Weekly Roundup: December 14

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

Common Ownership: The Investor Protection Challenge of the 21st Century

Posted by Robert J. Jackson, Jr., U.S. Securities and Exchange Commission, on Friday, December 14, 2018

Tags: Agency costs, Antitrust, Boards of Directors, Common ownership, Index funds, Institutional Investors, Institutional voting, Investor protection, Market efficiency, Ownership, SEC, Securities regulation, Shareholder voting

Remarks to the SEC Investor Advisory Committee

Posted by Jay Clayton, U.S. Securities and Exchange Commission, on Friday, December 14, 2018

Tags: Arbitration, Asset management, Disclosure, Environmental disclosure, ESG, Investor protection, Reporting regulation, Securities regulation, Sustainability

Some Thoughts for Boards of Directors in 2019

Posted by Martin Lipton, Wachtell, Lipton, Rosen & Katz, on Friday, December 14, 2018

Tags: Asset management, Board communication, Board composition, Board leadership, Board oversight, Boards of Directors, Engagement, Management, New Paradigm, Risk management, Shareholder activism, Shareholder voting, Stakeholders, Stewardship

Material Adverse Effect Clauses and the Delaware Supreme Court

Posted by Richard Slack and Joshua Glasser, Weil, Gotshal & Manges LLP, on Sunday, December 16, 2018

Tags: Acquisition agreements, Delaware cases, Delaware law, Materiality, Merger litigation, Mergers & acquisitions, Securities regulation, Shareholder suits

Second Corwin Denial Due to Restatement Process

Posted by Meredith E. Kotler, Roger A. Cooper, and Mark E. McDonald, Cleary Gottlieb Steen & Hamilton LLP, on Sunday, December 16, 2018

Tags: Boards of Directors, Business judgment rule, Corwin, Delaware cases, Delaware law, Financial reporting, Merger litigation, Mergers & acquisitions, Restatements, Schedule 14D

The Prescience of 5% of Investors: A Monsanto Case Study

Posted by Sanford Lewis, Shareholder Rights Group, on Monday, December 17, 2018

Tags: Corporate liability, Disclosure, Reputation, Risk management, Securities litigation, Shareholder proposals, Shareholder rights, Shareholder suits, Shareholder voting

Investment Returns and Distribution Policies of Non-Profit Endowment Funds

Posted by Sandeep Dahiya (Georgetown University) and David Yermack (NYU), on Monday, December 17, 2018

Tags: Distributions, Dividends, Endowments, Hedge funds, Institutional Investors, Nonprofits

The Lifecycle Theory of Dual-Class Structures

Posted by Lucian A. Bebchuk (Harvard Law School) and Kobi Kastiel (Tel Aviv University), on Monday, December 17, 2018

Tags: Agency costs, Capital structure, Controlling shareholders, Dual-class stock, Entrenchment, Incentives, IPOs, Ownership structure, Securities regulation, Shareholder voting, Tech companies

ISS and Glass Lewis Policy Updates for the 2019 Proxy Season

Posted by Holly J. Gregory, John P. Kelsh and Rebecca Grapsas, Sidley Austin LLP, on Tuesday, December 18, 2018

Tags: Board composition, Boards of Directors, Director compensation, Diversity, Glass Lewis, Institutional Investors, ISS, Proxy advisors, Shareholder voting

Mutual Fund Board Connections and Proxy Voting

Posted by Paul Calluzzo (Queen’s University) and Simi Kedia (Rutgers Business School), on Tuesday, December 18, 2018

Tags: Boards of Directors, Conflicts of interest, Information asymmetries, Information environment, Institutional Investors, Management, Mutual funds, Proxy advisors, Proxy voting, Shareholder voting, Social networks

Audit: Radical Change on the Horizon?

Posted by Stephen Davis (Harvard Law School), on Tuesday, December 18, 2018

Tags: Accounting, Accounting standards, Audit committee, Audits, Boards of Directors, Compliance and disclosure interpretation, Environmental disclosure, ESG, Financial reporting, International governance, Oversight, PCAOB, SOX, Transparency

Roundup of Key Federal Securities Litigation Developments

Posted by Samuel P. Groner, Israel David, and Peter L. Simmons, Fried, Frank, Harris, Shriver & Jacobson LLP, on Wednesday, December 19, 2018

Tags: Regulation S-K, Rule 10b-5, SEC, SEC enforcement, Securities enforcement, Securities fraud, U.S. federal courts

Soft Shareholder Activism

Posted by Doron Levit (University of Pennsylvania), on Wednesday, December 19, 2018

Tags: Board communication, Boards of Directors, Engagement, Exit, Information environment, Shareholder activism, Shareholder communications

SEC Enforcement Activity: Public Companies and Subsidiaries—Fiscal Year 2018 Update

Posted by Stephen Choi (NYU), Sara E. Gilley and David F. Marcus (Cornerstone Research), on Wednesday, December 19, 2018

Tags: Disclosure, FCPA, Financial reporting, SEC, SEC enforcement, Securities enforcement, Securities regulation, Settlements

SEC Request for Comments on Quarterly Reporting and Earning Releases

Posted by Itai Fiegenbaum, Harvard Law School, on Wednesday, December 19, 2018

Tags: Accounting, Disclosure, Financial reporting, Long-Term value, Reporting regulation, SEC, Securities regulation, Shareholder value, Short-termism

Clayton Q&A and ESG at the SEC’s Investor Advisory Committee Meeting

Posted by Cydney Posner, Cooley LLP, on Thursday, December 20, 2018

Tags: Disclosure, Environmental disclosure, ESG, Institutional Investors, Institutional voting, Materiality, Reporting regulation, SASB, SEC, Securities regulation, Shareholder proposals, Shareholder value, Sustainability, Voluntary Disclosure

When Are Tokens Securities? Some Questions from the Perplexed

Posted by James J. Park (UCLA), on Thursday, December 20, 2018

Tags: Blockchain, Capital formation, Cryptocurrency, Howey test, ICOs, SEC, SEC enforcement, Securities enforcement, Securities regulation, Tech companies

Weekly Roundup: December 14–20, 2018