Yearly Archives: 2016

Navigating A New Management-Board Relationship

Mark B. Nadler is Principal and co-founder of Nadler Advisory Services. This post is based on a Nadler publication.

These can be difficult days for anyone in management who frequently deals with the company’s board of directors. That once-comfortable relationship between management and the board, particularly in public companies, is being strained by unprecedented change. It often plays out in ways that can feel intrusive and irritating—requests for more data, reports, presentations and meetings—all requiring more time, effort and attention. That can feel awfully frustrating when the new demands appear in a vacuum, without explanation.

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The Fed’s Commodities Proposal: Safety and Soundness Regulation or Indirect Prohibition?

Arthur S. Long is a partner at Gibson, Dunn & Crutcher LLP. This post is based on a Gibson Dunn publication by Mr. Long, Michael D. BoppJeffrey L. Steiner, and Carl E. Kennedy.

On September 23, 2016, the Board of Governors of the Federal Reserve System (Federal Reserve) issued its long-expected proposed rule (Proposed Rule) relating to permissible financial holding company (FHC) commodities activities. [1] The Proposed Rule follows up on the Section 620 Study (Study) issued by the U.S. federal banking regulators two weeks earlier, in which the Federal Reserve recommended to Congress that it repeal Section 4(o) of the Bank Holding Company Act (BHC Act) and the Merchant Banking authority. [2]

In the Proposed Rule, the Federal Reserve suggested the following changes from current law:

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Institutional Investor Cliques and Governance

Alan D. Crane is Assistant Professor of Finance at the Jesse H. Jones Graduate School of Business at Rice University. This post is based on a recent paper by Professor Crane; Andrew Koch, Assistant Professor of Business Administration at the University of Pittsburgh; and Sebastien Michenaud, Assistant Professor of Finance at Kellstadt Graduate School of Business.

Do institutional investors work together to influence firm policies and governance? Researchers often think of owners as independent actors. This leads to the common view that dispersed ownership will result in poorer governance, all else equal, because small owners will not have the incentive to monitor individually (the “free rider” problem). However, in recent years it has become widely acknowledged that some investors do not act independently, but instead share information about their investment decisions and even work together to influence corporate policies in the firms they own (see, for example, Top US financial groups hold secret summits on long-termism, FT.com, February 2016).

In our paper, we examine the relationship between ownership structure and firm governance, taking into account investor interactions. We empirically identify groups of investors that are likely to be working together to influence the firms they own. We then examine how the presence of these coordinating owners relates to governance. Our results support a more complex view of the relation between ownership structure, coordination, and governance. Shareholder coordination increases governance via “voice” by overcoming the free-riding problem, consistent with Shleifer and Vishny (1986). At the same time, coordination weakens governance via threat of exit as predicted in Edmans and Manso (2011).

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Delaware Court’s Reliance on MFW to Dismiss Challenge to Going Private Transaction

Christopher E. Austin is a partner in the New York office of Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary Gottlieb publication, and is part of the Delaware law series; links to other posts in the series are available here.

In a recent decision, [1] Vice Chancellor Laster of the Delaware Court of Chancery clarified certain issues related to the obligations of a controlling stockholder that often arise in connection with going private and similar transactions. The case involved a relatively conventional proposal by a controlling stockholder (the Anderson family) to acquire the remaining shares of Books-A-Million, Inc. (“BAM”) from BAM’s minority stockholders. The family structured the proposal with the goal of satisfying the conditions of the MFW decision so that any challenge to the transaction would benefit from the favorable “business judgment” level of judicial review. [2]

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Private Tech Growth as an Asset Class

Rohit Kulkarni is Managing Director of the Private Investment Research Group at SharesPost, Inc. This post is based on a SharesPost publication by Mr. Kulkarni and Jennifer Phillips.

Though everyone in the venture community is cognizant of the growth in the number and size of mega-private financings (i.e., $100MM+), we wanted to present our clients with a much clearer understanding of the trend and how it is impacting the capital markets for emerging growth technology companies.

To do that, we analyzed literally thousands of venture financings since the Great Recession (i.e., 2007-2008). In this post, we explore answers to a range of questions related to the private tech funding landscape, including: 1) How have VC investment dollar allocations trended across early-stage, mid-stage and late-stage private tech companies since the Great Recession? 2) How have the number of investments and pre-money valuations trended across early-stage, mid-stage, and late-stage private tech companies? 3) Which indicators suggest a change in sentiment among private tech investors? 4) Which early indicators presage the shape and direction of private tech investments over the next 12-24 months? Key highlights of our findings include:

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Tournament Incentives and Firm Innovation

Carl Hsin-han Shen is Associate Professor of Finance at National Central University and Hao Zhang is Associate Professor at the Saunders College of Business at Rochester Institute of Technology. This post is based on a forthcoming article by Professor Shen and Professor Zhang.

