Yearly Archives: 2018

My Beef with Stakeholders: Remarks at the 17th Annual SEC Conference, Center for Corporate Reporting and Governance

Hester M. Peirce is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent remarks at the 17th Annual SEC Conference, Center for Corporate Reporting and Governance, available here. The views expressed in this post are those of Ms. Peirce and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Good morning and thank you, Fram, for the kind introduction. Before I begin my remarks, I have to give my standard disclaimer, which is that my remarks reflect only my own views and not those of the Commission or my fellow Commissioners.

I greatly appreciate the opportunity to be part of this conference. Last time I flew to California, the skies were so clear that I was able to keep an eye on the changing landscape below all the way across the country. The vastness and great variety was striking. Having grown up in Ohio, I can attest to the fact that the magnificence of the landscape is just one of the features that makes so-called flyover country remarkably beautiful. The wealth of talent and ingenuity in the people of the heartland is where the real beauty lies.

Indeed, one of the issues on which I am committed to working with Chairman Clayton and my fellow commissioners is ways to unlock the deep potential of the middle of the country by ensuring that our securities laws do not inadvertently prevent people from investing in their own communities. Accredited investor rules, for example, have a different effect in Ohio, where incomes pale in comparison to lofty coastal paychecks. We also can work with states to ensure that the SEC does not stand in the way of state efforts to create innovation-friendly regulatory regimes. As the Chairman said when he spoke in Nashville several weeks ago, “There are obviously a lot of miles, many good, talented people, and many promising companies between the coasts,” and I agree with the Chairman that we should “make sure our regulation of capital formation enables capital to flow to the areas in between.” [1]

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California Law Awaiting Governor’s Signature Exceeds State’s Jurisdiction

Theodore N. Mirvis and Kevin S. Schwartz are partners at Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell Lipton firm memorandum by Mr. Mirvis and Mr. Schwartz.

We previously reported that California made headlines this summer with legislative action that would institute gender quotas for boards of directors of public companies headquartered in the state. This first-of-its-kind measure has now been approved by both legislative chambers and may be signed by the Governor in the coming week. California’s commitment to increasing diversity in the boardroom is laudable, but this proposed law would unconstitutionally sweep within its scope all publicly traded corporations with headquarters in California, even if those corporations are chartered outside of California. This constitutional infirmity warrants immediate reconsideration.

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Audit Committee Disclosures

Steve W. Klemash is Americas Leader, Kellie C. Huennekens is Associate Director, and Jennifer Lee is Senior Manager, all at the EY Center for Board Matters. This post is based on their EY memorandum.

The EY Center for Board Matters has reviewed voluntary proxy statement disclosures by Fortune 100 companies relating to audit committees and the audit since 2012. We examine and track these disclosures because of their value in informing investors about the important role that audit committees play in investor protection through their independent oversight of the external audit. This oversight, in turn, enhances investor confidence in financial reporting. Proxy disclosures in 2018 continue to show a year-over-year trend of increasing voluntary audit-related disclosures.

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From Duty to Power

Brett McDonnell is the Dorsey & Whitney Chair and Professor of Law University of Minnesota Law School. This post is based on a recent article by Professor McDonnell, forthcoming in the Alabama Law Review. Related research from the Program on Corporate Governance includes Socially Responsible Firms by Alan Ferrell, Hao Liang, and Luc Renneboog (discussed on the Forum here) and Social Responsibility Resolutions by Scott Hirst (discussed on the Forum here).

A growing number of businesses aspire to be social enterprises, adopting a dual mission of generating profits for investors while also pursuing a greater good. Entrepreneurs and investors, especially younger millennials, want to make a decent living but in an organization they think makes the world a better place. New statutes, especially those creating an entity called the benefit corporation, attempt to help social enterprises credibly commit to this dual mission using the governance tools of fiduciary duty and disclosure. There is much doubt, though, whether those tools are strong enough. In a new article I argue that voting power for stakeholders is a stronger tool that more social enterprises should use. In this my argument resembles Senator Elizabeth Warren’s proposed new Accountable Capitalism Act, but with a crucial difference.

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Machine Learning and Artificial Intelligence in Financial Services

Pamela L. Marcogliese and Colin D. Lloyd are partners and Sandra M. Rocks is counsel at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary memorandum by Ms. Marcogliese, Mr. Lloyd, Ms. Rocks, and Lauren Gilbert.

Artificial intelligence and machine learning (for simplicity, we refer to these concepts together as “AI”) [1] have been hot topics in the financial services industry in recent years as the industry wrestles with how to harness technological innovations. In its report on Nonbank Financials, Fintech, and Innovation released on July 31st, the Treasury Department (“Treasury”) generally embraced AI and recommended facilitating the further development and incorporation of such technologies into the financial services industry to realize the potential the technologies can provide for financial services and the broader economy.

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Unicorn Stock Options—Golden Goose or Trojan Horse?

Anat Alon-Beck is the 2017-2019 Jacobson Fellow in Law and Business at New York University School of Law. This post is based on a recent paper by Dr. Alon-Beck.

Eight years ago, the idea that a venture capital (VC) backed startup could reach an aggressive valuation of over $1 billion without going public was inconceivable. But today the Wall Street Journal, Fortune Magazine, CNNMoney and CB Insights, each keeps a list of such companies and their valuations, and the list keeps growing. With the decline in the U.S. market for initial public offerings (“IPOs”), which is caused in part by the availability of new private capital sources, there is a rise in the number of privately held firms that are valued at $1 billion or more (“unicorns”).

