Monthly Archives: September 2015

Treasury Seeks to Curb “Cash-Rich” and
REIT Spin-Offs

Posted by Jodi J. Schwartz and Joshua M. Holmes, Wachtell Lipton Rosen & Katz, on

Thursday, September 17, 2015

Internal Revenue Code, IRS, Public firms, REITs, Securities regulation, Spinoffs, Tax avoidance, Taxation, Treasury Department
More from: David Sturgeon, James Holmes, Jodi Schwartz, Wachtell Lipton

Jodi J. Schwartz and Joshua M. Holmes are partners at Wachtell Lipton Rosen & Katz. This post is based on a Wachtell Lipton firm memorandum by Ms. Schwartz, Mr. Holmes, and David B. Sturgeon.

The Treasury Department and the Internal Revenue Service have announced (in Notice 2015-59) that they are studying issues related to the qualification of certain corporate distributions as tax-free under Section 355 of the Internal Revenue Code in situations involving substantial investment assets, reliance on relatively small active businesses, and REIT conversions. The IRS concurrently issued related guidance (Rev. Proc. 2015-43), adding such transactions to its ever-expanding list of areas on which it will not issue private letter rulings. While this expansion of the IRS’s “no-rule” areas is not a statement of substantive law, these announcements may have a chilling effect on certain pending and proposed transactions.

Development of Corporate Governance in Toulouse from 1372 to 1946

Posted by Sébastien Pouget, Toulouse School of Economics, on

Thursday, September 17, 2015

Contracts, Corporate forms, Europe, France, Innovation, Ownership, Ownership structure, Property rights, Shareholder rights
More from: David Le Bris, Sebastien Pouget, William Goetzmann

Sébastien Pouget is Professor of Finance at Toulouse School of Economics. This post is based on an article authored by Professor Pouget; David Le Bris, Assistant Professor of Finance at KEDGE Business School; and William Goetzmann, Professor of Finance at Yale University.

In our recent paper, The Development of Corporate Governance in Toulouse 1372-1946, we study the birth and evolution of the oldest shareholding companies in the world: the grain-milling companies of Toulouse. Shareholding companies that began in the 11th century formally incorporated themselves into two large-scale, widely held firms: the Bazacle Company (1372) and the Castel Company (1373). In the years that followed, they experienced the economic challenges and conflicts we now recognize as inherent in the separation of ownership and control.

The historian of law, Germain Sicard, in his 1953 landmark study of the Toulouse companies in the Middle Ages that has recently been translated in English by the Yale University Press, shows that they resembled modern corporations in many respects. We build upon the archival research by Sicard and extend the analysis of the archives of these early firms from the 16th through the 19th centuries in order to trace the evolution of corporate governance mechanisms over the “longue durée.”

Circuit Split on Dodd-Frank Act Whistleblower Provision

Posted by Aaron M. Katz and Eva Ciko Carman, Ropes & Gray LLP, on

Wednesday, September 16, 2015

Compliance & ethics, Disclosure, Dodd-Frank Act, Exchange Act, Exchange Act s.21, GAAP, Misconduct, SEC, SEC enforcement, Securities litigation, Securities regulation, U.S. federal courts, Whistleblowers
More from: Aaron Katz, Eva Carman, Ropes & Gray

Aaron M. Katz and Eva Ciko Carman are partners at Ropes & Gray LLP. This post is based on a Ropes & Gray Alert.

On Thursday, September 10, 2015, the United States Court of Appeals for the Second Circuit issued its highly anticipated decision in Berman v. Neo@Ogilvy LLC. The plaintiff-appellant, Daniel Berman, had been the finance director of Neo@Ogilvy. Mr. Berman’s lawsuit alleged that Neo@Ogilvy had unlawfully terminated him because he had reported internally, to senior company officers, supposed violations of GAAP and other accounting irregularities. The question of law presented was whether the Dodd-Frank Act’s whistleblower anti-retaliation provision offers protection to an employee who, like Mr. Berman, is fired after he reports possible financial misconduct internally but before he makes a report to the SEC. The district court had answered that question in the negative and dismissed Mr. Berman’s wrongful termination lawsuit. On appeal, the SEC, participating as amicus curiae, argued that the Dodd-Frank Act’s statutory language is ambiguous and that the SEC’s agency regulation answering that question in the affirmative, Exchange Act Rule 21F-2, is a reasonable interpretation of the statute. The Second Circuit agreed with the SEC, thereby creating a circuit split on the issue and raising the possibility that the Supreme Court will soon weigh in.

The Disappearance of Public Firms

Posted by Gustavo Grullon, Rice University, on

Wednesday, September 16, 2015

Firm performance, IPOs, Market reaction, Mergers & acquisitions, Private firms, Profitability, Public firms
More from: Gustavo Grullon, Roni Michaely, Yelena Larkin

Gustavo Grullon is Professor of Finance at Rice University. This post is based on an article authored by Professor Grullon; Yelena Larkin, Assistant Professor of Finance at Penn State University; and Roni Michaely, Professor of Finance at Cornell University.

