Yearly Archives: 2017

Déjà Vu All Over Again: New Efforts to Reinstate the Glass-Steagall Act

V. Gerard Comizio is a partner and Nathan S. Brownback is an associate at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank publication by Mr. Comizio and Mr. Brownback.

The Trump administration has sent signals that the White House would support legislation that would function to reinstate the provisions of the Depression-era Glass-Steagall Act separating commercial and investment banking, which were repealed by the Gramm-Leach-Bliley Act of 1999 (the “GLBA”).

Notably, a bill with bipartisan sponsorship, the 21st Century Glass-Steagall Act, has been introduced in the Senate that would reinstate the Glass-Steagall Act’s separation of commercial and investment banking and also restrict long-standing bank and bank holding company powers and activities.

READ MORE »

The Failure of Federal Incorporation Law: A Public Choice Perspective

Sung Hui Kim is Professor of Law at the University of California. This post is based on a recent paper by Professor Kim, forthcoming as a chapter in In Can Delaware be Dethroned? Evaluating Delaware’s Dominance of Corporate Law. This post is part of the Delaware law series; links to other posts in the series are available here. Related research from the Program on Corporate Governance includes Delaware Law as Lingua Franca: Evidence from VC-Backed Startups by Jesse Fried, Brian J. Broughman, and Darian M. Ibrahim (discussed on the Forum here); Federal Corporate Law: Lessons From History, by Lucian Bebchuk and Assaf Hamdani; and The Market for Corporate Law by Lucian Bebchuk, Oren Bar-Gill and Michal Barzuza.

Delaware’s domination of corporate law in the U.S. has long fascinated academics. While there is wide consensus that Delaware’s preeminence arose out of decades of state-to-state competitive pressures, there is sharp disagreement and debate about the nature of those competitive pressures, that is, whether the competition has been a salutary or nefarious one—a race to the top or to the bottom. Both sides of the debate believe that states compete to attract corporate franchise tax revenues, but they differ as to what the estimated $500 million annual prize incentivizes states to do. Race-to-the-top theorists argue that the prize motivates states to compete to make better, more efficient, corporate law in an effort to discourage shareholders from causing a reincorporation outside of Delaware. Race-to-the-bottom theorists argue that the prize motivates states to pander to managerial interests because managers are the constituents that control the initial incorporation decision.

READ MORE »

Assessing ISS’ Newly Selected GAAP Financial Metrics for CEO P4P Alignment: How Can Companies Respond?

Ira Kay is a Managing Partner at Pay Governance LLC. This post is based on a Pay Governance publication by Mr. Kay, Marizu Madu, and Linda Pappas.

Say on Pay (SOP) and shareholder advisor vote recommendations have caused a increase in the use of relative total shareholder return (TSR) as a long-term incentive (LTI) plan performance metric. Relative TSR prevalence in LTI plans has nearly doubled over the past 5 years, used by approximately 50% of companies of all sizes and industries. This is largely due to shareholder advisors, such as Institutional Shareholder Services (ISS), using TSR as the primary metric in their relative pay for performance (P4P) quantitative evaluations. ISS is appropriately attempting to enhance its company performance assessment model by adding 6 metrics. [1] This new approach is clearly a response to critics, but it presents a new set of challenges.

READ MORE »

The Corporate Demand for External Connectivity: Pricing Boardroom Social Capital

David Javakhadze is Assistant Professor of Finance at Florida Atlantic University. This post is based on a recent paper by Professor Javakhadze; Stephen P. Ferris, Professor and Director of the Financial Research Institute at the University of Missouri at Columbia; and Yun Liu, Assistant Professor of Finance at the Claremont Colleges’ Keck Graduate Institute.

While there has been considerable public focus and academic research on executive compensation, boardroom compensation has received relatively little attention. Boards perform increasingly crucial functions of advising and monitoring the executive team. Consequently, boardroom performance has important implications for corporate decisions. As a result of the 2008 financial crisis boardroom functioning, including director expertise, oversight practices, compensation, and board structure, has been under careful scrutiny by shareholders as well as by regulators, requiring directors to be more actively involved in strategic decision-making.

READ MORE »

The Long Game: Incentive Pay Aims at Generating Lasting Return

Matthew Goforth is Research Manager at Equilar, Inc. This post is based on an Equilar publication which originally appeared in the Spring 2017 issue of C-Suite magazine, available here. Related research from the Program on Corporate Governance includes: Paying for Long-Term Performance by Lucian Bebchuk and Jesse Fried (discussed on the Forum here).

Since Say on Pay went into effect in 2011, the concept of “pay for performance” has been the foremost trend in executive compensation, both in principle and practice. In response to regulation and pressure from proxy advisors and investors, companies have moved away from discretionary annual bonuses and stock options and toward performance share grants over the last five years.

