Monthly Archives: February 2018

Regulating Public Offerings of Truly New Securities: First Principles

Merritt B. Fox is Michael E. Patterson Professor of Law and the NASDAQ Professor for the Law and Economics of Capital Markets at Columbia Law School. This post is based on his recent article, published in the Duke Law Journal.

Much attention has been paid recently to fostering the ability of small and medium size enterprises (SMEs) to raise capital through offerings that lead to liquid trading of their shares. Liquidity makes the shares more valuable to prospective investors, who will therefore be willing to pay more for them. The traditional route to achieving such liquidity has been an IPO registered under the Securities Act. Registration has proven impracticably burdensome for many SMEs, however. Under the JOBS Act and the FAST ACT, Congress has reacted by creating pathways for more lightly regulated “quasi-IPOs.” These reforms are a brave experiment, but one likely to end poorly. In creating these pathways, Congress has ignored economic principles relating to the market-destroying information asymmetries between potential investors and the issuing firm. A more promising approach is the SEC’s current Disclosure Effectiveness Initiative, also triggered by Congressional action, which may lead to a cost-benefit-based paring of the questions that must be answered under the traditional registration process and periodically thereafter. Such a streamlined set of questions could help at least some SMEs. Whatever the regulatory reform, however, the hard reality is that the cost of compliance will still make a public offering an impractical form of finance for most firms below a certain size.

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Updated BlackRock Proxy Voting Guidelines

Ellen J. Odoner is partner and Aabha Sharma is an associate at Weil, Gotshal & Manges LLP. This post is based on a Weil publication by Ms. Odoner and Ms. Sharma.

BlackRock recently published its updated Proxy Voting Guidelines for U.S. public companies. The guidelines are in keeping with the perspectives expressed in BlackRock’s October 2017 Investment Stewardship Global Corporate Governance and Engagement Principles and CEO Laurence D. Fink’s most recent annual letter to public company CEOs. Overall, the guidelines indicate that BlackRock—like a growing number of other significant institutional investors—intends to use its proxy voting power to effect change where it believes circumstances warrant and is deeply focused on environmental and social (E&S) risk reporting and engagement. Key takeaways are as follows:

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Weekly Roundup: February 2–8, 2018


More from:

This roundup contains a collection of the posts published on the Forum during the week of February 2–8, 2018.

Stock Market Evaluation, Moon Shots, and Corporate Innovation




FSOC Designation Treasury Report: A Fundamental Shift


Underwriter Competition and Bargaining Power in the Corporate Bond Market


Valuable Board Assessments



Dinner Table Human Capital and Entrepreneurship



HLS Forum Sets New Records in 2017


Institutional Investor Engagement: How to Create a “Stewardship Culture”



Virtual Currencies


Cryptocurrency 2018



Will Tenure Voting Give Corporate Managers Lifetime Tenure?

Will Tenure Voting Give Corporate Managers Lifetime Tenure?

Paul H. Edelman is Professor of Mathematics and Professor of Law at Vanderbilt University; Wei Jiang is Arthur F. Burns Professor of Free and Competitive Enterprise at Columbia Business School; and Randall S. Thomas is John S. Beasley II Chair in Law and Business at Vanderbilt Law School. This post is based on their recent article, forthcoming  in the Texas Law Review. Related research from the Program on Corporate Governance includes The Untenable Case for Perpetual Dual-Class Stock by Lucian Bebchuk and Kobi Kastiel (discussed on the Forum here).

In the past decade, many household name companies, including Alibaba, Facebook and Google (now Alphabet, Inc.), have adopted management-friendly dual-class voting systems justified as giving their executives the freedom to operate the companies toward long term value maximization and sheltering them from shareholder pressures for short-term outcomes. However, many institutional investors dislike these structures because they insulate managers from shareholder monitoring and create impenetrable obstacles to change of control transactions. In reaction to pressure from these large shareholders, the S&P 500 recently decided to bar newcomer companies with multiple classes of shares from its flagship index.

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SLB No. 14I Strikes Again

Paul Hodgson is US Contributing Writer at Responsible Investor. This post is based on a publication which originally appeared in Responsible Investor.

When the SEC released its latest SLB in November last year, companies—well, Apple—pounced on the possibility of excluding shareholders proposals on the basis of, well, the board had a good think about it and decided that they were already doing it and/or that it was irrelevant.

Now, all sorts of companies are targeting lobbying spending disclosure proposals and others with other changes to shareholder proposal rules. This latest crop rely on a change to interpreting Rule 14a-8(i)(5), the one about whether a proposal “deals with a matter that is not significantly related to the issuer’s business” and “relates to operations that account for less than 5% of total assets, net earnings and gross sales”. The change to the interpretation says a proponent “can continue to raise social or ethical issues in its arguments” even though the proposal relates to less than 5% of assets, “but it would need to tie those to a significant effect on the company’s business”. Said Bruce Freed of the Center for Political Accountability: “It looks like now we have a Trump administration and a Trump SEC, companies are mounting a full-fledged assault on these lobbying resolutions. They see that there’s an opening. But it’s very shortsighted.”

