Monthly Archives: December 2015

Looking Back at the SEC’s Transformation

Luis A. Aguilar is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on Commissioner Aguilar’s recent public statement; the full text, including footnotes, is available here. The views expressed in the post are those of Commissioner Aguilar and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

I started my tenure as an SEC Commissioner in the late summer of 2008, only a few weeks before the collapse of Lehman Brothers and the financial turmoil that followed, and only a few months before one of the largest financial frauds in U.S. history—the Bernard Madoff Ponzi scheme—was exposed. Beyond their obviously substantial impact on the capital markets and the greater economy, these historical events demonstrated that the Commission needed to change and adapt if it was to continue to be an effective regulator. Indeed, in late 2008 and in 2009, the continuing existence of the Commission was a matter of serious speculation. Thus, whether by coincidence or circumstance—some would say a fate of timing—it is not surprising that my tenure has corresponded with one of the most transformational periods in the SEC’s august history.

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Equity Market Misvaluation, Financing, and Investment

Toni Whited is Professor of Finance at the University of Michigan. This post is based on an article authored by Professor Whited and Missaka Warusawitharana, Principal Economist at the Board of Governors of the Federal Reserve System.

Stock market volatility often dwarfs the volatility of real activity. Even in the 2008-2009 financial crisis, the sharp cutback in production and employment by many firms was tiny relative to the far steeper drops seen in most of their stock prices. The existence of such wide fluctuations in equity values relative to real activity raises the question of whether these swings reflect movements in intrinsic firm values. If not, then equity may be misvalued, and it is natural to wonder whether these non-fundamental movements in equity values affect managerial decisions. Put simply, does market timing occur, and how large are its effects?

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Delaware Supreme Court on Potential Financial Advisor Liability

Jason M. Halper is a partner in the Securities Litigation & Regulatory Enforcement Practice Group at Orrick, Herrington & Sutcliffe LLP. This post is based on an Orrick publication by Mr. Halper, Peter J. Rooney, and Gregory Beaman. This post is part of the Delaware law series; links to other posts in the series are available here.

In November 30, 2015, the Delaware Supreme Court issued a 107-page opinion affirming the Court of Chancery’s post-trial decisions in In re Rural/Metro Corp. Stockholders Litigation (previously discussed on the Forum here). In the lower court, Vice Chancellor Laster found a seller’s financial advisor (the “Financial Advisor”) liable in the amount of $76 million for aiding and abetting the Rural/Metro Corporation board’s breaches of fiduciary duty in connection with the company’s sale to private equity firm Warburg Pincus LLC. See RBC Capital Mkts., LLC v. Jervis, No. 140, 2015, slip op. (Del. Nov. 30, 2015).The Court’s decision reaffirms the importance of financial advisor independence and the courts’ exacting scrutiny of M&A advisors’ conflicts of interest. Significantly, however, the Court disagreed with Vice Chancellor Laster’s characterization of financial advisors as “gatekeepers” whose role is virtually on par with the board’s to appropriately determine the company’s value and chart an effective sales process. Instead, the Court found that the relationship between an advisor and the company or board primarily is contractual in nature and the contract, not a theoretical gatekeeping function, defines the scope of the advisor’s duties in the absence of undisclosed conflicts on the part of the advisor. In that regard, the Court stated: “Our holding is a narrow one that should not be read expansively to suggest that any failure on the part of a financial advisor to prevent directors from breaching their duty of care gives rise to” an aiding and abetting claim. In that (albeit limited) sense, the decision offers something of a silver lining to financial advisors in M&A transactions. Equally important, the decision underscores the limited value of employing a second financial advisor unless that advisor is paid on a non-contingent basis, does not seek to provide staple financing, and performs its own independent financial analysis.

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NASDAQ Shareholder Approval Rules

Janet T. Geldzahler is Of Counsel at Sullivan & Cromwell LLP. This post is based on a Sullivan & Cromwell publication by Ms. Geldzahler, Robert E. Buckholz, Melissa Sawyer, and Marc Trevino.

Last Wednesday [November 19, 2015], the NASDAQ Stock Market requested public comments on whether and how to improve its rules requiring shareholder approval before a NASDAQ-listed company issues securities in connection with certain acquisitions, changes of control, and certain private placements. The request for comments is being made in light of changes that have occurred in the capital markets, securities laws, and the nature and type of share issuances since the rules were adopted 25 years ago.

The comment period will run until February 15, 2016. The request for comment is available here.

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Compensating Financial Experts

Vincent Glode is Assistant Professor of Finance at the University of Pennsylvania. This post is based on an article authored by Professor Glode and Richard Lowery, Assistant Professor of Finance at the University of Texas at Austin.

Compensation in the financial sector has been a controversial topic in recent years and has drawn the attention of both the press and financial regulators. Concerns about excess compensation in bailed out financial institutions even led to the appointment of a “Pay Czar” to monitor the compensation of executives and highly paid employees. Since compensation amounts roughly to half of Wall Street firms’ revenues (Office of the New York State Comptroller, 2014), and the financial sector now represents about 10% of the U.S. GDP (Greenwood and Scharfstein, 2013), the question of whether pay within financial firms is appropriate and consistent with good policy strikes us as extremely important.

