Aiyesha Dey (University of Minnesota Carlson School of Management), and Abbie J. Smith (University of Chicago Booth School of Business) at"/>

Monthly Archives: July 2016

CEO Materialism and Corporate Social Responsibility

Robert H. Davidson is Assistant Professor at Georgetown University McDonough School of Business. This post is based on a recent paper by Professor Davidson; Aiyesha Dey, Associate Professor of Accounting at University of Minnesota Carlson School of Management; and Abbie J. Smith, Professor of Accounting at University of Chicago Booth School of Business.

Fortune Global 500 firms spend over $15 billion a year on corporate philanthropy and countless hours and dollars on a host of social responsibility (CSR) activities. Corporate social responsibility refers to “managements’ obligation to set policies, make decisions and follow courses of action beyond the requirements of the law that are desirable in terms of the values and objectives of society.” Further, the ethical component of CSR proposed in the literature implies that morals or ethics of individual managers are an important factor in a firm’s CSR practices. This aspect of CSR brings into focus the point that key individuals may be instrumental in formulating and implementing firms’ CSR policy. This raises the question of the importance of individuals’ values, traits and motives in pursuing CSR. In our paper, CEO Materialism and Corporate Social Responsibility, we take a first step in this direction, and examine how CEO behavior outside the workplace, as measured by their materialism (relative ownership of luxury goods) is related to their firms’ CSR performance.

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The HLS Forum is Now on LinkedIn and Facebook


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The Harvard Law School Forum on Corporate Governance and Financial Regulation is pleased to announce that readers can now access our daily blog posts on LinkedIn and Facebook. Readers are encouraged to follow us on LinkedIn or to like the Forum’s page on Facebook to receive updates on our daily posts and stay up to date on the corporate governance and financial regulation fields.

As a reminder, readers can also follow us on Twitter or subscribe to the Forum’s daily email (instructions are available here).

The Forum, established in 2006, is the leading online resource in the fields of corporate governance and financial regulation. Since its inception, the Forum has featured more than 4,500 posts by more than 3,500 contributors. The Forum is currently attracting more than 70,000 unique visits a month. We hope that the expansion into LinkedIn and Facebook will further increase the ease with which our readers can regularly access our posts.

 

Expansion of the BJR to Stockholder Approval of “Medium Form” Mergers

Scott A. Barshay is partner and Global Head of the Mergers & Acquisitions Practice at Paul, Weiss, Rifkind, Wharton & Garrison LLP. This post is based on a Paul Weiss memorandum by Mr. Barshay, Ariel J. Deckelbaum, Ross A. Fieldston, Justin G. Hamill, Stephen P. Lamb, and Jeffrey D. Marell. This post is part of the Delaware law series; links to other posts in the series are available here.

In In re Volcano Corporation Stockholder Litigation, the Delaware Court of Chancery held that the acceptance of a first-step tender offer by fully informed, disinterested, uncoerced stockholders representing a majority of a corporation’s outstanding shares in a two-step merger under Section 251(h) of the Delaware General Corporation Law (“DGCL”) had the same cleansing effect as a fully informed, uncoerced vote of a majority of the disinterested stockholders of a target corporation in a merger. Upon the receipt of the required tendered shares, the business judgment rule “irrebuttably” applied to the merger and the plaintiff could only challenge it on the basis that it constituted waste.

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Brexit—What Now for Fund Managers?

Gregg Beechey is a corporate partner in the London office of Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Mr. Beechey and Zachary Mellor-Clark. Related posts on the legal and financial impact of Brexit include Light at the End of the (Channel) Tunnel, from Akin Gump Strauss Hauer & Feld LLP; Brexit: Possible Options and Impact, from Shearman & Sterling; Brexit: Legal Implications, from Sullivan & Cromwell LLP; The Day After Brexit, from Cadwalader, Wickersham & Taft LLP; and The Legal Consequences of Brexit, from Davis Polk & Wardwell LLP.

The UK referendum of June 23 will have historic implications for the UK and the EU as a whole. We have attempted here to look at some issues for financial services businesses, and in particular fund managers, transacting with the UK and EU.

It is difficult to be definitive because although the vote to leave was decisive (albeit by a fairly narrow margin) what happens next remains to be seen and depends on the stance taken by the UK Government (which will soon be under new leadership), with what seems to be a wide range of options including somehow ignoring the referendum altogether on the one hand, to withdrawing from any dialogue whatsoever with the EU on the other.

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Institutional Investors and Class Action Tolling

Blair A. Nicholas is a senior and managing partner of Bernstein Litowitz Berger & Grossmann LLP, and David Kaplan is a senior counsel at the firm. This post is based on a Bernstein Litowitz publication by Mr. Nicholas and Mr. Kaplan.

Stock fraud, accounting scandals, and predatory behavior by investment banks have long plagued our nation’s financial markets. Fortunately, for over forty years, investors’ individual claims for recovery of damages under the U.S. securities laws have been protected and preserved by the filing of a securities class action. In 2013, however, a split emerged among the federal circuits regarding the scope of this class action “tolling” rule. That split, which recently deepened, has created great uncertainty and imposed heavy burdens on the institutional investor community.

