Yearly Archives: 2019

The Chilling Effect of Regulation FD: Evidence from Twitter

James Naughton is Assistant Professor of Accounting Information and Management at Northwestern University; Mohamed Al Guindy is Assistant Professor of Finance at the Sprott School of Business at Carleton University; and Ryan Riordan is Associate Professor at the Smith School of Business. This post is based on their recent paper.

Regulation Fair Disclosure (“Reg-FD”) was intended to stop the practice of selective disclosure, in which companies provided material information to select analysts and institutional investors prior to public disclosure. It achieved this goal by requiring that material disclosures be broadly disseminated to the public through non-exclusionary channels. While the underlying concept of broad non-exclusionary disclosures is simple, the legislative implementation of this regulation generated significant controversy. In particular, a number of stakeholders believed that the difficulty associated with identifying material disclosures and broad non-exclusionary methods of dissemination would discourage firms from providing informal communications that could potentially violate Reg-FD, thus leading to a deterioration in the overall level of disclosure. While a number of prior studies have documented that Reg-FD has eliminated certain selective disclosures, it remains unclear how Reg-FD affects the firm’s overall disclosure policy and information environment.

In our paper, we contribute to our understanding of how Reg-FD may have influenced firms’ overall disclosure policy by examining one specific aspect—the adoption of new disclosure technologies. More specifically, we provide insights as to whether firms are reluctant to adopt new disclosure technologies without clear guidance from the SEC endorsing their use for the purposes of complying with Reg-FD. We focus on Twitter because prior studies have established that there are positive capital market benefits to Twitter usage, suggesting that Twitter would be broadly adopted if there were limited costs to doing so. In addition, firms do not have to use Twitter to disseminate information provided through traditional channels, which allows us to isolate the voluntary adoption of Twitter as a new disclosure medium.

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Impact of the California Consumer Privacy Act on M&A

Pritesh P. Shah is a partner and Daniel F. Forester is an associate at Davis Polk & Wardwell LLP. This post is based on a Davis Polk memorandum by Mr. Shah, Mr. Forester, Jon Leibowitz, Frank J. Azzopardi, and Matthew J. Bacal. Related research from the Program on Corporate Governance includes M&A Contracts: Purposes, Types, Regulation, and Patterns of Practice, and Allocating Risk Through Contract: Evidence from M&A and Policy Implications (discussed on the Forum here) both by John C. Coates, IV.

Introduction

Similar to the European Union’s General Data Protection Regulation, the passage of the California Consumer Privacy Act (“CCPA”) is ushering in a new era of data privacy and data security considerations in the United States as companies are preparing for its effectiveness, the possibility for follow-ons in other states and the potential for preemptive federal legislation. Since the CCPA’s passage in 2018, the CCPA’s requirements have been a focus for companies based not only in California, but throughout the United States and abroad due to its extraterritorial scope. While the CCPA does not become effective until January 2020, companies would be well served to evaluate now how the law’s requirements may apply to them and impact their day-to-day operations, and, in particular, their M&A transactions.

We discuss below the transactional considerations for investors, purchasers and sellers of companies that collect or process personal data of California residents arising from the CCPA.

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Business Chemistry: A Path to a More Effective Board Composition

Dannetta English Bland is a Senior Manager at the Center for Board Effectiveness at Deloitte LLP. This post is based on her Deloitte memorandum.

Introduction

The average board member spends about 245 hours on board matters over the course of a year, according to the 2018-2019 NACD Public Company Governance Survey. [1] However, less than one-third of this time, 74 hours, [2] consists of board member interactions, such as telephonic and in-person board and committee meetings and a handful of board dinners. [3] Given these limited interactions, how well do board members actually know one another? Do they appreciate why some like to listen to the facts before commenting or why some comment before facts have been shared? Do they know why some board members lean in more heavily on details, while others seem to be exclusively focused on big picture matters? Do they understand why some members of management just do not click with the board, or why some directors don’t seem to get along?

Business Chemistry may help to answer the above questions and many others, and can play a fundamental role in understanding how the board works—or does not work—both internally and in its interactions with management. Business Chemistry is relevant for and can impact such wide-ranging matters as the composition of the board and its committees, the board’s risk posture, decision making, potential biases, and friction points. In other words, a board’s Business Chemistry can greatly affect its effectiveness and have an impact on the performance of the company.

