Yearly Archives: 2018

Weekly Roundup: July 6-12, 2018


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This roundup contains a collection of the posts published on the Forum during the week of July 6-12, 2018.


Metamorphosis: Digital Assets and the U.S. Securities Laws


SLB 14I: Impact of Board Discussion on 2018 NALs


The Inapplicability of Corwin and Section 220


Are Merger Clauses Value Relevant to Target and Bidder Shareholders?


The Constitutionality of SEC-Appointed Judges


The “Hidden” Tax Cost of Executive Compensation


A Fresh Look at Board Committees


Mutual Fund Transparency and Corporate Myopia


Testing the Limits of Morrison


Investing for Impact


ISS Senate Hearing Statement

Gary Retelny is President and CEO of Institutional Shareholder Services, Inc. This post is based on an ISS statement addressed to the Chairman and a Ranking Member of the U.S. Senate Committee on Banking, Housing and Urban Affairs.

July 6, 2018

The Honorable Michael Crapo
Chairman
Committee on Banking, Housing and Urban Affairs
United States Senate
Washington, D.C. 20510
The Honorable Sherrod Brown
Ranking Member
Committee on Banking, Housing and Urban Affairs
United States Senate
Washington, D.C. 20510

Dear Chairman Crapo and Ranking Member Brown:

Thank you for holding the hearing on June 28, 2018 on “Legislative Proposals to Examine Corporate Governance.” Institutional Shareholder Services Inc. (ISS) thanks the Committee for its commitment to ensuring that corporate governance in the United States is robust and works to support our nation’s capital markets and economy. To this end, ISS respectfully submits this statement, as well as the enclosed document, for inclusion in the hearing record in order to help clarify misconceptions and to correct misinformation about ISS and the proxy advisory industry that were raised during last week’s hearing.

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Investing for Impact

Bhagwan Chowdhry is Professor at UCLA Anderson School of Management; Shaun Davies is Assistant Professor at the University of Colorado at Boulder; and Brian Waters is Assistant Professor at  the University of Colorado, Boulder. This post is based on their recent article, forthcoming in the Review of Financial Studies.

Related research from the Program on Corporate Governance includes Social Responsibility Resolutions by Scott Hirst (discussed on the Forum here); and Socially Responsible Firms by Alan Ferrell (discussed on the Forum here).

Investing in the twenty first century is increasingly influenced by the mantra of “doing well by doing good”—the idea that investors can beat the market by targeting socially valuable businesses. Attractive as it may sound, opportunities for “doing well by doing good” must be limited or else businesses would not need special cajoling to allocate resources to social projects. An important question, then, is how socially-minded investors should direct scarce capital when a business is socially- valuable but not profitable enough to deliver market returns. This is the topic of our research article “Investing for Impact” forthcoming in the Review of Financial Studies. READ MORE »

Testing the Limits of Morrison

Veronica E. Callahan and Vincent A. Sama are partners and Jennifer Wieboldt is an associate at Arnold & Porter Kaye Scholer LLP. This post is based on an Arnold & Porter memorandum by Ms. Callahan, Mr. Sama, Ms. Wieboldt, John A. Freedman, Daphne Morduchowitz, Catherine B. Schumacher.

On June 19, 2018, the Court of Appeals for the Second Circuit in Giunta v. Dingman, No. 17-1375-cv, 2018 WL 3028686 (2d Cir. Jun. 19, 2018), reversed and vacated the dismissal of Plaintiffs’ securities fraud complaint concerning a Bahamian resident and his Bahamian company, Out West Hospitality Ltd. (OWH), holding that there were sufficient allegations of connections with the United States to constitute a “domestic transaction.” The district court had dismissed, citing Morrison v. National Australia Bank, which held that Section 10(b) of the Securities and Exchange Act of 1934 does not apply extraterritorially. [1] Since Morrison was decided, plaintiffs’ lawyers have been testing the limits of what constitutes a “domestic” transaction for purposes of a federal securities fraud claim. The Second Circuit’s decision in Giunta provides additional guidance to practitioners regarding what constitutes a domestic transaction under the Exchange Act and further broadens the scope of what transactions involving foreign corporations can be considered “domestic” and subject to claims under US securities laws.