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Does Combining the CEO and Chair Roles Cause Poor Firm Performance?

Harley Ryan is Associate Professor of Finance at Georgia State University. This post is based on a paper authored by Professor Ryan; Narayanan Jayaraman, Professor of Finance at Georgia Institute of Technology; and Vikram Nanda, Professor of Finance at the University of Texas at Dallas. Related research from the Program on Corporate Governance includes Learning and the Disappearing Association between Governance and Returns by Lucian Bebchuk, Alma Cohen, and Charles C. Y. Wang (discussed on the Forum here) and The Case for Increasing Shareholder Power by Lucian Bebchuk.

Considerable disagreement exists on the merits of CEO-Chair duality. In recent years, there has been growing regulatory and investor pressure to split the titles of CEO and Chairman of the Board. In fact, there is a significant trend towards separation of the two titles. However, the empirical evidence in the literature is inconclusive on the impact of separating these roles. We argue that the inconclusive evidence arises from endogenous self-selection that complicates empirical identification strategies and the ability to recognize the correct counterfactual firms.

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DOJ Declination Letters and the FCPA

Mark F. Mendelsohn is a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP. This post is based on a Paul Weiss client memorandum by Mr. Mendelsohn, Alex Young K. Oh, Farrah R. Berse, Peter Jaffe, and Robby L. R. Saldaña.

The Department of Justice has publicly released its first declination letters since the launch of its FCPA Pilot Program two months ago. [1] The letters were sent to two companies, home-security and thermostat systems-maker Nortek, Inc. and internet-services provider Akamai Technologies, Inc., respectively, on June 3 and June 6. [2] Each company had been under investigation by the DOJ and SEC after voluntarily self-disclosing FCPA-related misconduct connected to corrupt payments to Chinese officials by their wholly-owned Chinese subsidiaries. Although it is clear that these two matters were self-reported prior to the effective date of the Pilot Program, the letters nonetheless offer an early window into the DOJ’s view as to when declination to prosecute is appropriate and presumably consistent with the goals of the FCPA Pilot Program.

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Pillars of Sustainability Leadership

Matteo Tonello is managing director at The Conference Board, Inc. This post is based on the Executive Summary of a Conference Board publication.

Business leaders increasingly recognize the sustainability imperative. They understand that the companies they lead cannot expect to be successful in the long term without considering the communities they work in and with and the natural environment they operate in and depend on. They understand global trends will ultimately reward companies that successfully balance their natural, social, and financial capitals, and that companies that fail to adapt to these global trends risk becoming irrelevant. The challenge is converting this recognition into action. How can business leaders prepare and steer their organizations for leadership in sustainability?

Input from senior executives at more than 80 member companies of The Conference Board sheds light on this question. Their collective input reveals leadership in corporate sustainability boils down to the following seven most impactful practices:

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Court’s Limitation of Timetable for SEC’s Claims for Disgorgement

Brad S. Karp is chairman and partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP. This post is based on a Paul Weiss client memorandum by Mr. Karp, Charles E. DavidowAudra J. SolowayAndrew J. Ehrlich, and Walter Rieman.

In SEC v. Graham, No. 14-13562 (11th Cir. May 26, 2016), the Eleventh Circuit held that the five-year statute of limitations applicable to SEC enforcement proceedings under 28 U.S.C. § 2462 applies to disgorgement and declaratory relief claims, but not to injunctive relief claims. The Eleventh Circuit reasoned that the backward-looking remedies of disgorgement and declaratory relief constitute a “civil fine, penalty or forfeiture” within the express meaning of the statute.

This decision addresses an area that has long been unsettled and has not yet reached the U.S. Supreme Court, namely, whether the SEC’s ability to obtain equitable, monetary relief in the form of disgorgement is subject to any statutory limitations period. By holding that disgorgement claims are extinguished under the five-year statute of limitations, the Eleventh Circuit has split with the D.C. Circuit, which has reached the opposite conclusion.

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Dell: Appraisal Award and Merger Price

Gail Weinstein is senior counsel in the corporate department at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Ms. Weinstein, Scott B. Luftglass, Robert C. Schwenkel, and Steven J. Steinman. This post is part of the Delaware law series; links to other posts in the series are available here.

In Appraisal of Dell Inc. (May 31, 2016), the Delaware Court of Chancery awarded an appraisal amount ($17.62) that was 30% higher than the price that was paid in the $25 billion merger ($13.75) in which Michael Dell (the founder, CEO, and 16% stockholder of Dell) and private equity firm Silver Lake Partners took Dell private. In the merger, Mr. Dell, having rolled over his equity and invested $750 million of cash, obtained 75% ownership of the company. The court utilized a discounted cash flow (DCF) analysis to appraise Dell’s “fair value” for appraisal purposes (i.e., the going concern value of Dell at the time of the merger, excluding the value of any expected synergies), having concluded that, in this case, the merger price was not a reliable indicator of fair value.

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