Yearly Archives: 2016

Influencing Control: Jawboning in Risk Arbitrage

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; Tao Li, Assistant Professor of Finance at Warwick Business School; and Danqing Mei, Ph.D. candidate in Finance at Columbia Business School. 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).

Our paper, Influencing Control: Jawboning in Risk Arbitrage, publicly available on SSRN, provides the first study on a relatively new phenomenon of “activist risk arbitrage,” in which activist shareholders wield their influence over corporate control changes by blending shareholder activism into an M&A arbitrage strategy. More specifically, the activist arbitrageurs attempt to block an announced M&A deal through public campaigns in order to extract better deal terms. Such activities have been on the rise since the early 2000s: they were observed in fewer than 1% of all M&A deals in early 2000s, rising to around 10% during the past few years. However, the academic literature has not formally analyzed the full process, characteristics, or the impact of the new risk arbitrage strategy on the market for corporate control. As shareholder activism launched by institutional investors becomes increasingly commonplace in corporate governance, its marriage with a popular, traditionally non-activist, arbitrage strategy is instructive. A signature of institutional investor activism has been that it strives to influence corporate policies and governance, but does not aim for control. The activist arbitrage strategy, by inserting shareholder activism into corporate control events, thus bridges the two by “influencing control.”

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Stock Repurchases and Persistent Asymmetric Information

Philip Bond is Professor of Finance and Business Economics at the University of Washington. This post is based on an article authored by Professor Bond and Hongda Zhong, Assistant Professor of Finance at London School of Economics.

A widely documented empirical finding is that share prices fall in response to a firm’s announcement of a seasoned equity offering (SEO). The standard explanation for this empirical regularity is that a firm has information that investors lack, and a SEO reveals to investors that the firm’s information is negative (see, in particular, Myers and Majluf 1984). In equilibrium, firms with negative information issue equity and accept the negative share price response because the SEO provides funding for a profitable investment. In contrast, firms with positive information prefer to pass up the investment rather than issue equity at a low price.

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Fed, FDIC, and “Not Credible” Resolution Plans

Seth GrosshandlerMichael H. Krimminger, and Sean A. O’Neal are Partners at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary Gottlieb publication by Mr. Grosshandler, Mr. Krimminger, Mr. O’Neal, Knox L. McIlwain, and Melissa M. Ruth.

[On April 13, 2016], the Federal Reserve and the FDIC provided feedback on the 2015 resolution plans filed by the eight “first-wave” domestic filers, and issued Guidance to govern their 2017 resolution plans. Most significantly, the Federal Reserve and the FDIC jointly determined that the resolution plans of five financial companies were “not credible” as required by the joint resolution planning rule, 12 C.F.R. Parts 243 and 381. Those five companies were Bank of America, Bank of New York Mellon, JPMorgan Chase, State Street and Wells Fargo. The agencies were unable to agree on a joint determination for the 2015 resolution plans of Goldman Sachs and Morgan Stanley. The Federal Reserve, but not the FDIC, found Morgan Stanley’s plan to be “not credible”, while the agencies reached the reverse judgment on Goldman Sachs’ resolution plan. Finally, the Federal Reserve and the FDIC identified “shortcomings”, but not “deficiencies”, in the Citigroup resolution plan and so did not find that plan to be “not credible.”

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CFPB and Class Action Arbitration

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, Roberto GonzalezElizabeth Sacksteder, Jay Cohen, and Jane O’Brien. The complete publication, including footnotes, is available here.

On May 5, 2016, the Consumer Financial Protection Bureau (CFPB) released a 377-page notice of proposed rulemaking that would prohibit, going forward, banks and a variety of other companies from including in contracts arbitration clauses that would prevent consumers from filing or participating in class-action litigation. According to the press release: “With this contract gotcha, companies can sidestep the legal system, avoid accountability, and continue to pursue profitable practices that may violate the law and harm countless consumers.” The proposed regulation would continue to allow companies to insist on arbitration instead of individual litigation, but would require companies to submit records related to arbitrations to CFPB for monitoring and for potential posting in some form on its website. The public will have 90 days to comment on the proposal once it is published in the Federal Register.

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SEC Guidance on Non-GAAP Financial Measures

Howard B. Dicker is a partner in the Public Company Advisory Group of Weil, Gotshal & Manges LLP. This post is based on a Weil publication.

