Monthly Archives: March 2019

Technology and the Boardroom: A CIO’s Guide to Engaging the Board

Khalid Kark is a director, Tonie Leatherberry is a principal, and Debbie McCormack is a managing director at the Center for Board Effectiveness, all at Deloitte LLP. This post is based on a Deloitte memorandum by Mr. Kark, Ms. Leatherberry, Ms. McCormack, and Minu Puranik.

Because technology is a crucial part of business strategy, boards and CIOs may need to elevate their engagement and collaboration with each other. How can CIOs lead and guide the conversation about technology’s impact on business trajectory?

Technology is a strategic imperative in nearly every organization, regardless of industry, sector, or geography. Few companies are immune to the influence of technology-driven disruption, innovation, or value creation. Business strategy is now largely technology strategy, and high-performing CIOs are both leading technology deployments and helping the business develop and implement technology-enabled business strategies. “There isn’t a single strategy in any business that isn’t enabled by technology,” affirms Sheila Jordan, SVP and CIO of Symantec. “Technology is the common denominator in every single key strategic imperative in every company.

Many board members agree. “As the pace of change quickens, technology now leads and influences business strategy in almost all companies and industries,” says Scott Bonham, board director at Magna, Scotiabank, and Loblaw Companies Limited. “It is imperative for board members to understand these disruptive changes as they relate to technology, guide the organization to go beyond traditional IT conversations, and leverage technology to grow the business.

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The Strategies of Anticompetitive Common Ownership

Scott Hemphill is Professor of Law and Marcel Kahan is George T. Lowy Professor of Law at New York University School of Law. This post is based on their recent paper. Related research from the Program on Corporate Governance includes Horizontal Shareholding (discussed on the Forum here); and New Evidence, Proofs, and Legal Theories on Horizontal Shareholding (discussed on the Forum here), both by Einer Elhauge; and Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy by Lucian Bebchuk and Scott Hirst (discussed on the forum here).

Institutional investors, such as large mutual funds, often own significant stakes in competing firms. Antitrust theorists have long suggested that common concentrated owners (“CCOs”) have interests that differ from those of owners of a single competing firm and might be able to induce firms in which they hold a stake to further these interests. Recently, empirical evidence indicates that CCOs are associated with various anticompetitive effects. The most important article in this literature is an empirical study of the airline industry that concludes that common ownership of competing airlines, evaluated at the route level, is associated with higher prices on that route.

This new evidence, and the dramatic growth in institutional investors over the last several decades, have stimulated a major rethinking of antitrust enforcement. The Department of Justice, the Federal Trade Commission, and the European Commission have each, to varying degrees, conducted hearings and investigations or expressed concerns about common ownership. Academic commentators have advocated measures that go much further. They urge that funds must cease their ownership of competing firms, shrink to a fraction of their current size, or lose the right to vote their shares in their portfolio companies. These proposals, if adopted, would transform the landscape of institutional investing.

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Corporate Opportunity Waivers in Private Equity and Venture Capital Investments

Matthew M. Greenberg is partner and Christopher B. Chuff and Taylor B. Bartholomew are associates at Pepper Hamilton LLP. This post is based on their Pepper memorandum. This post is part of the Delaware law series; links to other posts in the series are available here.

A recent Delaware Supreme Court order affirming the Court of Chancery’s ruling in Alarm.com Holdings, Inc. v. ABS Capital Partners, Inc. provides important guidance for private equity and venture capital firms that seek to invest in competing businesses. Among other things, the decision stresses the importance of adopting provisions in governing investment documents, including the target’s certificate of incorporation, that permit the PE or VC firms to invest in competing businesses. The decision also cautions that broad corporate opportunity waivers may not be enforceable and that these waivers should be carefully drafted to avoid being declared invalid. Other notable takeaways from the decision are discussed below.

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Equity Market Structure 2019: Looking Back & Moving Forward

Jay Clayton is Chairman and Brett Redfearn is Director of the Division of Trading and Markets at the U.S. Securities and Exchange Commission. This post is based on their recent remarks at Gabelli School of Business, Fordham University, available hereThe views expressed in this post are those of Mr. Clayton and Mr. Redfearn and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Chairman Clayton: Thank you, Dean Rapaccioli, for your kind introduction and for the invitation to Director Redfearn and me to speak about equity market structure. [1]

I’m delighted that my good friend Craig Phillips was able to take time to be here and lay the groundwork for our speech. Groundwork is the right word; and it extends well beyond today. Secretary Mnuchin, Craig and Craig’s team, with their four “core principles” reports on the state of our financial markets and suggested reforms, [2] produced the most thoughtful, citizen-focused pieces of work I’ve seen in the financial sector. The reports thoroughly frame the issues, narrow the debate and provide a pathway forward. Craig, I cannot thank you enough for your work on behalf of our Main Street investors.