A growing sentiment following the recent financial crisis is that CEOs are overpaid and that their large compensation dilutes shareholder value. This sentiment is partly rooted in the fact that the pay disparity between CEOs and other employees has rapidly grown over the last three decades. Recent evidence shows that non-CEO executives on average earn only approximately 40% of a CEO’s compensation, and the ratio between average CEO pay and worker pay is now around 300-to-1 (Fortune.com, 2015). To shed light on the pay disparity, the U.S. Securities and Exchange Commission (SEC) recently adopted the Pay Ratio Disclosure Rule that requires public companies to disclose the CEO-Employee pay ratios. Why is the large pay disparity in corporate America so prevalent? Is it only driven by the increased CEO power (Bebchuk et al., 2002)? Is it possible that such a large pay disparity may generate certain benefits to firms and shareholders? According to the classical tournament theory (Lazear and Rosen, 1981), pay gaps between hierarchy levels can encourage competition among employees and provide promotion-based incentives (also known as tournament incentives). In a CEO-promotion tournament, non-CEO senior executives compete with each other for the top position. These executives are evaluated relative to their peers (i.e., relative performance evaluation), and among them the best relative performer will be promoted to be the next CEO. Since a promotion to the CEO position is associated with higher pay, senior executives have strong incentives to expend great effort to enhance the corporate performance in order to increase their own chances of promotion. These discussions suggest that large pay gaps could be associated with better firm performance (including better innovation performance).

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Protecting the Interests of Long-Term Shareholders In Activist Engagements

Rakhi Kumar is Head of Corporate Governance, and Ron O’Hanley is President and Chief Executive Officer of State Street Global Advisors (SSgA). This post is based on a SSgA publication. 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).

Key Takeaways

  • State Street Global Advisors (SSgA) recognizes that activists can bring positive change to underperforming companies, especially when boards or management ignore investor concerns about poor corporate governance practices.
  • As near permanent capital, SSgA’s main goal is to ensure that activists are helping to promote long-term value creation in whatever way they choose to engage with companies.
  • However, a recent rise in settlement agreements entered into rapidly between boards and activists and without the voice of long-term shareholders concerns us, as we see evidence of short-term priorities compromising longer-term interests.
  • We believe boards should protect the interests of long-term shareholders in all activist situations, and carefully evaluate settlement agreements. In particular boards need to consider the interests of long-term shareholders as they assess: 1) duration of the agreements; 2) ownership thresholds and holding period requirements for continued board representation; and 3) risk to the company’s share
  • price posed by a lack of board oversight on significant pledging activities by activists serving on the board.
  • To help inform and explain our voting decisions on the election of directors in activist situations, we will assess settlement agreements according to how they address the concerns highlighted in this paper.

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Responding to Concerns Regarding the Protection of the Interests of Long-Term Shareholders in Activist Engagements

Abe Friedman is Managing Partner at CamberView Partners. This post is based on a CamberView publication by Mr. Friedman, Pete Michelsen, Derek Zaba, and Sharo Atmeh and is a reply to a publication from State Street Global Advisors, discussed on the Forum here.

On October 10, 2016, State Street Global Advisors (SSGA) issued a press release and published an article (discussed on the Forum here) expressing wariness about rapid settlements with activists without the input of long-term shareholders, a view shared by other large institutional investors. To address this concern, SSGA CEO Ron O’Hanley requested that “corporate boards develop principles for engaging with activist investors to promote long-term value creation.” Specifically, SSGA calls for companies to:

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Corporate Governance Indices and Construct Validity

Bernard Black is Nicholas D. Chabraja Professor at Northwestern University Pritzker Law School and Kellogg School of Management; and B. Burcin Yurtoglu is Professor and Chair of Corporate Finance at WHU—Otto Beisheim School of Management. This post is based on a recent paper by Professor Black; Professor Yurtoglu; Antonio Gledson de Carvalho, Assistant Professor at Fundação Getúlio Vargas School of Business at Sao Paulo; Vikramaditya Khanna, the William W. Cook Professor of Law at the University of Michigan Law School; and Woochan Kim is Associate Professor of Finance at Korea University Business School (KUBS). Related research from the Program on Corporate Governance includes Related research from the Program on Corporate Governance includes What Matters in Corporate Governance? by Lucian Bebchuk, Alma Cohen and Allen Ferrell (discussed on the Forum here).

A common strategy in corporate governance research is to build a corporate governance index and then see whether the index predicts firm value or performance. These indices are imperfect, but their use is widespread because researchers lack good alternatives. A major concern with governance indices is what they actually measure. The concept of governance is abstract and latent rather than concrete and observable, and we are not sure how to proxy for this vague concept using observable measures. This raises concerns about the degree to which the proxy (a governance index) measures what it claims to be measuring. The fit between the observable proxy or “construct” (the governance index) and the underlying concept (governance) is known as construct validity. This core issue is rarely addressed in corporate governance research. Larcker, Richardson and Tuna (2007) and Dey (2008) are exceptions.

In our paper we discuss what can usefully be said about which of the many possible governance indices are sensible constructs. We conduct an exploratory analysis of how to tackle this question, using tools drawn from the causal inference, education and psychology literatures.

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Do Institutional Investors Demand Public Disclosure?

Stephen A. Karolyi is Assistant Professor of Finance and Accounting and Andrew Bird is Assistant Professor of Accounting at the Tepper School of Business at Carnegie Mellon University. This post is based on their recent paper.

Do institutional investors demand corporate disclosure? A central question in finance and accounting is whether corporate transparency benefits or hurts investors. This issue is complicated by the fact that information provision could affect groups of investors differentially. Public information may crowd out the private information advantage of some institutional investors; alternatively, investors, particularly those following more passive trading strategies, may not be information sensitive. However, even passive institutional investors may benefit from an increase in monitoring by other stakeholders following improved disclosure. Further, regardless of the preferences of institutional investors, whether or not they are able to affect corporate policy on this margin is unclear. This tradeoff is reflected in mixed empirical evidence on the relationship between institutional ownership and corporate disclosure.

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