The U.S. has the largest concentration of unicorns in the world. Whereas, in the recent past, startups tended to go public or be sold approximately four years after founding, today the average time to IPO or sale is eleven years. In a recent paper, Unicorn Stock Options—Golden Goose or Trojan Horse?, I argue that by staying private and not pursuing an IPO or sales transaction, the unicorns are delaying liquidity events for their shareholders, including employees. In the new economy, knowledgeable employees contribute to the firm’s intangible assets.

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Fake News: Evidence from Financial Markets

Shimon Kogan is Associate Professor of Finance at IDC Herzliya; Tobias J. Moskowitz is the Dean Takahashi ’80 B.A., ’83 M.P.P.M. Professor of Finance at the Yale School of Management; and Marina Niessner is Vice President at AQR Capital Management. This post is based on their recent paper.

An increasing number of professional and retail investors obtain information about financial markets from knowledge sharing platforms. For example, a 2015 study by Greenwich Associates found that 48% of institutional investors use social media to “read timely news.” While crowd-sourced outlets can lower the cost of information acquisition and speed its dissemination, they also provide a venue for interested parties to spread fake information in an attempt to manipulate the markets. In this paper, we employ a methodology developed by linguistic psychologists to identify a large set of fake articles on financial knowledge sharing platforms. We document their prevalence on these platforms, and examine the effect of fake news on volume, volatility, and prices. We further document a broader spill-over effect of fake articles on all news posted on knowledge sharing platforms. Using a clean natural experiment, we show that after investors are made aware of the presence of fake news on knowledge sharing platforms, the effect that fake and non-fake articles have on the trading volume and volatility goes down substantially.

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Confronting a New Agency Problem

Adi Libson is associate professor at Bar-Ilan University. This post is based on a recent article by Professor Libson, forthcoming in the U.C. Irvine Law Review. Related research from the Program on Corporate Governance includes The Agency Problems of Institutional Investors by Lucian Bebchuk, Alma Cohen, and Scott Hirst (discussed on the Forum here) and Social Responsibility Resolutions by Scott Hirst (discussed on the Forum here).

2016 Nobel Laureate Oliver Hart and Professor Luigi Zingales have recently published an article justifying companies’ pursuit of social objectives at the expense of profits from within the shareholder primacy framework. They argue that in cases in which shareholders have social preferences besides maximization of profits, the maximization of their welfare requires managers and the directors to take these preferences into account.

My article, Taking Shareholders’ Social Preferences Seriously: Confronting a New Agency Problem, highlights an important consequence of this approach: a new agency problem between managers and shareholders regarding social preferences. It argues that there exists a systemic gap between managers and shareholders in regards to prosocial preferences. Shareholders have a greater tendency to sacrifice profits in order to promote a social goal than managers, who are more sensitive to the bottom line profit. Data regarding shareholders’ proposals during the 2016 proxy season support this claim. Among the 916 proposals of shareholders, 299 were aimed at enhancing the corporations’ engagement to promote social objectives such as diversity, environmental protection, and minimum wage. No proposals were made for scaling down social objectives in order to increase profits. There are two reasons for such systemic gap: managers’ human capital investment in the firm is less diversified than that of shareholders; and the existence of bonding mechanisms such as options and bonuses which intensifies managers’ sensitivity to the firm’s profits.

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Weekly Roundup: September 14-20, 2018


More from:

This roundup contains a collection of the posts published on the Forum during the week of September 14–20, 2018.





Statement on Shareholder Voting


Remarks to the SEC Investor Advisory Committee


Streamlined SEC Disclosure Requirements


Limiting the Reach of the FCPA




SEC Ratification for Defective Administrative Proceedings







Private Equity and Blockchain: New Infrastructure or New Asset Class?


The Law and Economics of Environmental, Social, and Governance Investing by a Fiduciary


Expulsion of LLC Member


Unfair Exchange: The State of America’s Stock Markets

Robert J. Jackson, Jr. is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on his recent remarks at George Mason University, available here. The views expressed in the post are those of Commissioner Jackson and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

Thank you so much, J.W. [Verret] and Ty [Gellasch], for that incredibly kind introduction. It’s a real honor to be here with you both today at George Mason, talking about the only issue you two have ever agreed on. Literally. They say that politics makes for strange bedfellows, [1] and, for reasons that will soon become clear, nowhere is that more true than when it comes to reforming America’s stock markets—so I’m grateful to both of you for your leadership on these issues.

Now, before I begin, let me just give the standard disclaimer: the views I express here are my own and do not reflect the views of the Commission, my fellow Commissioners, or the SEC’s exceptional Staff. And let me add my own standard caveat: I absolutely expect that, in the fullness of time and wisdom, my colleagues will discover that, as usual, I was right.

As my colleagues can tell you, giving policy speeches like this one can be very stressful. Fortunately, before taking this job I had good practice speaking before skeptical audiences ready with hard questions. You see, this year my mother is celebrating her thirtieth year teaching the second grade, and for almost every one of those years I have visited her students, sat on the classroom carpet, and answered any questions her second graders might have about my life. [2] Trust me: once you’ve survived an hour on Mrs. Jackson’s carpet, you’re ready for anything.

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