Today, Brett and I are not going to speak in sequence. We’re going to do what we do within the walls of the Commission—we’re going to have a dialogue. I’ll introduce the topics and issues—there are four: (1) a bit of history, including the equity market structure initiatives the Commission completed last year, and then the subjects of the staff’s recent roundtables, [3] (2) thinly-traded securities, (3) combating retail fraud, and (4) market access and market data—and then Brett, with an interruption or two from me, will provide the details.

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The Labor Market for Directors and Externalities in Corporate Governance: Evidence from the International Labor Market

Ugur Lel is Associate Professor and Nalley Distinguished Chair in Finance at Darius Miller is Caruth Chair of Financial Management at the Southern Methodist University Cox School of Business. This post is based on their recent article, forthcoming in the Journal of Accounting and Economics.

In our recent article titled The Labor Market for Directors and Externalities in Corporate Governance: Evidence from the International Labor Market, forthcoming in the Journal of Accounting and Economics, we examine how the potentially opposing forces created by country level aggregate governance impacts the ability of the labor market for outside directors to align the interest of managers and shareholders.

The board of directors is one of the pillars of modern corporations. Corporate boards are delegated by shareholders to protect their interests worldwide by monitoring and advising managers. While theory recognizes that the incentives and ability of directors to safeguard shareholders’ interests can vary significantly across countries (see Levit and Malenko (2016)), there is no cross-country evidence on the directorial labor market’s ability to align the interests of shareholders and managers.

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Letter on Stock Buybacks and Insiders’ Cashouts

Robert J. Jackson, Jr. is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on a letter by Commissioner Jackson to Senator Chris Van Hollen. The views expressed in the post are those of Commissioner Jackson and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

Thank you for your December 18, 2018 letter regarding my research on the relationship between stock buybacks and corporate insiders’ stock cashouts—and for your leadership in urging the SEC to ensure that our rules protect investors when public companies buy back stock. I very much appreciate the opportunity to share further details on this work.

I first raised these concerns in a speech last June, when my Office released original research showing that corporate insiders cash out much more of their personal stock immediately after announcing a buyback than on an ordinary day. [1] If executives believe a buyback is the right thing to do, they should hold their stock over the long term. Instead, we found that many executives use buybacks to cash out. That creates the risk that insiders’ own interests-rather than the long-term needs of investors, employees, and communities-are driving buybacks.

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As California Goes, So Goes the Nation? The Impact of Board Gender Quotas on Firm Performance and the Director Labor Market

Steven Davidoff Solomon is Professor of Law at UC Berkeley School of Law. This post is based on a recent paper authored by Professor Davidoff Solomon; Felix von Meyerinck, Assistant Professor at the University of St. Gallen; Alexandra Niessen-Ruenzi, Chair of Corporate Governance at the University of Mannheim; and Markus M. Schmid, Professor of Corporate Finance at the University of St. Gallen.

Women are still heavily underrepresented in leadership positions in the U.S. corporate sector. According to the Corporate Women Directors International 2018 report, women hold 21.4% of director positions on the boards of the Fortune Global 200 companies. In As California Goes, So Goes the Nation? The Impact of Board Gender Quotas on Firm Performance and the Director Labor Market we examine the consequences of California’s adoption of SB 826, a law attempting to cure this disparity. SB 826 mandates that a minimum number of female directors serve on public companies headquartered in California.

The first question we explore is how the introduction of a mandatory gender quota affects Californian firms’ valuations. We compute abnormal stock returns for firms headquartered in California and a matched group of control firms for different event windows surrounding the days of the gender quota’s adoption and announcement in California. We observe a robust and significantly negative valuation effect of firms affected by the quota. Specifically, firms headquartered in California have a 0.45% lower announcement return on the first day after the quota announcement than a group of control firms headquartered in other U.S. states or the D.C. matched on size and industry. These results translate into a value loss of around 57.2 million USD on average (median: 3.7 million USD) per California-headquartered firm relative to non-California-headquartered firms. The large gap between the mean and median wealth effects is indicative of a skewed distribution, with some firms showing very large effects.