Public company compensation committees face a number of competing interests, and as a part of the board of directors, they are tasked with determining the amount and structure of the company’s executive compensation program. Recruiting and retaining the most talented executives is their initial focus, and executive pay typically reflects trends in the marketplace. Compensation planning becomes more complicated as boards attempt to adopt a pay philosophy they believe aligns the interests of management and shareholders.

READ MORE »

The Limits of Gatekeeper Liability

Andrew Tuch is Associate Professor of Law at Washington University School of Law. This post is based on an article authored by Professor Tuch, forthcoming in the Washington & Lee Law Review.

Gatekeeper liability—the framework under which actors such as law firms, investment banks, and accountants face liability for wrongs committed by their corporate clients—is one of the most widely used strategies for controlling corporate wrongdoing. It nevertheless faces several well recognized flaws: gatekeepers may seek more to escape liability than to prevent wrongdoing by their clients; gatekeepers depend financially on the clients whose conduct they must monitor; and multiple gatekeepers act on major transactions, interacting with one another in ways that may produce gaps and overlaps in the gatekeeping net, undermining its deterrent force.

READ MORE »

Why Your Board Should Refocus on Key Risks

Paula Loop is Leader of the Governance Insights Center at PricewaterhouseCoopers LLP. This post is based on a PwC publication by Ms. Loop.

How well management handles key risks often determines whether the company will achieve its strategic goals.

It’s easy for boards to get bogged down discussing financial and compliance risks. But that can mean that they’re not paying enough attention to risks that are truly critical. Directors need to make sure they’re focusing on the right key risks—the ones that could spell success or failure for the company.

READ MORE »

On Long-Tenured Independent Directors

Stefano Bonini is Assistant Professor of Economics at Stevens Institute of Technology. This post is based on a recent paper by Professor Bonini; Kose John, Charles William Gerstenberg Professor of Banking and Finance at NYU Stern School of Business; and Justin Deng and Mascia Ferrari, both of NYU Stern School of Business.

A growing number of countries, such as UK and France, have adopted tenure-related guidelines or tenure restrictions for independent directors. Most countries adopt a comply-or-explain approach to regulating tenure recommending a maximum tenure for a corporate director between nine and twelve years. In the United States however, where explicit limits are absent, a recent survey by GMI Ratings, the leading independent provider of global corporate governance and research, shows that 24% of independent directors in Russel 3,000 firms have continuously served in the same firm for fifteen years or more.

We argue that long-tenured directors are superiorly skilled individuals who provide tangible value added to their firms. An extension of tenure length allows directors to accumulate information about past events in the firm and about responses to exogenous market shocks that help firms weather crises and discontinuities. In support of the view that the effectiveness of one independent director is also the result of a long build-up process, William George, a Harvard Business School professor and independent director, stated: “When directors are truly independent of the companies they serve, they generally lack the […] knowledge about the industry or business […]. [O]f the nine boards I served on as an independent director I had industry-specific knowledge in exactly none of them.”

READ MORE »

State Bank Regulators Challenge OCC’s Authority to Issue Fintech Charters

V. Gerard Comizio is a partner and Nathan S. Brownback is an associate at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank publication by Mr. Comizio and Mr. Brownback.

On April 26, 2017, the Conference of State Bank Supervisors (“CSBS”) sued the Office of the Comptroller of the Currency (“OCC”) in federal court in Conference of State Bank Supervisors v. OCC, alleging that the OCC’s plan to charter fintech companies as special purpose national banks is unlawful because the process the OCC used to develop the plan was procedurally defective and because issuing such charters would exceed the OCC’s authority.

On May 12, the New York State Department of Financial Services (“DFS”), which is one of the state bank regulators that make up the CSBS, separately sued the OCC in federal court in Vullo v. OCC, alleging, similarly, that the OCC exceeded its authority in planning to issue the charters, and emphasizing that the planned federal charter could threaten New York consumers.

READ MORE »

The Role of Social Capital in Corporations: A Review

Henri Servaes is the Richard Brealey Professor of Corporate Governance and Professor of Finance at London Business School; Research Associate of the European Corporate Governance Institute; and Research Fellow of the Centre for Economic Policy Research. Ane Tamayo is Professor of Accounting at the London School of Economics and Political Science. This post is based on a recent article by Professor Servaes and Professor Tamayo, forthcoming in the Oxford Review of Economic Policy.

While the importance of Physical Capital, Human Capital, and Intellectual Capital in corporations is well understood, there is another type of capital, perhaps equally important, which has received a lot less attention: Social Capital—broadly defined as the quality of the relationships that a firm, and its executives and employees, have built with other stakeholders. To date, most research on social capital has focused on the social capital of countries (or regions within countries), generally measured by the civic engagement of the population or the willingness of people in a society to trust each other, concluding that regions with more social capital enjoy higher economic growth. In a review article forthcoming in the Oxford Review of Economic Policy, we argue that the notion of social capital can also be applied to corporations.

READ MORE »

Page 47 of 83
1 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 83