Monthly Archives: August 2018

Does Transparency Increase Takeover Vulnerability?

Lifeng Gu is Assistant Professor in Finance at The University of Hong Kong and Dirk Hackbarth is Professor of Finance at Boston University Questrom School of Business. This post is based on a recent paper by Professor Gu and Professor Hackbarth.

Takeovers and especially models predicting takeovers have been of interest to academics and practitioners. Our paper titled Does Transparency Increase Takeover Vulnerability? studies how transparency affects takeover probability and stock returns over 25 years of takeover data.

Economic intuition suggests that if higher firm-level transparency lowers uncertainty with respect to synergies and valuations of potential target firms, then it should facilitate takeovers. We argue therefore that a better information environment increases takeover vulnerability, such that it has an incrementally important impact on estimates of takeover likelihood, which is consistent with recent research. To the best of our knowledge, however, this is the first paper to examine empirically whether transparency affects takeover vulnerability and potentially stock returns too.

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The CFIUS Reform Bill

Michael Gershberg is a Partner and Justin Schenck is an associate at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Mr. Gershberg and Mr. Schenck.

On August 1, 2018, the Senate passed the Foreign Investment Risk Review Modernization Act (FIRRMA) as part of the 2019 defense authorization bill. FIRRMA represents the most sweeping changes to the law governing the Committee on Foreign Investment in the United States (CFIUS) since the passage of the Foreign Investment and National Security Act of 2007 (FINSA). While some provisions will take effect immediately upon enactment, many important details will be finalized only through the CFIUS rule making process or will be developed over time pursuant to CFIUS practice. The bill had already been passed by the House of Representatives and now awaits President Trump’s signature; he is expected to sign the bill into law by mid-August.

FIRRMA contains several changes that will affect how parties approach foreign investment transactions and navigate the CFIUS process. Namely, FIRRMA makes the following alterations to the CFIUS landscape, which we discuss in more detail below:

  • Expansion of CFIUS jurisdiction, including non-controlling investments and real estate;
  • Specific carve-out for private equity funds with foreign investors;
  • Introduction of declarations—abbreviated, 5-page filings;
  • Mandatory declarations for certain foreign government-controlled transactions;
  • Extension of the CFIUS timeline;
  • Imposition of a filing fee;
  • Grant of authority for CFIUS to suspend transactions; and
  • Implementation of a new export control regime to address emerging technology.

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Awakening Governance: ACGA China Corporate Governance Report 2018

Jamie Allen is Secretary General and Li Rui (Nana Li) is Senior Research Analyst at the Asian Corporate Governance Association (ACGA). This post is based on the introduction to their ACGA report.

With its securities market continuing to internationalise and grow in complexity, China appears at a turning point in its application of CG and ESG principles. The time is right to strengthen communication and understanding between domestic and foreign market participants.

Introduction: Bridging the gap

The story of modern corporate governance in China is closely connected to the rapid evolution of its capital markets following the opening to the outside world in 1978. The 1980s brought the first issuance of shares by state-owned enterprises (SOEs) and a lively over-the-counter market. National stock markets were relaunched in Shanghai and Shenzhen in 1990 to 1991, while new guidance on the corporatisation and listing of SOEs was issued in 1992. The first overseas listing of a state enterprise came in October 1992 in New York, followed by the first SOE listing in Hong Kong in 1993. Corporate governance reform gained momentum in the late 1990s, but it was less a byproduct of the Asian Financial Crisis than a need to strengthen the governance of SOEs listing abroad. The early 2000s then brought a series of major reforms on independent directors, quarterly reporting and board governance aimed squarely at domestically listed firms.