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Mutual Fund Transparency and Corporate Myopia

Vikas Agarwal is H. Talmage Dobbs, Jr. Chair and Professor of Finance at Georgia State University J. Mack Robinson College of Business; Rahul Vashishtha is Associate Professor of Accounting at Duke University Fuqua School of Business; and Mohan Venkatachalam is R.J. Reynolds Professor of Accounting at Duke University Fuqua School of Business; This post is based on their recent article, forthcoming in the Review of Financial Studies.

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).

Considerable anecdotal and large-sample evidence suggests that pressure from institutional investors to report superior short-run financial performance can hinder investment in innovative projects that hurt short-term profits but generate value in the long run. But what incentivizes institutional investors to place excessive focus on short-run results? In Mutual Fund Transparency and Corporate Myopia (Review of Financial Studies, 2018, 31(5), pp. 1966-2003), we explore the role of mandated frequent disclosures of portfolio holdings by mutual fund managers in shaping their emphasis on short-term corporate performance and the concomitant myopic underinvestment in innovative activities by investee firms’ managers.

Our focus on the mutual fund portfolio disclosures is motivated by prior work that argues that fund managers’ short-term focus stems from their career concerns (e.g., Shleifer and Vishny, 1990) [1] and greater transparency about their actions (i.e., portfolio choices) can amplify these concerns (e.g., Prat, 2005). [2] Intuitively, the idea is that fund managers are concerned about their own performance measurement, which is used by fund investors to infer fund managers’ stock picking abilities. Suppose a fund manager invests in a firm that is making significant R&D investments that will only payoff in the long run but results in poor short-term earnings and stock price performance. Such a fund manager runs the risk that fund investors may attribute poor short-term performance of the investee firm to poor stock selection ability, resulting in fund outflows and job termination. Thus, career concerns reduce fund managers’ willingness to “ride-out” the declines in short-term performance of investee firms. READ MORE »

A Fresh Look at Board Committees

Steve W. Klemash is Americas Leader, Kellie C. Huennekens is Associate Director, and Jamie Smith is Associate Director, at the EY Center for Board Matters. This post is based on their EY publication.

In this age of innovation and transformation, today’s board members face increasingly complex challenges in overseeing corporate culture, strategy and risk oversight.

The digital revolution has facilitated radical changes in business models and made cybersecurity a strategic business imperative. Intangible assets have become a primary driver of long-term value, making the talent agenda mission-critical. Companies are adapting to changes in the labor market, digitization and automation, and a growing spotlight on corporate values and purpose. And all of this is occurring against a backdrop of rising geopolitical tensions and trade policy challenges.

We have tracked board structures since 2013, examining how S&P 500 companies are using board committee structure to address oversight needs. This post is based on a review of the 418 proxy statements filed as of 15 May 2018. The same set of companies in 2018 and 2013 were examined to provide consistency in the review.

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The “Hidden” Tax Cost of Executive Compensation

Kobi Kastiel is Assistant Professor of Law at Tel-Aviv University; and Noam Noked is Assistant Professor of Law at The Chinese University of Hong Kong. This post is based on their recent essay, published in the Stanford Law Review Online.

Related research from the Program on Corporate Governance includes Executive Compensation at Fannie Mae: A Case Study of Perverse Incentives, Nonperformance Pay, and Camouflage, and Stealth Compensation Via Retirement Benefits, both by Lucian Bebchuk and Jesse Fried; and Executive Pensions by Lucian Bebchuk and Robert J. Jackson.

The sweeping tax reform enacted in December 2017 will significantly increase the tax cost of executive compensation in many publicly held corporations where the compensation for each of the top five executives exceeds $1 million. Nonetheless, it is unlikely that these corporations will reduce the executive compensation to offset the increased tax cost, which will likely be shifted to public shareholders.

In our Essay, The ‘Hidden’ Tax Cost of Executive Compensation (forthcoming in the Stanford Law Review Online) we show that this significant tax cost is not transparent to shareholders. Our analysis of a hand-collected dataset of relevant proxy statements that were filed in the first fifty days after the enactment of the tax reform reveals that companies do not provide their shareholders with sufficient information about the tax cost of executive compensation. Therefore, there is a need for a prompt regulatory response. To make the tax cost of executive compensation fully transparent, we propose that the Securities and Exchange Commission (SEC) should adopt new disclosure requirements, outlined in this Essay, as soon as practicable. The disclosure of the tax cost of executive compensation would significantly improve the accuracy of investor information regarding the overall cost of executive compensation, and it could enhance shareholders’ ability to scrutinize compensation practices, all while imposing minimal compliance costs upon companies.