In our paper, The Disappearance of Public Firms and the Changing Nature of U.S. Industries, which was recently made publicly available on SSRN, we show that contrary to popular beliefs, U.S. industries have become more concentrated since the beginning of the 21^st century due to a systematic decline in the number of publicly-traded firms. This decline has been so dramatic that the number of firms these days is lower than it was in the early 1970s, when the real gross domestic product in the U.S. was one third of what it is today.

We show that the decline in the number of public firms has not been compensated by other mechanisms that could reduce market concentration. First, private firms did not replace public firms, as the aggregate number of both public and private firms declined in over half of the industries, and the concentration ratio based on revenues of public and private firms has increased. Second, we examine whether the intensified foreign competition could provide an alternative source of rivalry to domestic firms, and find that the share of imports out of the total revenues by U.S. public firms has remained flat since 2000. Third, we show that the decrease in the number of public firms has been a general pattern that has affected over 90% of U.S. industries, and is not driven by distressed industries, or business niches that have disappeared due to technological innovations or changes in consumer preferences. Instead, it has been driven by a combination of a lower number of IPOs as well as high M&A activity.

CEO and Executive Compensation Practices: 2015 Edition

Posted by Matteo Tonello, The Conference Board, Inc., on

Tuesday, September 15, 2015

Compensation disclosure, Equity-based compensation, Executive Compensation, Executive performance, Firm performance, Incentives, Pay for performance, Performance measures, Proxy advisors, Say on pay, Shareholder value
More from: James Reda, Matteo Tonello, The Conference Board

Matteo Tonello is Managing Director at The Conference Board, Inc. This post relates to CEO and Executive Compensation Practices: 2015 Edition, an annual benchmarking report authored by Dr. Tonello with James Reda of Arthur J. Gallagher & Co. For details regarding how to obtain a copy of the report, contact [email protected].

The Conference Board, in collaboration with Arthur J. Gallagher & Co., recently released the Key Findings from CEO and Executive Compensation Practices: 2015 Edition, which documents trends and developments on senior management compensation at companies issuing equity securities registered with the U.S. Securities and Exchange Commission (SEC) and, as of May 2015, included in the Russell 3000 Index.

The report has been designed to reflect the changing landscape of executive compensation and its disclosure. In addition to benchmarks on individual elements of compensation packages and the evolving features of short-term and long-term incentive plans (STIs and LTIs), the report provides details on shareholder advisory votes on executive compensation (say-on-pay) and outlines the major practices on board oversight of compensation design.

Regulating Trading Practices

Posted by Andreas M. Fleckner, Max Planck Institute for Comparative and International Private Law, on

Tuesday, September 15, 2015

Algorithmic trading, Dark pools, Exchange-traded funds, Financial regulation, Germany, High-frequency trading, Information asymmetries, Information environment, Insider trading, Market efficiency, Securities regulation, Short sales, Transparency
More from: Andreas Fleckner

Andreas M. Fleckner is a Senior Research Fellow at the Max Planck Institute for Comparative and International Private Law in Hamburg. This post is based on a chapter prepared for The Oxford Handbook of Financial Regulation (forthcoming).

High-frequency trading, dark pools, front-running, phantom orders, short selling—the way securities are traded ranks high among today’s regulatory challenges. Thanks to a steady stream of news reports, investor complaints, and public investigations, it has become commonplace to call for the government to intervene and impose order. The regulation of trading practices, one of the oldest roots of securities law and still a regulatory mystery to many people, is suddenly the talk of the town.

From a historical and empirical perspective, however, many of the recent developments look less dramatic than some observers believe. This is the essence of Regulating Trading Practices, my chapter for the new Oxford Handbook of Financial Regulation. The chapter explains how today’s regulatory regime evolved, identifies the key rationale for governments to intervene, and analyzes the rules, regulators, and techniques of the world’s leading jurisdictions. My central argument is that governments should focus on the price formation process and ensure that it is purely market-driven. Local regulators and self-regulatory organizations will take care of the rest.

DOJ Adopts New Requirements for Corporations Seeking Credit for Cooperation

Posted by John F. Savarese, Wachtell, Lipton, Rosen & Katz, on

Monday, September 14, 2015

Accountability, Compliance & ethics, Corporate crime, Deferred prosecution agreements, Discovery, DOJ, Misconduct, Non-prosecution agreement, SEC enforcement, Securities enforcement
More from: David Anders, John Savarese, Jonathan Moses, Ralph Levene, Wayne Carlin, Wachtell Lipton

John F. Savarese is a partner in the Litigation Department of Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell Lipton firm memorandum by Mr. Savarese, Ralph M. Levene, Wayne M. Carlin, Jonathan M. Moses, and David B. Anders.