On May 17, 2016, the U.S. Securities and Exchange Commission staff issued important updates to its Compliance and Disclosure Interpretations regarding the use of non-GAAP financial measures. Last significantly modified in January 2010, these interpretations provide new guidance to help companies avoid presenting financial information in an improper or potentially misleading manner.

Below we look at just one significant interpretation, which applies to the frequent issue of how prominently non-GAAP financial measures in filings and earnings releases are presented in relation to GAAP measures.

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Weekly Roundup: May 20–May 26, 2016


More from:

This roundup contains a collection of the posts published on the Forum during the week of May 20–May 26, 2016.



Resource Accumulation through Economic Ties


Equity in LLC Law?


Italian Boards and The Strange Case of the Minority Becoming Majority








Dual Ownership, Returns, and Voting in Mergers





Investors and Board Composition

Paula Loop is Leader of the Governance Insights Center at PricewaterhouseCoopers LLP. This post is based on a PwC publication by Ms. Loop and Paul DeNicola. The complete publication, including footnotes and appendix, is available here.

In today’s business environment, companies face numerous challenges that can impact success—from emerging technologies to changing regulatory requirements and cybersecurity concerns. As a result, the expertise, experience, and diversity of perspective in the boardroom play a more critical role than ever in ensuring effective oversight. At the same time, many investors and other stakeholders are seeking influence on board composition. They want more information about a company’s director nominees. They also want to know that boards and their nominating and governance committees are appropriately considering director tenure, board diversity and the results of board self-evaluations when making director nominations. All of this is occurring within an environment of aggressive shareholder activism, in which board composition often becomes a central focus.

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Management Influence on Investors: Evidence from Shareholder Votes on the Frequency of Say on Pay

Fabrizio Ferri is Associate Professor of Accounting at Columbia Business School. This post is based on an article authored by Professor Ferri and David Oesch, Associate Professor of Financial Accounting at the University of Zurich.

In our paper, Management Influence on Investors: Evidence from Shareholder Votes on the Frequency of Say on Pay, forthcoming in the Contemporary Accounting Research, we try to quantify the influence of management recommendations on shareholder votes. In the post-Enron world, firms have become increasingly responsive to shareholder votes, even when non-binding. A key driver of voting outcomes is the recommendations issued by proxy advisors. For example, various studies estimate that ISS recommendations “move” about 25% of the votes, raising legitimate concerns about the quality of these recommendations, the degree of transparency and competition in the proxy advisory industry, potential conflicts of interest, etc. In contrast, we know very little about the influence of management recommendations on shareholder votes. The challenge in empirically evaluating this influence is that management recommendations are typically the same across firms and over time (i.e., in favor of management proposal and against shareholder), making it impossible to estimate their association with shareholder votes.

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The Value of Offshore Secrets: Evidence from the Panama Papers

Hannes Wagner is Associate Professor of Finance at Bocconi University. This post is based on paper authored by Professor Wagner; James O’Donovan of INSEAD; and Stefan Zeume, Assistant Professor of Finance at the University of Michigan.

On April 3, 2016, news sources around the world started reporting about a data leak of 11.5 million confidential documents concerning the business activities of Mossack Fonseca, a Panama-based law firm. The leaked documents implicate a wide range of firms, politicians, and other individuals to have used 214,000 secret shell companies to evade taxes, finance corruption, launder money, violate sanctions, and hide other activities. In our paper entitled The Value of Offshore Secrets—Evidence from the Panama Papers, which was recently made available on SSRN, we use this data leak to study whether and how the use of offshore vehicles creates firm value.

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Recent Criticism of the SEC: Fair or Unfair?

Jonathan N. Eisenberg is partner in the Government Enforcement practice at K&L Gates LLP. This post is based on a K&L Gates publication by Mr. Eisenberg and Shanda Hastings. The complete publication, including footnotes, is available here.

Over the last few years, the SEC has been criticized for (1) failing to “consistently and aggressively enforce the securities laws and protect investors and the public,” (2) obtaining sanctions that amount to only a slap on the wrist against major financial institutions, (3) settling rather than taking big banks to trial, 4) failing to name individuals in enforcement actions, (5) failing to require that companies admit guilt, (6) granting waivers from the collateral consequences of enforcement actions,6 and, most recently, (7) failing to prevent a prominent hedge-fund manager from getting back into the hedge-fund business.

We evaluate below whether the facts support those criticisms. We find that they support the opposite conclusions.

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