Yearly Archives: 2016

Chelsea Therapeutics: Management Projections & Fiduciary Duties

Steven Epstein is a partner and Co-Head of the Mergers & Acquisitions practice at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank publication by Mr. Epstein, Scott LuftglassPhilip Richter, Peter L. Simmons, and Gail Weinstein. This post is part of the Delaware law series; links to other posts in the series are available here.

The Delaware Court of Chancery’s decision in Chelsea Therapeutics Stockholder Litigation (May 20, 2016) underscores the benefits of disclosure to stockholders with respect to a board’s decision—in valuing the company in connection with a sales process—to not take into account (or to modify or revise) projections prepared by management. It should be noted that the court’s discussion highlights that, as reflected in the trend of Delaware decisions over the past couple of years, there is only a narrow path to success for plaintiffs in establishing liability of independent and disinterested directors in a post-closing damages action.

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Accounting for Rising Corporate Profits: Intangibles or Regulatory Rents?

Jim Bessen is Lecturer at the Boston University School of Law. This post is based on a discussion paper authored by Professor Bessen.

Profits are up. Operating margins for firms publicly listed in the US show a substantial and sustained rise (see Figure below). Corporate valuations are up as well. That is good news for managers and investors. But is it good news for society?

Economists, such as Joseph Stiglitz and Luigi Zingales, find the rise potentially troubling for two reasons. First, higher profits create greater economic inequality. Rising aggregate profits correspond to a decline in labor’s share of output, contributing to stagnant wages. Also, greater profits for some corporations but not others may create greater wage inequality (see “Corporate Inequality Is the Defining Fact of Business Today”).

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Weekly Roundup: June 3–June 9, 2016


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This roundup contains a collection of the posts published on the Forum during the week of June 3–June 9, 2016.











The Value-Decreasing Effect of Staggered Boards







Governance Practices for IPO Companies

Richard J. Sandler is a partner at Davis Polk & Wardwell LLP and co-head of the firm’s global corporate governance group. This post is based on a Davis Polk client memorandum.

With ongoing pressure on companies that are past the IPO stage to update or modify their corporate governance practices to align with the views of some shareholders and proxy advisory firms, we thought this would be a good time to review corporate governance practices of newly public companies to see if they have also shifted in recent years. Our 2016 survey is an update of our 2009, 2011 and 2014 surveys and focuses on corporate governance structures at the time of the IPO for the 50 largest U.S.-listed IPOs of “controlled companies” (as defined under NYSE and NASDAQ listing standards) and the 50 largest U.S.-listed IPOs of non-controlled companies from November 2013 through March 2016. Results are presented separately for controlled companies and non-controlled companies in recognition of their different governance profiles.

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Corporate Privacy Failures Start at the Top

Victoria Schwartz is Associate Professor of Law at Pepperdine University School of Law. This post is based on a recent article by Professor Schwartz.

In my article, Corporate Privacy Failures Start at the Top, forthcoming in the Boston College Law Review, I offer a new theory to explain why corporations are so bad at privacy. We have all heard numerous stories of corporations neglecting to protect, failing to consider, or in some cases even intentionally violating the privacy of their consumers, employees, and even occasionally their shareholders. In recent years, consumer backlash has repeatedly caused corporations to issue apologies regarding their treatment of privacy, prompting the question of why the corporation failed to anticipate the privacy problem in the first case.

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An Empirical Analysis of Public Enforcement of Directors’ Duties in Australia

Jasper Hedges is Research Fellow, George Gilligan is Senior Research Fellow, and Ian Ramsay is Harold Ford Professor of Commercial Law at Melbourne Law School, The University of Melbourne. This post is based on a recent paper authored by Mr. Hedges, Mr. Gilligan, Mr. Ramsay, Helen Bird, and Andrew Godwin.

There is significant international interest in enforcement of directors’ duties. Our paper presents the findings of an empirical study of judicial proceedings brought by the Australian Securities and Investments Commission (ASIC) and the Commonwealth Director of Public Prosecutions (CDPP) for breaches of the directors’ duties provisions of the Corporations Act 2001 (Cth) in the ten year period from 2005 to 2014. The paper examines the directors’ duties to: (a) act with reasonable care and diligence, in the best interests of the company, and for a proper purpose; (b) avoid conflicts of interest; (c) not engage in related party transactions; and (d) prevent the company trading while it is insolvent.

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Women Directors and Participation on Key Committees

Carol Bowie is Head of Americas Research at Institutional Shareholder Services (ISS). This post is based on a recent publication authored by ISS U.S. Research analyst Rob Yates.

Women corporate directors globally are showing greater proportional gains on occupying key board committees than on boards overall, according to a new analysis by leading governance and ESG data and analytics provider Institutional Shareholder Services.