In an important development for corporations responding to federal investigations, the Department of Justice announced on September 10, 2015 revisions to its Principles of Federal Prosecution of Business Organization (“Principles”). The new policies, set out in a memorandum authored by Deputy Attorney General Sally Yates and sent to federal prosecutors across the nation, instruct prosecutors to focus their efforts to secure evidence against individuals responsible for corporate wrongdoing. The memorandum (accessible here) specifically encourages increased attention by DOJ attorneys on considering cases against individual wrongdoers, and also establishes additional guidelines that federal prosecutors and civil enforcement attorneys must follow in conducting and resolving corporate investigations.

Firms and Earnings Guidance

Posted by Kristian Allee, University of Wisconsin, on

Monday, September 14, 2015

Disclosure, Earnings announcements, Earnings disclosure, Earnings management, Information environment, IPOs, Reputation, Stock mispricing, Stock returns
More from: Bryan Graden, Kenneth Merkley, Kristian Allee, Ted Christensen

Kristian Allee is Assistant Professor of Accounting at the University of Wisconsin. This post is based on an article authored by Professor Allee; Ted Christensen, Professor of Accounting at Brigham Young University; Bryan Graden, Assistant Professor of Accounting at Illinois State University; and Ken Merkley, Assistant Professor of Accounting at Cornell University.

Understanding the formation of firms’ disclosure practices is of significant interest to regulators, managers, and investors. Anecdotal evidence and prior disclosure research generally conclude that firms’ current disclosure practices are often tightly connected to prior disclosure practices. However, prior disclosure practices must have a beginning in their own right, begging the questions of when and why disclosure practices begin. In our paper, When Do Firms Initiate Earnings Guidance? The Timing, Consequences, and Characteristics of Firms’ First Earnings Guidance, we examine when firms initiate earnings guidance (i.e., establish an earnings guidance policy) after an Initial Public Offering (IPO) and what factors are associated with the initiation decision.

Reg SCI: Ready for Opening Bell?

Posted by Dan Ryan, PricewaterhouseCoopers LLP, on

Sunday, September 13, 2015

Audit committee, Compliance & ethics, Compliance and disclosure interpretation, Cybersecurity, Disclosure, Internal control, REG SCI, Risk management, Risk oversight, SEC, Securities regulation
More from: Adam Gilbert, Armen Meyer, Dan Ryan, Mike Alix, PricewaterhouseCoopers

Dan Ryan is Leader of the Financial Services Advisory Practice at PricewaterhouseCoopers LLP. This post is based on a PwC publication by Mr. Ryan, Mike Alix, Adam Gilbert, and Armen Meyer. The complete publication, including footnotes, is available here.

Less than three months remain before the November 3^rd, 2015 go-live date of Regulation Systems Compliance and Integrity (“Reg SCI”). While some impacted entities have made great progress toward compliance since the rule was finalized last December, many still have a great deal to do.

Reg SCI is a wide-reaching new regulatory regime aimed at improving the SEC’s oversight of the US securities market and the market’s operational stability. The rule applies to about 35 entities that make up the core of the market’s technological infrastructure (“SCI entities”).

Perhaps the most pressing activity for SCI entities is preparing for the completion of their first annual review by December 31^st of this year. This annual review must be performed by the entity’s “objective personnel”—i.e., people who were not involved in the development, testing, or implementation of the relevant systems (or involved in the Reg SCI compliance program itself). Many SCI entities are working to assemble teams of such personnel to carry out the review, which will include detailing the state of the entity’s compliance and identifying needed remediation.

UK Regulatory Proposals and Resolvability

Posted by Barnabas W.B.Reynolds, Shearman & Sterling LLP, on

Saturday, September 12, 2015

Barnabas Reynolds is head of the global Financial Institutions Advisory & Financial Regulatory Group at Shearman & Sterling LLP. This post is based on a Shearman & Sterling client publication by Mr. Reynolds, Thomas Donegan, Reena Agrawal Sahni, Joel Moss, Azad Ali, Timothy J. Byrne, and Sylvia Favretto.

The Bank of England, the UK authority with powers to “resolve” failing banks, is consulting on how it might exercise its power of direction to remove impediments to resolvability. The Bank may require measures to be taken by a UK bank, building society or large investment firm to address a perceived obstacle to credible resolution. Concurrently, the Prudential Regulation Authority is proposing to impose a rule that would require a stay on termination or close-out of derivatives and certain other financial contracts to be contractually agreed by UK banks, building societies and investment firms with their non-EEA counterparties. This post discusses the proposed approaches by the UK regulators to ensuring that impediments to resolvability are removed, as well as certain cross-border implications.

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