Monthly Archives: December 2015

The Soviet Constitution Problem in Comparative Corporate Law

This post comes to us from Leo E. Strine, Jr., Chief Justice of the Delaware Supreme Court, the Austin Wakeman Scott Lecturer on Law and a Senior Fellow of the Harvard Law School Program on Corporate Governance. This post is based on Chief Justice Strine’s recent essay, The Soviet Constitution Problem in Comparative Corporate Law: Testing the Proposition that European Corporate Law is More Stockholder Focused than U.S. Corporate Law, issued as Discussion Paper of the Program on Corporate Governance and forthcoming in the Southern California Law Review. Related research from the Program on Corporate Governance includes Toward Common Sense and Common Ground? Reflections on the Shared Interests of Managers and Labor in a More Rational System of Corporate Governance, by Chief Justice Strine; and The Case for Increasing Shareholder Power, by Lucian Bebchuk.

Leo E. Strine, Jr., Chief Justice of the Delaware Supreme Court, the Austin Wakeman Scott Lecturer on Law and a Senior Fellow of the Harvard Law School Program on Corporate Governance, recently issued an essay that is forthcoming in the Southern California Law Review. The essay, titled The Soviet Constitution Problem in Comparative Corporate Law: Testing the Proposition that European Corporate Law is More Stockholder Focused than U.S. Corporate Law, is available here. The abstract of Chief Justice Strine’s essay summarizes it as follows:

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Private Control Premium and Option Exercises

Vyacheslav Fos is Assistant Professor of Finance at Boston College. This post is based on an article by Professor Fos and Wei Jiang, Professor of Finance at Columbia Business School.

In our paper, Out-of-the-Money CEOs: Private Control Premium and Option Exercises, forthcoming in the Review of Financial Studies, we examine the effects of proxy contests on CEOs’ option exercise policies. When faced with a challenge to insider control, we find that CEOs value company shares significantly more than the market due to the potentially decisive role their attendant voting rights could play in ex ante close proxy contests. By demonstrating that the strategic exercise of vested options is a potentially effective defensive tactic, we provide further support for the role of aggressive shareholder activism in market-based corporate governance.

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Insurers: Retirement Plans Look Less Golden

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, Armen Meyer, and Chris Joline.

Earlier this year, the Department of Labor (“DOL”) released a proposed regulatory package impacting the way investment advisors and brokers are compensated. [1] Under the proposal, recommendations to an employee retirement benefit plan or an individual retirement account (“IRA”) investor will be considered “fiduciary” investment advice, thus requiring the advice to be in the “best interest” of the client rather than being merely “suitable.” As a result, insurance brokers and agents who provide investment advice will face limits on receiving commission-based (as opposed to flat fee) compensation. [2]

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Scope of Federal Statutory Whistleblower Provisions

Joseph M. McLaughlin is a Partner at Simpson Thacher & Bartlett LLP. This post is based on a Simpson Thacher memorandum by Mr. McLaughlin and Yafit Cohn. This article appeared in the December 10, 2015 edition of the New York Law Journal.

The Sarbanes-Oxley Act (SOX) and the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) contain provisions protecting from retaliation individuals who provide information regarding a violation of U.S. securities laws. Various ambiguities in these statutory provisions have been adjudicated, most recently by the Northern District of California, which grappled with a new issue: whether directors who allegedly engage in retaliatory conduct may be liable under SOX and Dodd-Frank.

In Wadler v. Bio-Rad Laboratories, [1] Chief Magistrate Judge Joseph C. Spero held that directors who take retaliatory action against a whistleblowing employee by voting in favor of that employee’s termination are subject to individual liability under both SOX and Dodd-Frank. In addition, the court addressed the unsettled question whether Dodd-Frank’s anti-retaliation protection extends to whistleblowers who report internally but not to the Securities and Exchange Commission (SEC), joining a divided Second Circuit in according deference to the SEC’s view that it does.

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Comment Letter of 18 Law Professors on the Trust Indenture Act

Adam J. Levitin is Professor of Law at Georgetown University Law Center, specializing in bankruptcy, commercial law, and financial regulation. This post contains the text of a letter spearheaded by Prof. Levitin, and co-signed by 18 professors of bankruptcy and corporate finance law, regarding a proposed omnibus appropriations rider that would amend the Trust Indenture Act of 1939. The complete letter is available here.

