Yearly Archives: 2017

Does the Market Value Professional Directors?

Aida Sijamic Wahid is Assistant Professor of Accounting at University of Toronto Rotman School of Management; Kyle T. Welch is Assistant Professor of Accountancy at George Washington University School of Business. This post is based on a recent paper authored by Professor Wahid and Professor Welch.

Professional directors, as often defined by academics and practitioners, are independent directors whose only vocation consists of serving as corporate directors on one or more boards. Such directors hold no other full-time employment. Currently, over 84 percent of corporate boards include at least one professional director. Since the 1970’s academics across disciplines have argued that professional directors enhancing corporate governance (e.g. Eisenburg 1975, Barr 1976, Gilson and Kraakman 1991, Fram 2005, Pozen 2010). Many argue that specialized labor on boards will lead to higher quality and more rigorous governance as more dedicated directors have fewer competing commitments (e.g. Fram 2005, Pozen 2010, Bainbridge and Henderson 2013). These arguments seemed to have gained currency in practice as the portion of boards composed of professional directors has increased over the last decade. In addition, a survey conducted in 2004 found that around 67 percent of directors asked were in favor of appointing professional directors to improve board quality (Felton 2004).

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New York Cybersecurity Regulations for Financial Institutions Enter Into Effect

Michael Krimminger is a partner at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary Gottlieb publication by Mr. Krimminger, Jonathan Kolodner, Daniel Ilan and Katie Dunn.

While the New York Cybersecurity Regulations represent a softening in key respects from the requirements set forth in the initial proposal, the regulations impose minimum standards that exceed existing federal standards and introduce new requirements, including obligations to critically evaluate cybersecurity practices to ensure compliance, maintain detailed documentation demonstrating compliance and report cyber events to the New York Department of Financial Services.

Overview

On March 1, 2017, the New York Department of Financial Services’ (DFS) Cybersecurity Regulations (the Regulations) entered into effect. [1] Under the Regulations, any individual or non-governmental partnership, corporation, branch, agency, association or other entity operating under a license, registration, charter, certificate, permit, accreditation or similar authorization under New York banking, insurance or financial services laws (with narrow exceptions described below) (Covered Entities) is required to formally assess its cybersecurity risks and establish and maintain a cybersecurity program designed to address such risks in a “robust” fashion.

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Corporate Governance Update: Preparing for and Responding to Shareholder Activism in 2017

David A. Katz is a partner and Laura A. McIntosh is a consulting attorney at Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell Lipton publication by Mr. Katz and Ms. McIntosh.

Activist investors are taking advantage of favorable conditions in the 2017 market environment to further their activist agendas. Activists have an estimated $243 billion in assets under management and are eager to recoup losses from 2016, when the S&P 500 outperformed activist funds as a whole. Companies should review their overall preparedness, take a close look at their potential vulnerabilities to activist attack, and proactively shore up any weaknesses to the extent possible. Anticipating likely avenues of attack will help boards of directors to be prepared and, if necessary, to implement promptly a disciplined and focused plan of response.

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Is the American Public Corporation in Trouble?

Kathleen M. Kahle is Thomas C. Moses Professor in Finance at the University of Arizona and René M. Stulz is Everett D. Reese Chair of Banking and Monetary Economics and the Director of the Dice Center for Research in Financial Economics at The Ohio State University. This post is based on a recent paper by Professor Kahle and Professor Stulz.

In his famous 1989 Harvard Business Review article predicting the demise of the public corporation, Jensen argues that public companies are inefficient organizational forms because private firms can better resolve agency conflicts between investors and managers. His prediction initially appeared to be invalid. The number of public firms increased sharply in the years following the article’s publication. However, as Doidge, Karolyi, and Stulz show in the March 2017 issue of the Journal of Financial Economics, the number of listed firms peaked in 1997 and has since fallen by half, such that there are fewer public corporations today than forty years ago. Does this fall vindicate Jensen?  Is the public corporation in trouble?

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Weekly Roundup: March 17–23, 2017


More from:

This roundup contains a collection of the posts published on the Forum during the week of March 17–23, 2017.