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Delaware’s New Competition

William J. Moon is Assistant Professor of Law at the University of Maryland. This post is based on his recent article, forthcoming in the Northwestern University Law Review. Related research from the Program on Corporate Governance includes The Market for Corporate Law by Oren Bar-Gill, Michal Barzuza, and Lucian Bebchuk; Federal Corporate Law: Lessons from History by Lucian Bebchuk and Assaf Hamdani; Delaware Law as Lingua Franca: Evidence from VC-Backed Startups by Brian Broughman, Darian Ibrahim, and Jesse Fried, and (discussed on the Forum here); and Delaware’s Competition by Mark J. Roe.

American corporate law is built on a metaphor of a race: states compete to supply corporate law. For nearly half a century, corporate law scholarship has revolved around endemic questions about whether other states put competitive pressure on Delaware, and whether this competition is normatively desirable.

There is a missing piece to this important body of scholarship. In my article, Delaware’s New Competition (forthcoming in the Northwestern University Law Review and available on SSRN), I introduce foreign nations as emerging lawmakers that compete with American states in the increasingly globalizing market for corporate law. In recent decades, entrepreneurial foreign nations in offshore islands—principally the Cayman Islands, the British Virgin Islands, and Bermuda—have attracted publicly traded American corporations by offering permissive corporate governance rules and specialized business courts.

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Regulation Best Interest

Bradley Berman is counsel, Anna T. Pinedo is partner, and Michael D. Russo is an associate at Mayer Brown LLP. This post is based on their Mayer Brown memorandum.

On June 5, 2019, the Securities and Exchange Commission (SEC) adopted Regulation Best Interest (Rule 15l-1 under the Securities Exchange Act of 1934 (Exchange Act)), which requires broker-dealers and their associated persons who are natural persons to act in the best interest of their retail customers when making a recommendation. The SEC also adopted Form CRS Relationship Summary, which requires registered investment advisers (RIAs) and broker-dealers to deliver to retail investors a succinct, plain English summary about the relationship and services provided by the firm and the required standard of conduct associated with the relationship and services. (Rule 17a-14 and Form CRS under the Exchange Act.)

Regulation Best Interest (Regulation BI), Form CRS and the related rule will become effective 60 days after their publication in the Federal Register. The compliance date for both rules is June 30, 2020.

This post necessarily summarizes the principal aspects of Regulation Best Interest, as the Release runs to 771 pages.

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U.S. Board Diversity Trends in 2019

Subodh Mishra is Executive Director at Institutional Shareholder Services, Inc. This post is based on an ISS Analytics publication by Kosmas Papadopoulos, Managing Editor at ISS Analytics.

As the U.S. annual shareholder meeting season is coming to an end, we review the characteristics of newly appointed directors to reveal trends director in nominations. As of May 30, 2019, ISS has profiled the boards of 2,175 Russell 3000 companies (including the boards of 401 members of the S&P 500) with a general meeting of shareholders in 2019. These figures represent approximately 75 percent of Russell 3000 companies that are expected to have a general meeting during the year. (A small portion of index constituents may not have a general meeting during a given calendar year due to mergers and acquisitions, new listings, or other extraordinary circumstances).

Based on our review of 19,791 directorships in the Russell 3000, we observe five major trends in new director appointments for 2019, as outlined below.

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Do Firms Issue More Equity When Markets Become More Liquid?

Rogier Hanselaar is a Data Scientist at Aegon N.V.; René M. Stulz is the Everett D. Reese Chair of Banking and Monetary Economics at the Fisher College of Business at The Ohio State University; and Mathijs A. van Dijk is Professor of Finance at the Rotterdam School of Management at Erasmus University Rotterdam. This post is based on their recent article, forthcoming in the Journal of Financial Economics.

In our paper Do firms issue more equity when markets become more liquid?, we investigate whether variation in stock market liquidity helps to explain variation in corporate equity issuance over time.

It is well-known that the volume of both initial public offerings (IPOs) and seasoned equity offerings (SEOs) fluctuates considerably over time, but the underlying causes of these fluctuations are not well understood. Prior research has pointed at economic conditions (such as GDP growth) as well as capital market conditions (such as volatility) as potential determinants. It has also been documented that equity issuance tends to be high after the stock market has gone up and when aggregate stock market valuation (as measured by, for example, the aggregate price-earnings ratio) is high, which is often interpreted as evidence that firms successfully “time” the market when raising new equity.