We are legal scholars of corporate finance. We write because we are concerned by a proposed omnibus appropriations rider that would amend the Trust Indenture Act of 1939 without any legislative hearings or opportunity for public comment on the proposed amendment.

As you may know, the Trust Indenture Act is one of the pillars of American securities regulation. Congress passed the Trust Indenture Act in the wake of the Great Depression to protect bondholders in restructurings. Among other things, the Trust Indenture Act provides that no bondholder’s right to payment or to institute suit for nonpayment may be impaired or affected without that individual bondholder’s consent. These provisions are intended to protect bond investors by requiring any restructuring of bonds to occur subject to the transparency of a court supervised bankruptcy process, absent bondholder consent to a debt restructuring.

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The Long-term Effects of Hedge Fund Activism: A Reply to Cremers, Giambona, Sepe, and Wang

Lucian Bebchuk is Professor of Law, Economics, and Finance at Harvard Law School; Alon Brav is Professor of Finance at Duke University; Wei Jiang is Professor of Finance at Columbia Business School; and Thomas Keusch is Assistant Professor at the Erasmus University School of Economics. This post relates to a recent article, Hedge Find Activism and Long-Term Firm Value, by Cremers, Giambona, Sepe, and Wang, which was recently made publicly available on SSRN. This post is related to the study on The Long-Term Effects of Hedge Fund Activism by Lucian Bebchuk, Alon Brav, and Wei Jiang (discussed on the Forum here).

This post replies to a study by Cremers, Giambona, Sepe, and Wang (“the CGSW Study”), Hedge Find Activism and Long-Term Firm Value. The CGSW study, which has recently been publicly released on SSRN and simultaneously announced in a Wachtell Lipton memorandum, aims at contesting existing evidence on the long-term effects of hedge fund activism. As we explain below, the paper overlooks prior opposing evidence on the subject, offers a flawed empirical analysis, and makes claims that are contradicted by its own reported evidence. Furthermore, the paper’s conclusions are inconsistent not just with our work, but with a large body of empirical studies by numerous researchers. CGSW’s claims, we show, should be given no weight in the ongoing examination of hedge fund activism.

In a paper titled The Long-Term Effects of Hedge Fund Activism, (“the LT Effects Study”), three of us tested empirically the “myopic activism claim” that has long been invoked by opponents of shareholder activism. According to this claim, hedge fund activism produces short-term benefits at the expense of long-term value. The LT Effects Study shows that the myopic activist claim is not supported by the data on targets’ Tobin’s Q, ROA, or long-term stock returns during the five years following the activist intervention.

CGSW focus on one part of the results of the LT Effects Study—those concerning Q (financial economists’ standard metric of firm valuation). Accepting that industry-adjusted Tobin’s Q improves in the years following activist interventions, CGSW assert that what has been missing is a comparison of how activist targets perform relative to a matched sample of similarly underperforming firms. CGSW claim that their matched sample analysis shows that the Q of activist targets improves less in the years following the intervention than the Q of matched control firms and that activism therefore decreases, rather than increases long-term value. Although CGSW do not look at stock returns, their conclusions imply that the announcement of an activist intervention represents “bad news” for investors that should be expected to be accompanied immediately or ultimately by negative stock returns for the shareholders of target companies.

Below we in turn comment on:

(i) Our obtaining different results than those reported by CGSW when applying CGSW’s empirical methodology to the same data;

(ii) The inconsistency of CGSW’s claims with some of their own reported results;

(iii) CGSW’s puzzling “discovery” of a well-known selection effect;

(iv) CGSW’s failure to engage with prior work conducting matched sample analysis and reaching opposite conclusions;

(v) CGSW’s flawed empirical methodology;

(vi) The inconsistency of CGSW’s conclusions with the large body of evidence on stock returns accompanying activist interventions; and

(vii) CGSW’s implausible claim that activist interventions have destroyed over 50% of the value of “innovative” target firms.

Although CGSW direct their fire at the Long-Term Effects Study, the discussion below explains that their conclusions are inconsistent not just with this study but with a large number of empirical studies by numerous researchers, including the many studies cited below.