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Hindering the SEC From Shining a Light on Political Spending

Lucian Bebchuk is Professor of Law, Economics, and Finance at Harvard Law School. Robert J. Jackson, Jr. is Professor of Law at Columbia Law School. Bebchuk and Jackson served as the principal draftsmen of the rulemaking petition that the Committee on the Disclosure of Corporate Political Spending submitted to the SEC. Bebchuk and Jackson are also co-authors of Shining Light on Corporate Political Spending, published in the Georgetown Law Journal. A series of posts in which Bebchuk and Jackson respond to objections to an SEC rule requiring disclosure of corporate political spending is available here. All posts related to the SEC rulemaking petition on disclosure of political spending are available here.

In a New York Times DealBook column published today, Hindering the S.E.C. From Shining a Light on Political Spending, we discuss the addition to the omnibus budget agreement of a rider to prevent the SEC from issuing next year a rule that would require public companies to disclose their political spending. This unusual Congressional intervention in S.E.C. rulemaking, we argue, is a troubling development both for investors and for the agency.

In July 2011 we co-chaired a bipartisan committee of 10 corporate and securities law professors that considered this issue and submitted to the SEC a rule-making petition urging the development of rules requiring public companies to disclose their spending on politics. To date, the agency has received more than 1.2 million comments on the proposal—far more comments than those submitted on any rule-making petition in its history.

With submissions to the SEC expressing overwhelming support for the petition, the rider reflects opponents’ interest in avoiding a debate on the merits. The rider also hurts the standing of the S.E.C., and undermines the critical premises upon which the Supreme Court has relied in its Citizens United decision.

The column is available here.

Top Board Priorities for 2016

Ruby Sharma is a principal and Ann Yerger is an executive director at the EY Center for Board Matters at Ernst & Young LLP. The following post is based on a report from the EY Center for Board Matters, available here.

Organizations are faced with many critical challenges—including rapidly changing technology, environmental risks, regulatory and legal requirements, major shifts in markets, ethical breaches, and big data and cybersecurity issues—that threaten their long-term success and sustainability. Directors have a unique opportunity to step forward and proactively oversee the development and implementation of effective, long-term strategies responsive to these challenges.

As a result, the trend of expanding board agendas will continue in 2016. As boards balance multiple priorities, most will heighten their focus on the following:

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Dividends as Reference Points

Malcolm Baker is Professor of Finance at Harvard Business School. This post is based on an article authored by Professor Baker; Brock Mendel of Harvard University; and Jeffrey Wurgler, Professor of Finance at New York University.

In our paper, Dividends as Reference Points: A Behavioral Signaling Model, which is forthcoming in the Review of Financial Studies, we use loss aversion, a feature of the prospect theory value function of Kahneman and Tversky (1979), to motivate a behavioral signaling model. A loss-averse value function has a kink at the reference point whereby marginal utility is discontinuously higher in the domain of losses. Loss aversion is supported by a considerable literature in psychology, finance and economics, as we briefly review later.

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Second Circuit on Scope of Whistleblower Protection

Nicole A. Baker is a Partner in the Washington, D.C. office of K&L Gates LLP, focusing on government enforcement and litigation practice. This post is based on a K&L gates publication authored by Ms. Baker and Meghan E. Flinn.

On November 10, 2015, the employer in a high-profile whistleblower-retaliation case [1] advised the United States Court of Appeals for the Second Circuit that it “will not be pursuing a petition for writ of certiorari with the Supreme Court of the United States” with respect to the appellate court’s recent pro-whistleblower decision concerning the scope of the anti-retaliation provisions contained in Section 21F of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank” or the “Act”). [2] In so doing, the employer re-invigorated the debate over whether Dodd-Frank’s anti-retaliation protections cover individuals who report to their employers, as opposed to contacting the Securities and Exchange Commission (“SEC”).

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Legislation to Facilitate Capital Formation

Joseph A. Hall  is a partner and head of the corporate governance practice at Davis Polk & Wardwell LLP. This post is based on a Davis Polk memorandum authored by Mr. Hall, Alan F. DenenbergMichael Kaplan, Richard D. Truesdell, Jr., and Michele Luburich.

[December 1, 2015], conference committee members for the House and Senate agreed on a five-year transportation bill. While this type of legislation is rarely of interest to participants in the capital markets, the bill includes several provisions that will improve upon the JOBS Act and facilitate capital formation transactions. The legislation is expected to be voted on by the House and Senate this week as lawmakers prepare to send a final bill to President Obama for signature before December 4.

The capital formation legislation was attached to the House version of the transportation bill in early November and was preserved without further modification by a conference committee tasked with reconciling the House and Senate proposals. The capital formation measures (which appear in the last section of the proposed bill, under Division G—Financial Services) include the following:

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