanned 53 years and ended only with the death of one of the participants. Professor Macey and I have a good start at challenging this record, but with any luck, we will reach closure without either of us having to expire. And, if you are keeping score, this post is my reply to Professor Macey’s reply (here) to my response (here) to Professor Macey’s reaction (here) to a paper posted by Commissioner Gallagher and me asserting that the Harvard Shareholder Rights Project has violated federal securities law (here). Whew.

As an initial matter, I would like to thank Professor Macey for the time and effort he has devoted to commenting on our article. While Professor Macey and I seem destined to disagree on significant points, Professor Macey’s most recent post suggests strategies to strengthen the coming revision of our article, and we are grateful for those observations.

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