Yearly Archives: 2016

Takeovers and Takings in the Next Economic Crisis

Nestor M. Davidson is Professor of Law at Fordham Urban Law Center. This post is based on Professor Davidson’s recent article, available here.

Economic crises can reverberate in the legal system long after they end. One potential echo from the last recession involves Takings Clause challenges to the federal government’s rescue of several failing companies. As I explain in a recent essay, Resetting the Baseline of Ownership: Takings and Investor Expectations After the Bailouts, perhaps the most significant aspect of these cases is what they signal for investors going forward: the federal government has tremendous latitude to respond to economic crises, a power it may well deploy in the next economic crisis. As I explain in the essay and summarize below, the iterative nature of “regulatory” takings law means that a court’s assessment of an investor’s reasonable expectations will reflect government actions; when the government responds as it did, this may well serve as notice to investors about the potential for a similar response the next time around.

READ MORE »

Weekly Roundup: April 29–May 5, 2016


More from:

This roundup contains a collection of the posts published on the Forum during the week of April 29, 2016 to May 5, 2016.













Incentive Compensation for Financial Institutions: Reproposal

Annette Nazareth is a partner in the Financial Institutions Group at Davis Polk & Wardwell LLP, and a former commissioner at the U.S. Securities and Exchange Commission; Margaret E. Tahyar is a partner in the Financial Institutions Group at Davis Polk & Wardwell LLP. The following post is based on the introduction to a Davis Polk visual memorandum; the full publication, including visuals, tables, and timelines, is available here. Related research from the Program on Corporate Governance includes Regulating Bankers’ Pay by Lucian Bebchuk and Holger Spamann (discussed on the Forum here); The Wages of Failure: Executive Compensation at Bear Stearns and Lehman 2000-2008 by Lucian Bebchuk, Alma Cohen, and Holger Spamann (discussed on the Forum here); How to Fix Bankers’ Pay by Lucian Bebchuk (discussed on the Forum here); and Paying for Long-Term Performance by Lucian Bebchuk and Jesse Fried.

  • Four of the six Agencies have jointly issued a proposed rule implementing Dodd-Frank Act Section 956 regarding incentive compensation paid by covered financial institutions. An earlier version of the rule was proposed in 2011.

READ MORE »

Mergers and Heightened Regulatory Risk

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, Gail Weinstein, Philip Richter, and Bernard A. Nigro Jr.

As U.S. corporations face the later stages of a prolonged economic recovery, with the prospect of slow growth, a number of strategies have been considered to meet the challenge of producing meaningful profit improvement in a short timeframe—with corporations increasingly turning to tax inversion transactions (for the dramatic and immediate reduction of tax expense) and mergers (for the significant expected synergies). At the same time, the U.S. government has evidenced rising skepticism toward inversions and mega-mergers.

READ MORE »

Corporate Resilience to Banking Crises

Ross Levine is Professor of Finance at the University of California, Berkeley. This post is based on an article authored by Professor Levine; Chen Lin, Professor of Finance at the University of Hong Kong; and Wensi Xie, Assistant Professor of Finance at the Chinese University of Hong Kong.

Although banking crises are costly, common, and heavily researched, there is surprisingly little research on corporate resilience to systemic banking crises. In an earlier paper, [1] we showed that strong shareholder protection laws mitigate the adverse effects of banking crises by easing the ability of firms to issue equity when crises curtail the flow of bank credit to firms. But, other factors might also shape the ability of corporations to obtain financing during systemic banking crises.

In our new paper, Corporate Resilience to Banking Crises: The Roles of Trust and Trade Credit, which was recently made publicly available on SSRN, we examine whether social trust affects (a) the ability of firms to obtain financing through informal channels when crises reduce the flow of bank loans to firms and (b) the resilience of corporate profits and employment to systemic banking crises. Social trust refers to the expectations within a community that people will behave in honest and cooperative ways and the extent to which human interactions are governed by the norms of reciprocity and trustworthiness. Informal finance refers to short-term credit provision that occurs beyond the scope of a country’s formal financial and regulatory institutions. For example, firms often receive trade credit that does not involve collateral or promissory notes subject to formal judicial enforcement mechanisms. In communities where individuals are more confident that others will repay them—even when there are no formal enforcement mechanisms underpinning the extension of credit, trade credit is likely to flourish. Thus, when a systemic banking crisis impedes the normal bank-lending channel, social trust might facilitate corporate access to trade credit and partially offset the adverse effects of the crisis on corporate profits and employment. This could be the first-order effect since trade credit is large. It accounts for 25% of the average firm’s total debt liabilities in our sample of over 3500 firms across 34 countries from 1990 to 2011.