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High-Quality Sales Processes and Appraisal Proceedings

Jason M. Halper, Ellen Holloman, and Joshua Apfelroth are partners at Cadwalader, Wickersham & Taft LLP. This post is based on a Cadwalader memorandum by Mr. Halper, Ms. Holloman, Mr. Apfelroth, William Mills, James Fee, and William Simpson, and is part of the Delaware law series; links to other posts in the series are available hereRelated research from the Program on Corporate Governance includes Using the Deal Price for Determining “Fair Value” in Appraisal Proceedings by Guhan Subramanian (discussed on the Forum here).

Two recent decisions by the Delaware Court of Chancery underscore that the outcome of an appraisal proceeding often will turn on the quality of a company’s sale process. While recent Delaware Supreme Court appraisal jurisprudence supports relying on the negotiated merger transaction price as the most reliable evidence of a seller’s fair value, flaws in the sales process, even if not rising to the level of a breach of fiduciary duty by the seller’s board, can lead the court to reject reliance on merger consideration. As a result, appraisal decisions likely will continue to focus on many of the same issues that courts examine when considering breach of fiduciary duty claims in the merger context as well as assessing whether the seller’s stock trades in an efficient market.

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Weekly Roundup: August 17-23, 2018


More from:

This roundup contains a collection of the posts published on the Forum during the week of August 17-23, 2018.


Microcap Board Governance



Shareholder Vote on Golden Parachutes: Determinants and Consequences


Federal FinTech Bank Charters



Board Diversity Developments


Corporate Governance in Emerging Markets


Dual-Class Index Exclusion


National Bank Charters for Fintech Firms



Board Diversity, Firm Risk, and Corporate Policies


Shareholder Activism: Evolving Tactics

Further to the Warren Bill, The New Paradigm and a Better Way

Martin Lipton is a founding partner of Wachtell, Lipton, Rosen & Katz, specializing in mergers and acquisitions and matters affecting corporate policy and strategy. This post is based on a Wachtell Lipton memorandum by Mr. Lipton.

I’ve received a number of comments essentially raising the question, “If you are such a strong supporter of stakeholder corporate governance, how can you not favor Senator Warren’s Bill?” As I said in both of my previous memos, Corporate Governance; Stakeholder Primacy; Federal Incorporation, August 15, 2018 (discussed on the Forum here), and Corporate Governance—The New Paradigm—A Better Way Than Federalization, August 17, 2018 (discussed on the Forum here), I reject federalization of all large corporations as too high a price to pay for stakeholder governance—particularly when it would do little to deter attacks by activist hedge funds. There are innumerable advantages to continued state incorporation and state corporate law that should not be sacrificed. My solution is the private sector solution advocated by the World Economic Forum, The New Paradigm: A Roadmap for an Implicit Corporate Governance Partnership Between Corporations and Investors to Achieve Sustainable Long-Term Investment and Growth. Growing support for The New Paradigm, as noted in my August 17 memo, would lead to it being the solution.

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Shareholder Activism: Evolving Tactics

Shaun J. Mathew and Daniel E. Wolf are partners at Kirkland & Ellis LLP. This post is based on a Kirkland & Ellis memorandum by Mr. Mathew and Mr. Wolf. Related research from the Program on Corporate Governance includes The Long-Term Effects of Hedge Fund Activism by Lucian Bebchuk, Alon Brav, and Wei Jiang (discussed on the Forum here); Dancing with Activists by Lucian Bebchuk, Alon Brav, Wei Jiang, and Thomas Keusch (discussed on the Forum here); and Who Bleeds When the Wolves Bite? A Flesh-and-Blood Perspective on Hedge Fund Activism and Our Strange Corporate Governance System by Leo E. Strine, Jr. (discussed on the Forum here).