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Debt Default Activism: After Windstream, the Winds of Change

Joshua A. Feltman, Emil A. Kleinhaus, and John R. Sobolewski are partners at Wachtell, Lipton, Rosen & Katz. This post is based on a Wachtell Lipton memorandum by Mr. Feltman, Mr. Kleinhaus, Mr. Sobolewski, and Steven A. Cohen.

In our prior memos The Rise of the Net-Short Debt Activist and Default Activism in the Debt Markets, we discussed the phenomenon of “Debt Default Activism,” in which investors purchase debt on the thesis that a borrower may already be in default, and then seek to profit from the alleged default, by, for example, triggering a credit default swap (or “CDS”) payout or trading various interests around the negative news generated by the default allegation.

In February, the most prominent example of Debt Default Activism came to a conclusion. Aurelius, a bondholder of telecom services provider Windstream that was reported to be economically “net-short” Windstream through CDS, prevailed in litigation with Windstream over a complicated debt covenant issue.

Windstream’s “long-only” debtholders, whose rights were nominally vindicated by the decision, were not happy. They had voted overwhelmingly to waive the alleged covenant default (the court concluded that those consents were not valid) in order to avoid exactly the result that ensued: Windstream’s bankruptcy. The long-only creditors had good reason to aid Windstream’s attempt to stave off Aurelius’ challenge. With Windstream’s bankruptcy, the value of their positions plummeted, illustrating that Debt Default Activism can harm not only corporate borrowers but also their creditors.

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Calling the Cavalry: Special Purpose Directors in Times of Boardroom Stress

Gregory V. Varallo is the President of Richards Layton & Finger, PA. and Frank M. Placenti leads the Corporate Governance Practice at Squire Patton Boggs LLP. This post is part of the Delaware law series; links to other posts in the series are available here.

Over the last three decades, the demands placed on public company directors have increased exponentially. In addition to ordinary course audit committee, compensation committee, compliance and business oversight work, directors are now expected to animate the company’s sustainability programs, focus a keen eye on boardroom diversity and “refreshment,” understand cyber and other enterprise risks, and assure that the company is operating in accordance with evolving standards of corporate social responsibility.

Then, often without warning, into this crowded docket parachutes an existential crisis, transformational transaction, corporate restructuring, intrusive governmental investigation or enterprise-threatening lawsuit. When these events occur, and they do with increasing frequency, even the best boards can find their time and resources strained. A Board may also find that its directors lack the specific experience and/or the legally required independence to handle the issues presented by these “special situations.”

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Mootness Fees

Steven Davidoff Solomon is Professor of Law at UC Berkeley School of Law. This post is based on a recent article, forthcoming in Vanderbilt Law Review, authored by Professor Davidoff Solomon; Matthew D. Cain, Visiting Research Fellow at the Harvard Law School Program on Corporate Governance; Jill Fisch, Saul A. Fox Distinguished Professor of Business Law and Co-Director, Institute for Law and Economics at the University of Pennsylvania Law School; and Randall S. Thomas, John S. Beasley II Chair in Law and Business at Vanderbilt Law School. Related research from the Program on Corporate Governance includes Federal Corporate Law: Lessons from History by Lucian Bebchuk and Assaf Hamdani. This post is part of the Delaware law series; links to other posts in the series are available here.

In Mootness Fees, forthcoming in the Vanderbilt Law Review, we document the latest development in merger litigation, mootness dismissals. In 2016, the Delaware courts announced in In re Trulia that they would no longer approve merger litigation settlements which provided for a release and an award of attorneys’ fees if they did not achieve meaningful benefits for shareholders. Trulia, coupled with other substantive changes in Delaware law, reduced the attractiveness of merger litigation in Delaware.

Delaware’s crackdown did not put an end to merger litigation, which, as we document in prior work, had become ubiquitous however. Instead, the changes resulted in the flight of case filings from Delaware to the federal courts. These federal suits repackaged state-law fiduciary duty claims into antifraud actions under Section 14A and Rule 14a-9 thereunder. By 2017, merger litigation rates, which had dipped to 74% of deals in 2016, rose to 83%, but only 10% of litigated deals faced a challenge in Delaware versus 87% in federal court. By 2018, the numbers were even more dramatic—5% of litigated deals were challenged in the Delaware courts, but 92% gave rise to a federal court lawsuit.

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