CGSW’s Data and Results

The CGSW paper is based on a dataset of activist interventions that two of us collected and that the LT Effects Study used. Although we are still working with the data to produce additional papers, we agreed to provide the authors with our data to facilitate research in this area. To our surprise, the authors did not provide us an opportunity to comment on their paper before making their paper public, and we first learnt about the paper from Wachtell Lipton’s memorandum announcing it.

Although we view the empirical procedure used by CGSW as flawed, we have attempted to replicate their results using our data (which CGSW used), following the procedure described in their paper and making standard choices for elements of the procedure that the paper does not fully specify. Doing so, we have obtained results that are very different from those of CGSW.

We asked the authors to provide us with the list of the matched sample companies used in their tests. Even though their paper is based on data we shared with them, CGSW declined to provide us with the requested list and stated that they would not do so prior to the publication of their paper in a journal (which might be many months away).

Claims Inconsistent with CGSW’s Own Results

CGSW claim that their matched sample analysis shows that “firms targeted by activist hedge funds improve less in value … than similarly poorly performing firms that are not subject to hedge fund activism.” However, the patterns displayed in the authors’ key Figure 1 do not support this central claim.

This Figure 1, which we reproduce below, reports industry-adjusted Tobin’s Q for firms targeted by hedge funds (blue graph) and industry-adjusted Tobin’s Q for the matched control firms (paired with the target firms by CGSW) during the years before and after the year at which target firms became a target.

Although the authors state that the Figure “confirms” their conclusions, it does not appear to do so. The Figure vividly shows that targets’ valuation increases more sharply than that of matched control firms that are not subject to hedge fund activism during the years following time t (denoting the end of the intervention year).

CGSW might argue that, although target valuation increases more sharply relative to matched control firms from time t (the end of the intervention year) forward, the activist intervention is responsible for the short-term decrease in value relative to control firms that targets experience from time t-1 (the beginning of the year of the intervention) to time t (the end of the year of the intervention). However, this short-term decrease is likely to at least partly precede the intervention and thus be a potential cause rather than a product of it. Furthermore, while opponents of hedge fund activism have been seeking to ground their opposition in claims regarding long-term effects, we are unaware of any claims by such opponents that such activism decreases value in the short term, and the well-documented stock market gains accompanying announcements of activist interventions would make such a claim implausible.

Indeed, CGSW themselves explain that the view that is empirically supported by their paper is that hedge fund interventions pressure management to produce short-term gains that come “at the potential expense of long-term performance.” This view implies a short-term increase in valuation followed by a decline in valuation during the years following the intervention year. The clear improvement in target valuation (relative to control firms) from time t forward displayed in Figure 1 thus contradicts CGSW’s claims and conclusions.

Tobin’s Q around the start of activist hedge fund campaigns (sample of all hedge funds campaigns)

cremers1

Source: Cremers et al., November 2015, page 44.

Although the inconsistency of CGSW’s claims with their own Figure 1 is worth noting in assessing CGSW’s paper, we should stress that, due to the methodological problems noted below, we otherwise do not attach weight to the authors’ results, including those in Figure 1.

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Some Thoughts for Boards of Directors in 2016

Martin Lipton is a founding partner of Wachtell, Lipton, Rosen & Katz, specializing in mergers and acquisitions and matters affecting corporate policy and strategy. This post is based on a Wachtell Lipton memorandum by Mr. Lipton, Steven A. Rosenblum, and Karessa L. Cain. Related research from the Program on Corporate Governance includes The Long-Term Effects of Hedge Fund Activism by Lucian Bebchuk, Alon Brav, and Wei Jiang (discussed on the Forum here), and The Myth that Insulating Boards Serves Long-Term Value by Lucian Bebchuk (discussed on the Forum here).

