Yearly Archives: 2017

A Modest Proposal? Treasury’s Report on Bank Regulation

Hugh C. Conroy, Jr. is Counsel and Patrick Fuller is Senior Attorney at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a recent Cleary Gottlieb publication by Mr. Conroy, Mr. Fuller, Michael Krimminger, Derek Bush, Katherine Mooney Carroll, and Allison Breault. Additional posts addressing legal and financial implications of the Trump administration are available here.

The Trump Administration’s latest substantive recommendations on modifications to the U.S. financial regulatory regime strike a modest and practical tone, rather than “doing a big number” on the current state of regulation. On June 12, 2017, the Treasury Department released the first of several reports in response to President Trump’s Executive Order 13772, which called on the Treasury Department to report on laws, regulations and other government policies that are inconsistent with enumerated core principles for regulating the U.S. financial system. The Treasury Department’s Report covers depository institutions—generally “banking.” Subsequent reports will cover capital markets, asset management and insurance industries and products and non-bank financial institutions (including fintech).

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Treasury Department Issues Recommendations on Reforming the U.S. Financial System

Lee A. Meyerson is partner and head of Financial Institutions Practice and Spencer A. Sloan is an associate at Simpson, Thacher & Bartlett LLP. This post is based on a Simpson Thacher publication by Mr. Meyerson, Mr. Sloan, and Mark J. Chorazak.

On June 12, 2017, the U.S. Department of the Treasury issued recommendations for streamlining banking regulation and changing key features of the Dodd-Frank Act and other measures taken by regulators following the 2008 financial crisis. The recommendations are included in the first of a series of reports to President Trump pursuant to an Executive Order issued on February 3.

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What Is the Business of Business?

Andreas Nilsson is Founder and CEO of Sonanz GmbH and David T. Robinson is J. Rex Fuqua Distinguished Professor of International Management at The Fuqua School of Business at Duke University. This post is based on a recent paper by Mr. Nilsson and Professor Robinson.

In 1970, Milton Friedman famously argued that the only social responsibility of business was to maximize profits. These profits, if only returned to the firm’s owners (the shareholders, on whose behalf the management should rightfully act), could be put to charitable purposes as shareholders saw fit. By essentially delegating the task of collecting and disbursing taxes to corporate managers, in Friedman’s analysis, shareholders allowed themselves to unwittingly become pawns in a larger battle to derail the capitalist system. Levitt (1958) captured this perspective succinctly when he wrote, “the business of business is profits.”

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Weekly Roundup: June 16–June 22, 2017


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This roundup contains a collection of the posts published on the Forum during the week of June 16–June 22, 2017.










Skin or Skim? Inside Investment and Hedge Fund Performance





House Approves Financial CHOICE Act

This post is based on a Paul, Weiss, Rifkind, Wharton & Garrison LLP publication by Mark S. Bergman, Roberto J. Gonzalez, David Huntington, Raphael M. Russo, and Hank Michael.

On June 8, the House of Representatives passed a revised version of the Financial CHOICE Act (the “Act,” available here) in a 233-186 vote. The Act would repeal or modify significant portions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”) and addresses a wide range of other financial regulations. This bill is the second version of a reform bill that was introduced last year by committee Chairman Jeb Hensarling (R-Texas). In many respects, the Act echoes priorities raised in President Trump’s executive order signed on February 3 (see our client alert here) setting forth “Core Principles” intended to guide the regulation of the U.S. financial system and in his presidential memoranda calling for review of certain features of the Dodd-Frank Act (see our client alert here).

A variety of interest groups, including the Council of Institutional Investors, have expressed strong opposition to the bill, and the chances of the Senate passing the bill in its current form appear low. Nevertheless, the bill will serve as an important reference point in the negotiation of legislation able to attract both House and Senate support. Any final legislation would likely include provisions designed to encourage capital markets activities in the United States and could also address certain provisions of the Dodd-Frank Act, such as those relating to pay ratio and conflict mineral disclosure, that have been the subject of substantial controversy and litigation.

Key provisions of the Act are summarized below. READ MORE »

Balancing the Tension: Current Topics in Executive Compensation

Ira Kay is a Managing Partner at Pay Governance LLC. This post is based on a Pay Governance publication by Mr. Kay, Steve Pakela and Lane Ringlee. 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).

Executive compensation programs at major U.S. companies are crucial for economic success—both for the companies and the economy at large. The topic is complex and controversial, however, with criticisms aimed at the magnitude of pay packages and purported misalignment of compensation with corporate performance and shareholder returns. This contentious environment has been exacerbated by a confluence of proxy advisor influence, regulatory oversight, union criticism, and media scrutiny. The broader income inequality narrative has drawn attention to the compensation provided to U.S. company leadership, exposing companies, boards, and executives to reputational risk. As a result, compensation committees are increasingly struggling to “balance the tension,” motivating executives to increase shareholder value in this regulatory and economic environment.

