Monthly Archives: October 2018

Guiding Our Way to Quarterly Behavior? Promoting Long-Term Thinking and Greater Transparency

Sarah Williamson is the Chief Executive Officer of FCLTGlobal. This post is based on a FCLTGlobal memorandum by Ms. Williamson. Related research from the Program on Corporate Governance includes The Myth that Insulating Boards Serves Long-Term Value by Lucian Bebchuk (discussed on the Forum here),  Short-Termism and Capital Flows by Jesse Fried and Charles C. Y. Wang (discussed on the Forum here), and Can We Do Better by Ordinary Investors? A Pragmatic Reaction to the Dueling Ideological Mythologists of Corporate Law by Leo E. Strine (discussed on the Forum here).

By now, most business-watchers have seen the president’s tweet asking the Securities and Exchange Commission (SEC) to study the requirement that US public companies release earnings quarterly. With this message, President Trump has focused attention on the short-term mentality that too often characterizes American business.

The tweet, which followed his discussion with Pepsi CEO Indra Nooyi about how to better orient corporations towards a more long-term view, has provoked a flurry of discussion on how corporations can take a longer-term approach to business and investment decisions, and in doing so, fuel growth and innovation in their communities.

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Results of ISS Governance Principles Survey

Cydney S. Posner is special counsel at Cooley LLP. This post is based on a Cooley publication by Ms. Posner.

ISS has posted the results of its most recent Governance Principles Survey, which can sometimes guide future ISS policies. The key areas of focus were auditors and audit committees, director accountability and track records, board gender diversity and the principle of one-share one-vote.

The results reflect 669 responses from 638 different organizations, including 469 corporations and 109 individual investor representatives. (See also this post on thecorporatecounsel.net.)

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How to Fire an Accused CEO: Moonves Departs CBS

Julian Hamud is a Director and Maria Vu is a Senior Analyst at Glass, Lewis & Co. This post is based on their Glass Lewis memorandum.

In a climate where Weinstein clauses are shaping M&A and the latest Kevin Spacey feature nets less than $1,000 on opening weekend, many shareholders and activists were puzzled by the persistence of Leslie Moonves. CBS’s former president, CEO and chairman held onto his position for over six weeks despite a New Yorker article outlining accusations of sexual misconduct from half a dozen women.

The accusations stacked on to the pressures of CBS’s roiling, board-driven litigation with its controlling shareholders, the Redstone family and their holding company National Amusements. Rumors of negotiations and a potential exit trickled out as the public became further incensed at reports that Moonves could be paid hundreds of millions for leaving despite the salacious circumstances surrounding his impending ouster. Monday brought a tipping point for both conflicts. Just as six additional women stepped forward to round out a dozen allegations of misconduct, CBS announced that Mr. Moonves had finally stepped down and $20 million would be paid to #metoo related organization; and, the battle between CBS and the Redstones came to a settlement.

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The Board’s Role in Confronting Crisis

Steve W. Klemash is Americas Leader, Jamie Smith is Associate Director, and Jennifer Lee is Senior Manager at the EY Center for Board Matters. This post is based on their EY publication.

A corporate crisis in today’s world accelerates more quickly with a larger impact than ever before. The 24-hour news cycle and prevalence of social media contribute to the risk of destabilization.

A crisis can be the result of a number of different types of incidents and developments and take on many forms. For example:

  • Reports or even hints of executive misconduct or a toxic
    work culture can ignite a media firestorm.
  • Negative, and misleading, videos and comments can go viral and damage reputations.
  • The polarization of people, governmental policies and politicians can catch companies unaware and put them in highly public debates.
  • Executing business-model initiatives and certain compensation incentive strategies can result in unintended consequences and enterprise-wide risk.
  • Natural and man-made disasters throw tightly linked supply chains into imbalance, amplifying how a regional event can have significantly greater and more far-reaching impacts.
  • A single cyber breach can have devastating consequences.

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The Effects of Internal Board Networks: Evidence from Closed-End Funds

Matthew E. Souther is Assistant Professor at the Robert J. Trulaske, Sr. College of Business at the University of Missouri. The following post is based on a recent article by Professor Souther, forthcoming in the Journal of Accounting & Economics.

Several recent studies document the importance of social networks in corporate governance. Most of this research focuses on networks between board members and the CEO, or between directors and outside parties. My study, The Effects of Internal Board Networks: Evidence from Closed-End Funds, recently published in the Journal of Accounting and Economics, is the first to examine a different aspect of social networks: internal connections between members of an individual firm’s board of directors. These internal networks might affect governance in two ways. On one hand, we might argue that shared backgrounds can improve communication and facilitate decision making, therefore improving firm value and monitoring quality. On the other hand, the shared backgrounds of directors may reduce the likelihood of dissent as a result of fewer opposing viewpoints. This argument follows the theoretical model of board communication presented by Malenko (2014), which highlights the improved quality of governance associated with having diverse preferences on the board and with incentivizing directors to openly communicate opposing viewpoints. In this model, diverse interests strengthen the director’s incentives to incur the costs of dissent.