Between Jan. 1, 2014, and Jan. 1, 2016, the proportion of women directorships at companies across major markets and indices in Europe, the U.S., Australia, and Canada grew by 5.5 percentage points compared with 6.9 points for those on audit committees. Growth evidenced in the proportion of women on audit committees during that period included double digit gains at companies in Italy and France, 7.2 percentage points at U.K. companies, and 6 percentage points at Swiss companies. Meanwhile, the proportion of women on other key committees, including those addressing remuneration and nomination, similarly outpaced gains at the overall board levels, albeit less prominently, at 6.5 and 5.9 points, respectively.

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How Does Hedge Fund Activism Reshape Corporate Innovation?

Wei Jiang is the Arthur F. Burns Professor of Free and Competitive Enterprise at Columbia Business School. This post is based on a discussion paper authored by Professor Jiang; Alon Brav, Professor of Finance at Duke University; Xuan Tian, Associate Professor of Finance at Indiana University; and Song Ma. 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).

The idea that stock market pressure leads to “managerial myopia” has been a recurring concern and has evolved into a heated debate in recent years as activist hedge funds have come to epitomize shareholder empowerment. Our study, How Does Hedge Fund Activism Reshape Corporate Innovation?, aims to inform the debate by analyzing how hedge fund activism reshapes corporate innovation—arguably the most important long-term investment that firms make but also the most susceptible to short-termism.
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Dictation and Delegation in Securities Regulation

Usha R. Rodrigues is M.E. Kilpatrick Professor of Law at University of Georgia School of Law. This post is based on a recent article by Professor Rodrigues.

Prominent scholars have descried a pattern of boom and bust in securities laws: after financial crisis comes “bubble law,” “quack” regulation that is a misguided populist reaction with little empirical support. [1] In other words, crisis leads to reactionary legislation. But what about when Congress legislates in the absence of a precipitating crisis—most recently, in the JOBS Act? In Dictation and Delegation in Securities Regulation, forthcoming in the Indiana Law Journal, I articulate a more nuanced theory of congressional action in the securities field, one that accounts for differences not only in when Congress intervenes in securities law, but also how it does so.

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The Value-Decreasing Effect of Staggered Boards

Alma Cohen is a Professor of Empirical Practice at Harvard Law School and Charles Wang is an Assistant Professor of Business Administration at Harvard Business School. This post is a reply to a recent post by Yakov Amihud that is based on a paper on staggered boards with Stoyan Stoyanov, available here, which contests the conclusions of an article on the subject by Professors Cohen and Wang, available here. The post by Professors Cohen and Wang draws on their reply paper, available here.

In an article published in the Journal of Financial Economics in 2013, How Do Staggered Boards Affect Shareholder Value? Evidence from a Natural Experiment, we provided evidence that market participants perceive staggered boards to be, on average, value-decreasing. In an April 2016 paper, summarized in a recent post on the Forum (available here), Amihud and Stoyanov attempt to contest our findings. The Amihud-Stoyanov paper (hereinafter AS2016) puts forward several specifications that render our results not statistically significant (though the results largely retain their sign). In response to their work, we have carried out further empirical analysis and found that the non-significant “results” of AS2016 do not hold up when carefully examined. Indeed, the tests that we have conducted to address the issues raised by AS2016 provide a wide array of statistically significant results that are consistent with and reinforce the findings and conclusions of our 2013 JFE article.

In November 2015 Amihud and Stoyanov issued an earlier version of their paper (AS2015, available here) attempting to show that the significance of our results weakens when some observations are excluded. In December 2015 we issued a detailed response (Staggered Boards and Shareholder Value: A Reply to Amihud and Stoyanov, hereinafter the CW Reply), showing that the claims of AS2015 are unwarranted. In their current paper, AS2016, Amihud and Stoyanov drop some of their claims, but they retain other arguments that were already shown to be unwarranted in the CW Reply and add new claims.

Notably, with the exception of its replication of our 2013 specifications, none of the results presented in AS2016 are statistically significant, and the results based on our sample largely have a sign consistent with the conclusions of our 2013 JFE article. Thus, even assuming that the results reported by AS2016 hold up to scrutiny, the lack of statistical significance implies that they would equally be consistent with both the view that staggered boards are value-decreasing and the view that they are value-increasing.

In any case, this point is moot because the non-significant “results” of AS2016 do not hold up. As is true of any event study without a large number of observations, the statistical significance of our 2013 results could be sensitive to the removal of a small number of observations, especially if such removal is designed in a strategic way. However, in the case of our study, the results retain their statistical significance under a wide range of tests conducted to address the concerns raised by AS2016.
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