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Cryptocurrency 2018

David E. Fialkow is a partner, and Jack S. Brodsky and Edward J. Mikolinski are associates at K&L Gates LLP. This post is based on a K&L Gates publication by Mr. Fialkow, Mr. Brodsky, and Mr. Mikolinski.

Blockchain technology and the virtual currency, or cryptocurrency, that uses this technology are revolutionizing the way businesses function and deliver goods and services. Even as cryptocurrency becomes a widely debated topic, gaining the critical attention of regulators and policymakers, individuals and businesses are investing billions of dollars in cryptocurrency annually.

To understand how blockchain and cryptocurrency may impact you, your business, and your industry, it is important to understand what cryptocurrency is and how the underlying blockchain works. This post provides a brief introduction to these concepts as well as a primer on cryptocurrency legal issues.

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Virtual Currencies

Jay Clayton is Chairman of the U.S. Securities and Exchange Commission. This post is based on Chairman Clayton’s recent testimony before the U.S. Senate Committee on Banking, Housing, and Urban Affairs. The views expressed in this post are those of Mr. Clayton and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

I am pleased that the Committee is holding this hearing to bring greater focus to the important issues that cryptocurrencies, initial coin offerings (ICOs) and related products and activities present for American investors and our markets.

I am also pleased to join my counterpart, Commodity Futures Trading Commission (CFTC) Chairman Christopher Giancarlo, for our second time testifying together before Congress. Since I joined the Commission in May, Chairman Giancarlo and I have built a strong relationship. Cryptocurrencies, ICOs and related subjects are the latest in a host of market issues on which we and our staffs have been closely collaborating to strengthen our capital markets for investors and market participants.

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Top Universities for Corporate Directors

Dan Marcec is Director of Content at Equilar, Inc. This post is based on an Equilar publication by Mr. Marcec which was originally published in the Equilar Knowledge Center.

With the college football season recently coming to a close, there’s no question who’s Number 1 on the field. When it comes to the top schools for turning out board members at public companies, there are also a couple of clear winners. A recent Equilar study using data from its BoardEdge platform uncovered the results.

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Institutional Investor Engagement: How to Create a “Stewardship Culture”

Mark Fenwick is Associate Professor at Kyushu University Faculty of Law; Erik P. M. Vermeulen is Professor of Business & Financial Law at Tilburg University. This post is based on their recent paperRelated research from the Program on Corporate Governance includes The Agency Problems of Institutional Investors by Lucian Bebchuk, Alma Cohen, and Scott Hirst.

Institutional investors matter.

The share of equity investments held by institutional investors, such as mutual funds, pension funds, insurance companies and hedge funds, has increased significantly in recent years, and many such assets are now managed by specialized asset managers. A broad consensus has now emerged that involving these professional institutional investors can be an effective mechanism to improve firm governance. Long-term institutional investor engagement is seen as a means to optimize firm performance and foster economic growth.

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HLS Forum Sets New Records in 2017

The operations of the Harvard Law School Forum on Corporate Governance during 2017 set several new records. These records include:

  • Having more than 100,000 unique viewers in a month:
  • Publishing over 800 posts during a year;
  • Having visitors from over 220 countries and territories during the year; and
  • More than 2 million page views.

Established in 2006 by Professor Lucian Bebchuk and the Harvard Law School Program on Corporate Governance, the Forum has become the leading online resource, and the central outlet for the exchange of ideas and debate, in the fields of corporate governance and financial regulation. The Forum’s posts are distributed daily not only through its website but also via Twitter (where the Forum has over 11,000 followers), LinkedIn, and Facebook. Over 5,000 readers also subscribe to the Forum’s daily email announcement of new posts (signup instructions available here).

To date, the Forum has published more than 6,000 posts by close to 5000 contributors, including prominent academics, public officials, executives, legal and financial advisors, institutional investors, and other market participants. While most posts are solicited by the editors, the Forum welcomes submissions of unsolicited posts for consideration by the editors.

With Forum posts having been cited in over 350 academic articles and regulatory documents, the Forum has established itself as the go-to outlet for readers interested in corporate governance and financial regulation. In a recent article about the Forum that appeared in the Fall 2016 issue of the Harvard Law Bulletin, Chief Justice Leo Strine observed that “[i]t is amazing to see the [Forum] become required reading among the intelligentsia … of corporate governance.”

The Forum’s current editors are Itai Fiegenbaum, Matt Filosa, Scott Hirst, and Kobi Kastiel. Former editors now working in academia or practice include SEC Commissioner Robert JacksonJames Naughton (Northwestern), Yaron Nili (Wisconsin), Noam Noked (Chinese University of Hong Kong), Greg Shill (Iowa), Holger Spamann (Harvard), and Andrew Tuch (Washington University).

The success of the Forum has been made possible by the contribution of numerous post authors, as well as by the engagement of the Forum’s ever-growing readership. As we celebrate a record-breaking year, we are deeply grateful for the support of our contributors and readers.

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