Yearly Archives: 2016

Chairman and CEO: The Controversy over Board Leadership

David Larcker is Professor of Accounting at Stanford Graduate School of Business. This post is based on a paper authored by Professor Larcker and Brian Tayan, Researcher with the Corporate Governance Research Initiative at Stanford Graduate School of Business.

Our paper, Chairman and CEO: The Controversy over Board Leadership, examines the circumstances under which companies decide to combine or separate the chairman and CEO roles and shareholder response to this decision.

In recent years, companies have consistently moved toward separating the chairman and CEO roles. According to Spencer Stuart, just over half of companies in the S&P 500 Index are led by a dual chairman/CEO, down from 77 percent 15 years ago. In theory, an independent chairman improves the ability of the board of directors to oversee management. However, separation of the chairman and CEO roles is not unambiguously positive, and there is little research support for requiring a separation of these roles. Still, shareholder activists and many governance experts remain active in pressuring companies to divide their leadership structure.

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How Do Investors Accumulate Network Capital? Evidence from Angel Networks

Vijay Yerramilli is Assistant Professor of Finance at University of Houston Bauer College of Business. This post is based on a recent paper authored by Professor Yerramilli and Buvaneshwaran Gokul Venugopal.

Networks are widespread in many financial markets, and play a crucial role in the transmission of information and mitigation of agency conflicts. In the context of entrepreneurial finance, Hochberg, Ljungqvist, and Lu (2007) show that venture capital (VC) funds with higher network centrality (i.e., better-networked VC funds) deliver better future performance, in terms of the proportion of their portfolio investments that successfully exit through an IPO or sale to another company. However, we know little about how networks are formed or how some investors end up becoming central to their networks. Is network centrality itself determined by reputation gained from good past performance? Do social connections translate into future co-investment connections? Addressing these questions is challenging because most financial markets are dominated by a few large institutions that became big via a series of consolidations, which makes it impossible to examine how their networks developed over time. Moreover, since individuals often move across institutions, the true relationship between individual performance and network connectedness may not be reflected in institution-level metrics of performance and network connectedness.

In our paper, How do Investors Accumulate Network Capital? Evidence from Angel Networks, which was recently made available on SSRN, we overcome these challenges by using the angel investor market to understand how investors accumulate network capital. This market provides an ideal setting because it allows us to focus on individual investors, and to examine how their position in the network changes over time with their performance. This is crucial because, unlike institutional investors such as VC funds or private equity groups, individual angels are not endowed with large network capital to begin with, and have to build their connections from the ground up. Given the high failure rate of start-ups, we can expect that angels who successfully guide their portfolio companies to the next stage of financing will subsequently become more important within their networks.

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Delaware Court on LLC Managers’ Authority to Delegate

David A. Harris is a partner in the Commercial Law Counseling Group at Morris, Nichols, Arsht & Tunnell LLP. This post is based on a Morris Nichols publication by Mr. Harris, Tarik J. Haskins, Louis G. Hering, R. Jason Russell, and Walter C. Tuthill. This post is part of the Delaware law series; links to other posts in the series are available here.

The Delaware Court of Chancery recently issued an important opinion addressing the ability of managers of a limited liability company to delegate to non-managers. Obeid v. Hogan. CA. No. 11900-VCL (Del. Ch. Jun. 10, 2016). In Obeid, the plaintiff was a member and director of a board-managed LLC (the “Corporate LLC”) and a member and manager of a manager-managed LLC (the “Manager LLC” and, together with the Corporate LLC, the “LLCs”). The plaintiff sued the other directors and managers of the LLCs directly and derivatively on behalf of the LLCs. The other directors and managers then voted to create a special litigation committee (the “SLC”) for each LLC, which SLC was comprised of an individual who was neither a director of the Corporate LLC nor a manager of the Manager LLC, to determine whether to pursue the derivative actions on behalf of the LLCs. The plaintiff brought this action challenging whether a non-director or non-manager could serve on the SLC.

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Regulating Corporate Governance in the Public Interest: The Case of Systemic Risk

Steven L. Schwarcz is the Stanley A. Star Professor of Law & Business at the Duke University School of Law. This post is based a recent keynote address by Professor Schwarcz at the National Business Law Scholars Conference (NBLSC).

There’s long been a debate whether corporate governance law should require some duty to the public. The accepted wisdom is not to require such a duty—that corporate profit maximization provides jobs and other public benefits that exceed any harm. This is especially true, the argument goes, because imposing specific regulatory requirements and making certain actions illegal or tortious—what I’ll call “regulating substance,” in contrast to “regulating governance”—can mitigate the harm without unduly impairing corporate wealth production.

Whether that’s true in other contexts, I question if it’s true in the context of systemic economic harm. My examination is based in part on a forthcoming article [1] and also parallels the efforts of a Working Group (which I chair) of Fellows of the American College of Bankruptcy, which is examining the same question under the laws of various nations worldwide.

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Shareholder Activism on Sustainability Issues

George Serafeim is the Jakurski Family Associate Professor of Business Administration at Harvard Business School. This post is based on a recent paper by Professor Serafeim, Jody Grewal and Aaron Yoon.