Below we provide a more detailed account of our analysis:

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The Constitutionality of SEC-Appointed Judges

Margaret E. Tahyar, Linda Chatman Thomsen, and Amelia T.R. Starr are partners at Davis Polk & Wardwell LLP. This post is based on a Davis Polk memorandum by Ms. Tahyar, Ms. Thomsen, Ms. Starr, Angela T. Burgess, Martine M. Beamon and Randall D. Guynn.

The Supreme Court’s opinion in Lucia v. SEC, [1] holding that SEC ALJs qualify as Officers of the United States under the Constitution and are therefore subject to the Appointments Clause of the Constitution, is likely to have far-reaching consequences for other federal agencies that rely on ALJs. Any federal agency that appoints ALJs in a manner similar to the SEC is now vulnerable to similar constitutional challenges under the Appointments Clause. Further, while Lucia resolved one constitutional challenge to ALJs, a concurrence by Justice Breyer highlights another significant constitutional question: whether the statutory removal protections afforded to SEC ALJs are also unconstitutional. Accordingly, Lucia presents a number of open questions, including whether the decision can be used to reopen past ALJ adjudications at the SEC or elsewhere, how it will impact existing ALJs and the ALJ appointment process at other federal agencies, and whether ALJs can survive a separate constitutional challenge to their removal protections.

The Potential Implications for Retroactive and Future Challenges to ALJ Decisions Are Numerous

In this post, we first analyze the implications of the Court’s decision, then describe the Court’s reasoning and Justice Breyer’s concurrence, and, finally, address the unanswered questions raised by the Lucia decision.

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Are Merger Clauses Value Relevant to Target and Bidder Shareholders?

John C. Coates is the John F. Cogan, Jr. Professor of Law and Economics at Harvard Law School; Darius Palia is Professor of Finance at Rutgers University; and Ge Wu is a Ph.D. candidate in finance at Rutgers Business School. This post is based on their recent paper.

Related research from the Program on Corporate Governance includes Why Have M&A Contracts Grown? Evidence from Twenty Years of Deals, by John C. Coates, IV; M&A Contracts: Purposes, Types, Regulation, and Patterns of Practice, by John C. Coates, IV; and The New Look of Deal Protection by Fernan Restrepo and Guhan Subramanian (discussed on the Forum here).

A large financial economics literature has found that shareholders earn significant abnormal returns over the market on announcement of a merger and acquisition transaction. These studies have found that target shareholders earn positive abnormal returns of between 20 percent and 35 percent, whereas bidder shareholders earn zero to small negative abnormal returns. However, every merger and acquisition deal is governed by a set of contracts terms that are described in detail in the merger agreement filed with the SEC. These contract terms often called “merger clauses” are negotiated between the bidder and target in order to communicate deal terms, specify risk sharing between the parties, and describes dispute management provisions in case of litigation.

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The Inapplicability of Corwin and Section 220

Sarah T. Runnells Martin is counsel and Michelle Davis is an associate at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on their Skadden memorandum, and is part of the Delaware law series; links to other posts in the series are available here.

Since the Delaware Supreme Court decided Corwin v. KKR Financial Holdings LLC more than two years ago, there has been an open question as to whether and to what extent the principles affirmed in that decision apply in the context of a Section 220 demand to inspect books and records. In our November 2017 issue of Insights: The Delaware Edition, we discussed Salberg v. Genworth Financial, Inc., a case in which the Delaware Court of Chancery appeared to suggest, but did not explicitly hold, that the Corwin doctrine would not prevent a stockholder from obtaining books and records pursuant to Section 220 if the stockholder has stated a proper purpose. In Lavin v. West Corporation, the Court of Chancery addressed the question directly and held that it would not consider the Corwin doctrine when evaluating whether a stockholder seeking to obtain corporate documents to investigate possible wrongdoing in connection with a merger has met the proper purpose requirement of Section 220.

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