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Delaware Court of Chancery Finds Vote Coercive and Insufficient to Cleanse Board Action

Scott A. Barshay is partner and Global Head of the Mergers & Acquisitions Practice at Paul, Weiss, Rifkind, Wharton & Garrison LLP. This post is based on a Paul Weiss memorandum by Mr. Barshay, Ariel J. DeckelbaumRoss A. FieldstonJustin G. HamillStephen P. Lamb, and Jeffrey D. Marell. This post is part of the Delaware law series; links to other posts in the series are available here.

In a recent decision in Sciabacucchi v. Liberty Broadband Corporation, Vice Chancellor Glasscock of the Delaware Court of Chancery held that a stockholder vote approving both stock issuances and the grant of a voting proxy to the company’s largest stockholder was “structurally coerced” and therefore insufficient to cleanse board action and invoke business judgment review under Corwin v. KKR Financial Holdings LLC. The court determined that while “inherent coercion” did not exist because the large stockholder did not control the company, the vote was nevertheless structurally coerced as the stockholders were essentially forced to approve those transactions to avoid a detriment, and not due to the transactions themselves being beneficial to the corporation.

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Are Shareholder Proposals on Climate Change Becoming a Thing?

Cydney S. Posner is Special Counsel at Cooley LLP. This post is based on a Cooley publication.

Are we witnessing the beginning of a new trend? The history of shareholder proposals to enhance disclosure regarding climate change has been a dismal one. But suddenly, this proxy season, we have climate change proposals succeeding at two—and, as of [May 31, 2017], three—major companies. Is this the start of something big?

The proposals asked each of the companies—Occidental Petroleum, PPL and ExxonMobil—to issue a report providing a “2 degree scenario analysis”—a term that refers to the goal of the Paris Climate Accord of limiting global temperature increases to 2 degrees Celsius (3.6 degrees Fahrenheit). The report would assess the impact on the company’s asset portfolio of long-term climate change, explaining (as stated in the Occidental proxy) “how capital planning and business strategies incorporate analyses of the short- and long-term financial risks of a lower carbon economy,” including specifically, “the impacts of multiple, fluctuating demand and price scenarios on the company’s existing reserves and resource portfolio.” The proposal to Occidental was submitted by Wespath Investment Management and the Nathan Cummings Foundation and was subsequently supported by a coalition of other large asset owners that included CalPERS, and the proposals to PPL and ExxonMobil were submitted by the New York State Common Retirement Fund.

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Skin or Skim? Inside Investment and Hedge Fund Performance

Arpit Gupta is Assistant Professor of Finance at NYU Stern School of Business. This post is based on a recent paper by Professor Gupta and Kunal Sachdeva, Ph.D. candidate in Finance at Columbia Business School.

Our paper, Skin or Skim? Inside Investment and Hedge Fund Performance, publically available on SSRN, examines the decision of insiders to allocate private capital between funds under their control, and the impact of this “skin in the game” on returns received by outside investors. Delegated asset managers are commonly thought of being compensated only through fees imposed on outside investors. However, access to profitable, but limited, internal investment opportunities can also be a form of compensation for managers. Consider the hedge fund industry, which manages over $3 trillion in assets under management, of which $400 billion can be attributed to investments from insiders and related parties. [1] The discretion of where and how to invest this large allocation of insider capital suggests that returns to insider capital is an important, but previously overlooked, component of hedge fund compensation and potential source of conflict of interest between investors.

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Delaware Appraisal at a Crossroads?

Theodore N. Mirvis is a partner in the Litigation Department at Wachtell, Lipton, Rosen & Katz. This post is based on a publication by Mr. Mirvis. This post is part of the Delaware law series; links to other posts in the series are available here.

The Delaware Supreme Court heard argument recently in the appraisal proceeding arising out of the 2014 acquisition of DFC Global Corporation by Lone Star, a private equity firm. The Court of Chancery had found that the statutory “fair value” of DFC was higher than the deal price, based on a tripartite equal weighting of the transaction price, a DCF valuation, and a comparable company analysis which the court called “a blend of three imperfect techniques.” One key element of the appeal is the proper role of deal price in fair value determinations. The Court of Chancery noting that the sale process was lengthy, involved financial and strategic buyers, and resulted in an arm’s-length sale with no conflicts determined that the deal price was “one measure” of value. But the court gave the deal price limited weight. It found that the sale process coincided with the company’s being subject to “turbulent regulatory waters” that rendered uncertain its future profitability and even viability; the court suggested that the PE buyer may have understood those uncertainties better than other bidders, and been focused as a financial sponsor on achieving a required internal rate of return consistent with its financing constraints, rather than DFC’s fair value.

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