Shareholder activist tactics are evolving as hedge funds deploy capital in a market where much of the low-hanging fruit has been plucked and target companies are more aware and better defended against traditional strategies. New approaches are also being deployed by first-time and infrequent activists who don’t always operate from the typical activist playbook. Companies should be aware of these strategy shifts and be prepared to be flexible in defending against new and novel approaches:

More demands for board control. Not satisfied with a “short slate” of one or two board seats, more activists are demanding board control, including by nominating a full slate of replacement directors. Control contests are harder for activists to win, but success also comes with a higher payoff: rather than just being a voice in the boardroom, control gives the activist the ability to more rapidly implement an agenda (e.g., Xerox terminated its deal with Fuji as part of its settlement giving control to Icahn and Deason). Activists are also using the threat of a contest for board control as a bargaining chip to extract better “short slate” settlement terms, safe in the knowledge that the activist retains the option to cut back its nominations to a minority slate during the course of the proxy contest. While this gambit risks undermining an activist’s credibility with shareholders and proxy advisory firms, we expect to see it used more, particularly by less experienced funds.

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Board Diversity, Firm Risk, and Corporate Policies

Gennaro Bernile is Associate Professor of Finance at the University of Miami; Vineet Bhagwat is Assistant Professor at George Washington University; and Scott Yonker is Associate Professor & Lynn Calpeter Faculty Fellow in Finance at Cornell University Dyson School of Applied Economics and Management. This post is based on their article, recently published in the Journal of Financial Economics.

In the last decade, at least six countries have mandated gender diversity on corporate boards and several other are considering legislation. As a result, there are many studies that investigate the impact of gender diversity of the board of directors on corporate performance. While gender diversity is important from a social equity perspective, is it the most important aspect of diversity when it comes group outcomes? Recently, Harvard University defended its admissions process against allegations of racial discrimination based, in part, on the idea that diverse student bodies produce better educational outcomes. Rakesh Khurana, the dean of Harvard College, stated, “That when we talk about diversity of backgrounds and experiences, it includes different academic interests. It includes different occupations of parents. It includes socioeconomic differences. It includes different viewpoints on issues.” Khurana, an economist by training, understands that while diversity in gender and race may be important from a social equality perspective, it is diversity in ideas, beliefs, and expertise that should also be important for group outcomes and performance. In our recent article, Board Diversity, Firm Risk, and Corporate Policies, published in the Journal of Financial Economics, we ask whether diversity in the board of directors affects corporate risk-taking, performance, and other policies, but we take a much broader approach than previous researchers, defining diversity along numerous demographic and cognitive dimensions.

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Statement on Investor Roundtables Regarding Standards of Conduct for Investment Professionals Rulemaking

Jay Clayton is Chairman of the U.S. Securities and Exchange Commission. This post is based on Chairman Clayton’s recent public statement, available here. 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.

In April 2018, the Commission proposed for public comment a significant rulemaking package designed to serve our Main Street investors that would (1) require broker-dealers to act in the best interest of their retail customers, (2) reaffirm and in some cases clarify the fiduciary duty owed by investment advisers to their clients and (3) require both broker-dealers and investment advisers to clarify for all retail investors the type of investment professional they are, and disclose key facts about their relationship.

Shortly after we issued our proposal, we organized a series of roundtables to provide Main Street investors from around the country the opportunity to “Tell Us” about their experiences and their views of what they expect from their investment professionals.

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National Bank Charters for Fintech Firms

Arthur S. Long is a partner, Jeffrey L. Steiner is counsel, and James O. Springer is an associate at Gibson, Dunn & Crutcher LLP. This post is based on their Gibson Dunn memorandum.

Last week, the Office of the Comptroller of the Currency (OCC) announced that it would begin accepting proposals from Fintech firms to charter special purpose national banks (SPNBs). This decision comes over 18 months after the White Paper proposing such charters was issued under President Obama’s Comptroller, Thomas Curry, in his last month in that position. The OCC accompanied this announcement with a policy statement (Policy Statement) and a supplement to its licensing manual for national banks (Licensing Manual Supplement).

This announcement, while expected, is an extremely significant development in federal banking law, and one almost assuredly to be legally challenged, at a time when the Chevron doctrine of administrative agency deference is receiving a fresh look.

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