READ MORE »

SEC Enforcement and Internal Control Failures

Jason M. Halper is a partner in the Securities Litigation & Regulatory Enforcement Practice Group at Orrick, Herrington & Sutcliffe LLP. This post is based on an Orrick publication by Mr. Halper and William J. Foley Jr.

We have previously written about how, over the past few years, the SEC and other regulatory agencies have devoted substantial resources to investigations regarding allegations that public companies have inadequate internal controls and/or a system for reporting those controls. See here, here and here. That effort shows no signs of waning. As recently as March 23, 2016, the SEC announced a settlement with a multi-national company due in part to the internal controls failures at two foreign subsidiaries. On March 10, 2016, the SEC announced a settlement of claims against Magnum Hunter Resources Corporation in connection with alleged internal control failures. And, on February 17, 2016, the SEC announced a settlement of claims against a biopesticide company, Marrone Bio Innovations, based on the company having reported misstated financial results caused in part by internal control failures. [1]

READ MORE »

What Do Insiders Know?

Peter Cziraki is Assistant Professor of Economics at the University of Toronto. This post is based on an article authored by Professor Cziraki; Evgeny Lyandres, Associate Professor of Finance at Boston University; and Roni Michaely, Professor of Finance at Cornell University.

The evidence that share repurchases and seasoned equity offers (SEOs) contain value-relevant information is extensive in the corporate finance literature. In addition, we also know that insider trading is informative about future firm value. What is less clear is how trading by firms’ insiders prior to corporate events interacts with firms’ actions and whether this interaction contains additional value-relevant information. In our paper, What Do Insiders Know? Evidence from Insider Trading Around Share Repurchases and SEOs, which was recently made publicly available on SSRN, we examine the information contained in insider trades prior to open market share repurchases and seasoned equity offerings using a comprehensive sample of over 4,300 repurchase and nearly 1,800 SEO announcements.

READ MORE »

NASDAQ and Disclosure of Third-Party Compensation for Directors

Lori Zyskowski is a Partner and member of the Securities Regulation and Corporate Governance, and Financial Institutions Practice Groups at Gibson, Dunn & Crutcher LLP. This post is based on a Gibson Dunn publication by Ms. Zyskowski and Gillian McPhee.

NASDAQ has proposed changes to its listing standards to require disclosure of third-party compensation arrangements for directors and nominees. After withdrawing an initial proposal on this subject, NASDAQ has revised the proposal, and it has been published in the Federal Register for public comment. Comments are due on or before April 26, 2016. The proposal is available here, and a redline showing proposed changes to the rule text begins on page 21 of the document.

READ MORE »

How Management Risk Affects Corporate Debt

Michael Weisbach is Professor of Finance at Ohio State University. This post is based on an article authored by Professor Weisbach; Yihui Pan, Assistant Professor of Finance at the University of Utah; and Tracy Yue Wang, Associate Professor of Finance at the University of Minnesota.

A firm’s default risk reflects not only the likelihood that it will have bad luck, but also the risk that the firm’s managerial decisions will lead the firm to default. Management risk occurs when the impact of management on firm value is uncertain, and, in principle, could meaningfully affect the firm’s overall risk. Practitioners have long understood the importance of management risk, and regularly characterize it as an important factor affecting a firm’s risk. However, the academic literature on corporate default risk and the pricing of corporate debt has largely ignored management risk. In our paper, How Management Risk Affects Corporate Debt, which was recently made publicly available on SSRN, we evaluate the extent to which uncertainty about management is a factor that affects a firm’s default risk and the pricing of its debt.

READ MORE »

Indentures and the Brokaw Act

Laurent Alpert is a partner focusing on mergers and acquisitions and Robert Gruszecki is a knowledge management attorney focusing on mergers and acquisitions at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary Gottlieb publication by Mr. Alpert and Mr. Gruszecki. Related research from the Program on Corporate Governance includes The Law and Economics of Blockholder Disclosure by Lucian Bebchuk and Robert J. Jackson Jr. (discussed on the Forum here), and Pre-Disclosure Accumulations by Activist Investors: Evidence and Policy by Lucian Bebchuk, Alon Brav, Robert J. Jackson Jr., and Wei Jiang.

The recently introduced “Brokaw Act” that proposes changes to the rules governing the reporting of ownership in U.S. public companies would expand the definition of “beneficial owner” to include any person with a “pecuniary or indirect pecuniary interest,” including through derivatives, in a particular security (borrowing the concept from the SEC’s insider reporting regime, which captures the “opportunity to profit” from transactions related to the relevant security). If passed and ultimately adopted, these changes would have a significant impact on the reporting obligations of investors by expanding the types of interests that would be counted toward the 5% threshold requiring the filing of a Schedule 13D. Because indentures often incorporate by direct reference the 13(d) concept of beneficial ownership, expansion of the definition could have ripple effects beyond increased public ownership filings.

READ MORE »

Page 56 of 78
1 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 78