Gender Diversity at Silicon Valley Public Companies 2016


Majority Voting: Latest Developments in Canada





The “Corporate Governance Misalignment” Problem

David J. Berger is Partner at Wilson Sonsini Goodrich & Rosati. This post is based on Mr. Berger’s recent remarks at the SEC Investor Advisory Committee, available here.

On March 9, 2017, the SEC’s Investor Advisory Committee (“IAC”) held an open meeting to discuss, among other things, unequal voting rights of common stock. I was one of four presenters to the IAC, and my presentation focused on how what I call the “corporate governance misalignment” has led many successful companies, especially technology companies, to adopt dual-class (or multi-class) stock in recent years.

The presentation asked an important—but unspoken—question in corporate governance today: if corporate governance is fundamental to good corporate performance (as I believe it is) why are many of today’s most innovative and successful companies considered to have bad (or at least below average) corporate governance? More broadly, why is the most dynamic sector of this country’s economy—the technology sector, best represented by Silicon Valley—also generally viewed to have poor corporate governance?

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Reforming Culture and Conduct in the Financial Services Industry: How Can Lawyers Help?

Michael Held is general counsel and executive vice president of the Legal Group at the Federal Reserve Bank of New York. This post is based on Mr. Held’s recent remarks at Yale Law School’s Chirelstein Colloquium. The views expressed in this post are those of Mr. Held and do not necessarily reflect those of the Federal Open Market Committee or the Federal Reserve System.

My topic today is culture in financial services. Reform of culture has been a priority for the Federal Reserve Bank of New York for several years. Many of the observations I will share today are based on that work. But, as always, what I have to say reflects my own views and not necessarily those of the Federal Reserve Bank of New York or the Federal Reserve System.[1]

My thesis is that lawyers should play important roles at financial firms as advisors not just on law—what is legal or illegal—but also on culture. As I see it, culture is distinct from both public law and private rules. That doesn’t mean that culture is completely independent of either. Indeed, a group’s culture often informs and is informed by its rules. But culture is a powerful force in its own right.

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Anti-Activist Poison Pills

Marcel Kahan is George T. Lowy Professor of Law at NYU School of Law and Edward B. Rock is Professor of Law at NYU School of Law. This post is based on a recent paper by Professor Kahan and Professor Rock. 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 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.

Hedge funds have become active in corporate governance. They push for changes in strategy, including making very specific proposals, and sometimes seek (and secure) board representation. They do this by buying shares, conducting public campaigns, lobbying managers and other shareholders, and sometimes running a proxy contest. In response, boards of directors have adopted a variety of “defensive measures” including deploying the “poison pill” shareholder rights plan against activists.

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The Rise of Settled Proxy Fights

Jason Frankl is Senior Managing Director and Steven Balet is Managing Director at FTI Consulting. This post is based on an FTI publication by Mr. Frankl, Mr. Balet, and Merritt Moran.

Shareholder activists showed no signs of slowing down in 2016. These investors continue to instill fear  in corporate board rooms across America and bring their concerns to the public as illustrated by the growing number of proxy fights; 110 in 2016 alone, a 43% surge over 2012. [1] In that time, companies have more frequently succumbed to these investors and at times, accepted unfavorable settlement terms instead of pushing forward and fighting through a proxy contest.

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Majority Voting: Latest Developments in Canada

Stephen Erlichman is partner at Fasken Martineau DuMoulin LLP and Executive Director at the Canadian Coalition for Good Governance. This post is based on a Fasken Martineau publication by Mr. Erlichman.

previous post on this site was written about (i) the Toronto Stock Exchange (“TSX”) adopting a majority voting listing requirement, effective June 30, 2014, which requires each director of a TSX listed issuer (other than those which are majority controlled) to be elected by a majority of the votes cast, other than at contested meetings (the “TSX Majority Voting Requirement”) and (ii) Bill C-25 which was introduced by the federal Canadian government on September 28, 2016 and proposes amendments to the Canada Business Corporations Act (“CBCA”) that include true majority voting (i.e., by requiring shareholders to cast their votes “for” or “against” each individual director’s election and prohibiting a director who has not been elected by a majority of the votes cast from serving as a director except in prescribed circumstances) (the “Bill C-25 Amendments”). This post explains the latest developments in Canada with respect to both of these initiatives, as well as a further development with respect to majority voting in the Province of Ontario.

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