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The Financial Crisis 10 Years Later: Lessons Learned

Brad S. Karp is partner and chairman at Paul, Weiss, Rifkind, Wharton & Garrison LLP. This post is based on a Paul, Weiss publication by Mr. Karp, Mark BergmanSusanna BuergelRoberto GonzalezJane O’Brien, and Elizabeth Sacksteder.

Introduction

The financial crisis was ignited exactly ten years ago: on September 15, 2008, Lehman Brothers filed for bankruptcy. That same day, Bank of America announced its acquisition of Merrill Lynch. On September 16, the Federal Reserve bailed out AIG. On September 17, the markets were in free-fall. On September 18, Secretary Paulson and Chairman Bernanke briefed Congressional leaders on the contours of a massive bailout plan. And on September 19, the Treasury Department took the unprecedented step of guaranteeing U.S. money market funds.

The financial crisis ravaged the U.S. and world economies and required extraordinary government interventions to prevent a major worldwide depression. It spurred a host of legislative, regulatory, enforcement, litigation, and political responses, many of which are still unfolding. It destroyed venerable businesses and commercial activities and spawned others. And it reshaped market dynamics across the global economy, including in such diverse sectors as private funds, derivatives, securitization, M&A, bankruptcy, and real estate.

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Weekly Roundup: September 28–October 4, 2018


More from:

This roundup contains a collection of the posts published on the Forum during the week of September 28–October 4, 2018.

How Blockchain will Disrupt Corporate Organizations






Cyber Lessons from the SEC?


Public Short Selling by Activist Hedge Funds


Statement Regarding Agreed Settlements with Elon Musk and Tesla


A Tale of Two Earnouts



Private Equity Buyer/Public Target M&A Deal Study: 2015-17 Review






Micro(structure) before Macro?



No Long-Term Value From Activist Attacks

No Long-Term Value From Activist Attacks

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 authored by Mr. Lipton. 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).

An important new study by Ed deHaan, David Larcker and Charles McClure, Long-Term Economic Consequences of Hedge Fund Activist Interventions, has found that on a value weighted basis, long-term returns are “insignificantly different from zero.” And, nearly all of the positive long-term returns are concentrated in companies that are acquired in the two-year period following the activist attack. Also, the authors found that there is no evidence that activist attacks result in long-term improvements in accounting performance measures including, return on equity, return on net operating assets, profit margin, asset turnover, and spread over borrowing costs. They concluded, “In sum, across a large battery of appropriately-matched tests, we fail to find consistent evidence that activists drive changes in accounting-based operating performance.”

The following are the overall conclusions of the study:

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2018 Relative TSR Prevalence and Design of S&P 500 Companies

Ben Burney is a Senior Advisor at Exequity, LLP. This post is based on an Exequity memorandum by Mr. Burney. Related research from the Program on Corporate Governance includes Paying for Long-Term Performance by Lucian Bebchuk and Jesse Fried (discussed on the Forum here).

Over the last several years as compensation committees and executives strive to align pay with shareholder returns, they have increasingly turned to market-based performance measures such as relative total shareholder return (RTSR) [1]. Traditionally, RTSR was used primarily by Energy and Utilities companies, largely because these companies’ stock prices tend to be closely correlated, so TSR differences can more confidently be attributed to the success of management’s stewardship. Adoption of new RTSR plans has slowed in recent years, leveling off at 55% for 2018—the same prevalence we reported in 2017. TSR remains a popular metric for compensation committees striving to maintain defensible compensation programs that also comport with shareholder (and proxy advisor) expectations.

This is the fourth year Exequity has reported on RTSR usage and the sixth year we have tracked prevalence across S&P 500 companies. As in prior years, we analyzed the key design elements of RTSR programs in an effort to discern how RTSR is being implemented across S&P 500 companies and whether the new entrants to the RTSR fold have designed their plans similarly to the plans traditionally used by Energy or Utilities companies.

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Micro(structure) before Macro?

Yong Chen is Associate Professor of Finance at Mays Business School of Texas A&M University, Gregory W. Eaton is Assistant Professor of Finance at Spears School of Business of Oklahoma State University, and Bradley S. Paye is Assistant Professor of Finance at Pamplin College of Business of Virginia Tech. This post is based on a their recent article, forthcoming in the Journal of Financial Economics.

In our article, Micro(structure) before Macro? The Predictive Power of Aggregate Illiquidity for Stock Returns and Economic Activity (Journal of Financial Economics, 2018, 130 (1), pp. 48-73), we provide new, relatively comprehensive empirical evidence concerning the predictive content of aggregate illiquidity for stock returns and macroeconomic activity. Liquidity conditions in securities markets fluctuate over time, which has important implications for equity markets and the broader economy. Theoretical models link aggregate (or market-wide) liquidity with time-variation in the equity premium. In the model of Acharya and Pedersen (2005), for example, persistent variation in trading costs implies that liquidity forecasts future stock returns. A related theoretical literature emphasizes connections between financial frictions and macroeconomic activity. Illiquidity, coupled with other financial frictions, can generate nonlinear amplification effects and exacerbate economic downturns (Brunnermeier and Pedersen, 2009). This theoretical literature suggests that empirical measures of aggregate illiquidity should contain predictive signals for future stock returns and economic activity.

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