Yearly Archives: 2019

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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SEC Enforcement for Internal Control Failures

Nicolas Grabar and Sandra L. Flow are partners and Alexander Janghorbani is a senior attorney at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary Gottlieb memorandum by Mr. Grabar, Ms. Flow, Mr. Janghorbani, Alejandro Canelas Fernandez, and Tapan Oza.

On January 29, 2019, the SEC announced four settlements with publicly-traded companies for failure to maintain adequate internal control over financial reporting (ICFR). None of the companies was charged with making false or inaccurate statements, either about its ICFR or otherwise; indeed, each had repeatedly disclosed material weaknesses in ICFR over many years.

These cases are interesting for at least three reasons:

  • They were announced together to send a message about the SEC’s focus on its agenda to strengthen accounting and controls at public companies.
  • The cases are about controls, and not about disclosure. Material weaknesses in ICFR are not just a disclosure issue: a continuing failure to maintain adequate controls is a violation of law, even if the failure is fully disclosed and there is no other disclosure problem.
  • The cases join several recent instances in which the SEC has shown a willingness to use the internal controls provisions of the Securities Exchange Act of 1934 independently of specific disclosure requirements.

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Remarks Before the Council of Institutional Investors

Hester M. Peirce is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent remarks before the Council of Institutional Investors Spring Conference, available here. The views expressed in this post are those of Ms. Peirce and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

Thank you, Mary [Francis], for that kind introduction and for the opportunity to be here today. Before I begin, I will give my standard disclaimer. The comments I make today represent my own views and not necessarily those of the Commission or my fellow Commissioners.

I consider it a great honor to have some time with you here this morning. You represent such an important group of participants in our markets with an aggregate of approximately $4 trillion dollars in member assets under management invested in the markets. [1] You bring remarkable sophistication and great wisdom to the job of investing and you do so on behalf of many Americans. Your views, therefore, on how we can make our capital markets function even better than they already do are of real interest to me.

Institutional investors are the market’s repeat, long-term, and bulk players. Costs that are not important to the occasional investor add up to amounts that matter greatly to investors that trade frequently or in large size. It is helpful for me to know, for example, the types of information you find to be material in making decisions about where to trade. [2] More generally, your voices are very important in discussions about whether and how to change market structure in both the equity and the fixed income markets. In particular, you have emphasized the importance of market transparency in our thinking about effective market structure.

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

Mark Fenwick is a Professor at Kyushu University Graduate School of Law; Joseph McCahery is Professor in the Department of Business Law at Tilburg University; and Erik P. M. Vermeulen is Professor of Business & Financial Law at Tilburg University. This post is based on their recent paper.

A significant development in the global economy over the last two decades has been the emergence of businesses that define and organize themselves as “platforms.” By platform, we refer to any organization that uses digital and other emerging technologies to create value by facilitating connections between two or more groups of users. Think Amazon, Facebook, or Uber.

The type of connection varies depending on the platform. Some platforms facilitate connections between the buyer and seller of goods (Amazon); some facilitate connections between those wanting a service and those willing to provide it (Uber); and others simply facilitate connections (information exchange) between friends (Facebook). There is enormous diversity of use cases for the platform model: exchange platforms, service platforms, content platforms, software platforms, social platforms, investment platforms and smart contract platforms. But what is common to all platforms is that they make connections between “creators” and “extractors” of value and the platform generates a profit from making these connections, either by taking a commission or through advertising.

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Driving the Conversation: Long-Term Roadmaps for Long-Term Success

Ariel Fromer Babcock is director, Allen He is a senior research associate, and Victoria Tellez is a research associate at FCLTGlobal. This post is based on their FCLTGlobal memorandum. 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 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).

Despite clear evidence that investors prefer long-term communications focused on a few key drivers of performance, companies remain mired in information demands from all sides. Long-term roadmaps are a form of investor communication that brings together a unified articulation of how a company will create long-term value with the most relevant metrics to track long-term performance. They have a proven record at leading companies, and evidence suggests that the majority of investors (especially long-term investors) prefer this approach. By focusing on key elements of performance such as competitive advantages, long-term objectives, and a strategic plan matched with clear capital allocation priorities, companies can build buy-in among long-term investors who support a focus on long-term value creation.

Why Long-term Roadmaps?

Survey after survey indicates that investors prefer forward-looking, long-term guidance around a company’s strategy and expected performance.

This post, which represents the collective effort and experience of FCLTGlobal’s Members, academic experts, and other investment leaders, suggests a way to shift the investor relations conversation from quarterly “hits” and “misses” toward how companies create long-term value.

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An Early Look at 2019 US Shareholder Proposals

Subodh Mishra is Executive Director at Institutional Shareholder Services, Inc. This post is based on an ISS paper by Kosmas Papadopoulos, Managing Editor and Executive Director with ISS Analytics, the data intelligence arm of Institutional Shareholder Services. Related research from the Program on Corporate Governance includes Social Responsibility Resolutions by Scott Hirst (discussed on the Forum here).

In the U.S., shareholder proposal filings have historically played an important role in advancing corporate governance and in highlighting key risks related to environmental and social issues. Some of the major shifts in governance practices during the past two decades—including the annual elections of directors, the adoption of majority vote standard for director elections, and the adoption of proxy access among large firms—were largely prompted by shareholder resolution campaigns. Shareholder proposals have also served as a driving force for greater corporate awareness of environmental and social risks, such as climate change risk management, diversity and inclusion in the workplace, and sustainability reporting.

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