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Weekly Roundup: March 1-7, 2019


More from:

This roundup contains a collection of the posts published on the Forum during the week of March 1-7, 2019.



Rise of the Shadow ESG Regulators


The Director-Shareholder Engagement Guidebook


Commodity Exchange Act Liability for Smart Contract Coders


Oral History Documentary Videos on Landmark Developments in Delaware Corporate Law





Peer Group Choice and Chief Executive Officer Compensation




The End of “Corporate” Governance: Hello “Platform” Governance



SEC Enforcement for Internal Control Failures


Long-Term Bias


Top 10 Sustainability Developments in 2018

Top 10 Sustainability Developments in 2018

Thomas Riesenberg is the Director of Legal Policy and Outreach at the Sustainability Accounting Standards Board. This post is based on his SASB memorandum. Related research from the Program on Corporate Governance includes Socially Responsible Firms by Alan Ferrell, Hao Liang, and Luc Renneboog (discussed on the Forum here).

Investor, regulatory, and corporate interest in environmental, social and governance (ESG) issues seems to be growing by leaps and bounds. If securities lawyers haven’t been springing to attention already, then the arrival of a New Year, and a new proxy season, is a good time to start.

Here is a list of the top ten developments of 2018 that securities (and other) lawyers should find of interest.

1. Institutional investors are insisting on better sustainability

Large institutional investors are now firmly in the environmental, social and governance (or ESG) camp. Increasingly, ESG is viewed as an important risk factor for all investors in all types of companies and, accordingly, companies need to make better disclosures.

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Long-Term Bias

Michal Barzuza is Nicholas E. Chimicles Research Professor of Business Law and Regulation at the University of Virginia School of Law and Eric Talley is Isidor and Seville Sulzbacher Professor of Law at Columbia Law School. This post is based on their recent paper. 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); The Uneasy Case for Favoring Long-Term Shareholders by Jesse Fried (discussed on the Forum here); and The Long-Term Effects of Hedge Fund Activism by Lucian Bebchuk, Alon Brav, and Wei Jiang (discussed on the Forum here).

The perceived dangers of “short-termism” in public capital markets have come to occupy center stage as a chief concern for corporate America. During the last decade, an emerging conventional wisdom has taken root among lawyers, business commentators, judges, policymakers and (at least some) investors, asserting that managers of public companies are too often pressured to pursue short-term gains at the expense of managing for long-term value. Although concerns about short-termism are hardly new (recurring for over a quarter century), the recent rise of hedge fund activism and corporate governance intermediation has added a sense of urgency—if not emergency—to the critical chorus warning of the perils of myopia.

Much of the ensuing debate about short-termism has tended to revolve around competing claims concerning the phenomenon in isolation. Many skeptics, for example, have rejoined that arbitrage activity in efficient capital markets should create a natural corrective mechanism that eviscerates (or substantially dampens) most short-term biases. Others have questioned the magnitude of the phenomenon, or argued that claims about short-termism are little more than disingenuous apologies for managerial agency costs and empire building. Nevertheless, manifest concerns about the perils of short-termism—and the existential threat it poses for long-term value creation—persist in both public discourse and some influential corners of academic research. The kerfuffle over short-termism has attracted passionate adherents on both sides, with the resulting battlefield resembling something close to a standoff.

In a recent working paper, we argue that the stalemate over short-termism might be due (at least in part) to the failure of advocates from both sides to confront seriously two curious paradoxes about their own debate. First, even if episodic short-term bias might conceivably emerge in appropriate capital market settings, its persistence over time is difficult to explain. Why would sophisticated market participants, for example, deliberately and repeatedly leave money on the table during both economic upturns and downturns, eschewing superior long-term investments in order to extract a quick payout? The conventional response that hedge fund managers are compensated to think in like short-termists rings particularly hollow: nothing requires the persistence of standard “two and twenty” compensation packages; and yet, hedge funds have generally not backed away from it (doing the opposite if anything). The second puzzling aspect of the current debate concerns the concept of long-term value creation itself, and its seemingly “deified” status as the consensus gold standard for corporate governance. In other words, while the clash over the existence and/or magnitude of short-term bias has raged on, most seem willing to stipulate that long-term value maximization remains a paragon objective (quibbling only about how best to realize it).

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