A growing number of investors are now engaging companies on environmental, social and governance (ESG) issues, in addition to traditional executive compensation, shareholder rights, and board of directors’ topics. In 2013, nearly 40 percent of all shareholder proposals submitted to Russell 3000 companies related to ESG issues, representing a 60 percent increase since 2003 (Proxy Voting Analytics, 2014). The topics of ESG proposals are diverse, ranging from disclosure of political contributions and compliance with human rights policies, to the adoption of a climate change policy. The purpose of this paper is to test the effect that ESG proposals have on firms’ subsequent ESG performance and market valuation. Critically, we use recent innovations in accounting standard setting to classify shareholder proposals that address ESG issues as financially material or immaterial, and we analyze how proposals on material versus immaterial issues affect firms’ subsequent performance on the focal ESG issue and market valuation.

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Present at the Creation: Reflections on the Early Years of the NACD

Lawrence J. Trautman is Assistant Professor of Business Law and Ethics at Western Carolina University and  a past president of the New York and Metropolitan Washington/Baltimore Chapters of the National Association of Corporate Directors. This post is based on a recent paper authored by Mr. Trautman.

Effective corporate governance is critical to the productive operation of the global economy and preservation of our way of life. Excellent governance execution is also required to achieve economic growth and robust job creation. In the United States, the premier corporate director membership organization is the National Association of Corporate Directors (NACD). NACD plays a major role in fostering excellence in corporate governance in the United States and beyond.

The NACD has grown from a mere realization of the importance of corporate governance to become the only major national membership organization created by and for corporate directors. With a membership in excess of 17,000, today’s NACD is a reliable source of essential resources that assist board directors in strengthening board leadership. Now a member of the Global Network of Director Institutions (GNDI.org), NACD has worldwide impact. Even during the early years, NACD was a significant source of quality education and qualified directors to companies striving to achieve excellence in corporate governance.

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AML Monitoring: New York Regulator Gets Prescriptive

Dan Ryan is Leader of the Financial Services Advisory Practice at PricewaterhouseCoopers LLP. This post is based on a PwC publication by Mr. Ryan, Sean Joyce, Joseph Nocera, Jeff Lavine, Didier Lavion, and Armen Meyer.

The New York State Department of Financial Services (NYDFS) issued its final rule on June 30, 2016 requiring either senior officers or the board of directors to certify the effectiveness of anti-money laundering (AML) and Office of Foreign Assets Control (OFAC) transaction monitoring and filtering programs. [1] The rule (Part 504 of the NYDFS Superintendent’s Regulations) is a response to weaknesses in transaction monitoring and watch list filtering programs that the NYDFS identified during routine examinations and subsequent investigations over the past several years.

The final rule differs in several critical ways from an earlier version of the rule NYDFS proposed in December of last year. Most notably, the final rule gives financial institutions the option of having a senior officer or the board certify the efficacy of their transaction monitoring and filtering programs; whereas, the proposed rule only allowed senior compliance officers to do so. Also, in light of industry feedback provided during the comment period, the NYDFS softened the tenor of the certification itself by removing the provision stipulating potential “criminal penalties” for incorrect or falsified certification filings.

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Commonsense Principles of Corporate Governance

The Commonsense Principles of Corporate Governance were developed, and are posted on behalf of, a group of executives leading prominent public corporations and investors in the U.S. The Open Letter and key facts about the principles are also available here and here.

The following is a series of corporate governance principles for public companies, their boards of directors and their shareholders. These principles are intended to provide a basic framework for sound, long-term-oriented governance. But given the differences among our many public companies—including their size, their products and services, their history and their leadership—not every principle (or every part of every principle) will work for every company, and not every principle will be applied in the same fashion by all companies.

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Bail-in and Market Stabilization

Wolf-Georg Ringe is Professor of International Commercial Law at Copenhagen Business School and at the University of Oxford. This post is based on recent paper authored by Professor Ringe.

The concept of “bailing in” a distressed bank’s creditors to avoid a taxpayer-financed public rescue is commonly accepted as one of the most significant regulatory achievements in the post-crisis efforts to end the problem of “Too Big To Fail”. Yet behind the political slogan, surprising uncertainties remain as to the precise regulatory objective of bail-in, as well as its trigger and the requirements for applying bail-in powers. Further, broad scepticism is voiced as to decisiveness of regulators to make use of their bail-in powers. In short, serious doubts persist as to the credibility of the concept, in particular relating to the fear that regulators may shy away from taking bail-in action in the decisive moment of rescue operations. Regulatory frameworks are ambivalent about the precise trigger requirements and substantial conditions for applying it. At the bottom of this vagueness is a surprising uncertainty about the policy purpose of bail-in.

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Weekly Roundup: July 15–July 21, 2016


More from:

This roundup contains a collection of the posts published on the Forum during the week of July 15–July 21, 2016.




Does Dodd-Frank Affect OTC Transaction Costs and Liquidity?













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