 

Over the last two decades, the corporate governance landscape has become increasingly dominated by the view that maximizing the power and influence of shareholders will lead to stronger and better-governed companies. The widespread dismantling of staggered boards and change-of-control defenses, the promulgation of say-on-pay and other governance mandates, and the proliferation of best practices are largely premised on this shareholder rights manifesto. In the aggregate, the changes have been transformative and have precipitated a sea change in the gestalt of Wall Street. Hedge fund activism has exploded as an asset class in its own right, and even the largest and most successful companies are vulnerable to proxy fights and other activist campaigns. In response to short-termist pressures brought by hedge funds and activist shareholders, companies have been fundamentally altering their business strategies to forego long-term investments in favor of stock buybacks, dividends and other near-term capital returns. At this point, theoretical debates about the pros and cons of a shareholder-centric governance model have been superseded by observable, quantifiable trends and behaviors. For example, according to Standard & Poor’s, dividends and stock buybacks in the U.S. totaled more than $900 billion in 2014—the highest level on record, and last December, a Conference Board presentation compiled data demonstrating that capital investment by U.S. public companies has decreased and is less than that of private companies.

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Individual Indemnity Protections After the “Yates Memo”

Joseph A. Hall is a Partner and member of the Corporate Department at Davis Polk & Wardwell LLP. This post is based on a Davis Polk memorandum authored by Mr. Hall, John A. Bick, Melissa Glass, and Louis L. Goldberg. This post is part of the Delaware law series; links to other posts in the series are available here.

On November 16, 2015, Deputy Attorney General Sally Quillian Yates gave a speech regarding the implementation of the Department of Justice’s recent policy initiatives to facilitate the prosecution of individuals in corporate cases outlined in the “Yates Memo,” issued on September 9, 2015. These policy initiatives have now been incorporated in the U.S. Attorneys’ Manual. There is some debate about what is new in the Yates memo and what the potential implications for companies and their directors and officers may be, but one thing is clear—the question of individual liability is on the front burner once again. As evidence, note that Assistant Attorney General for the Antitrust Division William Baer recently emphasized the potential for increased civil accountability for individuals as a result of the Yates Memo, and stated that the Antitrust Division in particular was assessing whether there should be more individual liability in civil antitrust investigations. Unsurprisingly, we are now increasingly advising clients on the implications for individual indemnity protections and D&O insurance policies.

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Is 2015, Like 1985, an Inflection Year?

Martin Lipton is a founding partner of Wachtell, Lipton, Rosen & Katz, specializing in mergers and acquisitions and matters affecting corporate policy and strategy. This post is based on a Wachtell Lipton memorandum by Mr. Lipton. Related research from the Program on Corporate Governance includes The Long-Term Effects of Hedge Fund Activism by Lucian Bebchuk, Alon Brav, and Wei Jiang (discussed on the Forum here), and The Myth that Insulating Boards Serves Long-Term Value by Lucian Bebchuk (discussed on the Forum here).

In an October 2015 post, I posed the question: Will a New Paradigm for Corporate Governance Bring Peace to the Thirty Years’ War? As we approach the end of 2015, I thought it would be useful to note some of the most cogent recent developments on which the need, and hope, for a new paradigm is based. These developments include, among other things, the accumulation of a critical mass of academic research that discredits the notion that short-termism, activist attacks and shareholder-centric corporate governance tend to create rather than destroy long-term value.
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Which Shareholders Benefit from Low-Cost Monitoring Opportunities?

Miriam Schwartz-Ziv is Assistant Professor of Finance at Michigan State University. This post is based on an article authored by Professor Schwartz-Ziv and Russ Wermers, Professor of Finance at the University of Maryland.

The traditional view in the finance literature is that shareholders that hold a large stake in a company are more likely to take costly actions, such as initiating a proxy fight or confronting management, while small shareholders will enjoy a free ride. In our recent paper, entitled Which Shareholders Benefit from Low Cost Monitoring Opportunities? Evidence from Say on Pay, we examine which shareholders are likely to take advantage of a low-cost monitoring opportunity, specifically, the Say-On-Pay vote (SOP). As we shall specify, we contrast SOP voting behavior on three levels: the aggregate level, the mutual fund level, and the institutional level to provide a finer granularity of voting patterns. Our primary finding is that, compared to large-scale shareholders (those who own greater than 5% of outstanding shares), small institutional shareholders are more likely to vote against management on the SOP vote. This voting pattern implies that, when ownership is dispersed, the low-cost SOP vote provides an opportunity for many small institutional shareholders to coordinate, and to voice a unified message.

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