Yearly Archives: 2021

What Explains Differences in Finance Research Productivity During the Pandemic?

Brad M. Barber is Professor of Finance at the University of California Davis Graduate School of Management; Wei Jiang is Arthur F. Burns Professor of Free and Competitive Enterprise in the Finance Division at Columbia Business School; and Adair Morse is Associate Professor of Finance at the University of California Berkeley Haas School of Business. This post is based on a recent paper, forthcoming in the Journal of Finance, authored by Mr. Barber, Ms. Jiang, Ms. Morse; Manju Puri, J. B. Fuqua Professor of Finance at Duke University Fuqua School of Business; Heather E. Tookes, Professor of Finance at Yale School of Management; and Ingrid M. Werner, Martin and Andrew Murrer Professor in Finance at The Ohio State University Fisher College of Business.

Based on a survey of American Finance Association members in late 2020, this study explores disparate impacts of COVID-19 on research productivity and tests the main channels that could have contributed to the findings. We received 1,440 responses, 85.4% of which are from faculty members. Most of the survey responses are reported in Likert scales (from 1 to 5), which is accommodated by ordered logistic models. Because the pandemic hit everyone by complete surprise, and because the regressors in our models represent mostly pre-existing characteristics, endogeneity should not be a major concern for most of the inferences we made.

During the pandemic, 78.1% of faculty respondents report a decrease in research productivity and 60% report spending less time on research, while 14.5% of faculty report an increase in research productivity and 21.5% report spending more time on research. The variation in research effects relates to predetermined factors—family structure and gender. Research productivity of women and faculty with children, especially very young children (ages 0 to 5), is particularly negatively impacted by the pandemic, and these two factors appear to work independently without a significant interaction effect. Thus, the pandemic could set back recent efforts to ameliorate the gender disparity in academic finance. Also negatively impacted are junior faculty of both genders, as they are more likely to have young children and experience professional isolation. Because junior faculty are the group for whom current research productivity will have the greatest impact on future career outcomes, the impact of these distortions may have profound effects on research and on the profession as a whole.

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Breach of Fiduciary Duties in Administering Defined Contribution Plans

Nancy G. Ross and Richard E. Nowak are partners, and Jed W. Glickstein is an associate at Mayer Brown LLP. This post is based on their Mayer Brown memorandum.

On July 2, 2021, the US Supreme Court granted certiorari in Hughes v. Northwestern University, No. 19-1401, to address the pleading standard that applies to breach of fiduciary duty claims under the Employee Retirement Income Security Act of 1974 (ERISA). Hughes is one of now hundreds of cases filed in recent years against the company sponsors and fiduciaries of defined contribution 401(k) and 403(b) plans alleging breaches of fiduciary duties for purportedly failing to adequately control the plan’s administrative costs or monitor the plan’s investments.

The plaintiffs in Hughes contended that the Northwestern University retirement plan paid too much for recordkeeping services by using multiple recordkeeping vendors, not soliciting bids for recordkeeping and not negotiating for fee reductions. The plaintiffs also alleged that the plan offered retail share classes of various mutual funds instead of less expensive institutional shares. The complaint mentioned various other potential theories of imprudence, including the number and type of investments offered to participants and those funds’ historical performance, but the plaintiffs did not discuss those theories in their certiorari petition.

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Presidio Shines Light on Key Delaware Deal Litigation Trends and Topics

Edward B. Micheletti is partner, Bonnie W. David is counsel, and Ryan Lindsay is an associate at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on their Skadden memorandum, and is part of the Delaware law series; links to other posts in the series are available here.

In Firefighters’ Pension System of the City of Kansas City, Missouri Trust v. Presidio, Inc., Vice Chancellor Laster of the Delaware Court of Chancery dismissed claims against directors of Presidio, Inc. (Presidio) and Presidio’s controlling stockholder arising out of the sale of Presidio, while sustaining claims against Presidio’s Chairman/CEO, the buyer (Buyer) and Presidio’s financial advisor. The case is notable for the stockholder plaintiff’s allegation of an undisclosed “tip” from the financial advisor to the buyer that purportedly allowed the buyer to strategically increase and structure its offer and close the deal.

The decision—which the court labeled as an “Opinion,” indicating it was intended to cover significant or novel issues—addresses several deal litigation topics and is worthy of analysis by M&A practitioners. The court discusses (i) the applicable standard of review for the sale of a controlled company to a third party, and the applicability of the “Synthes safe harbor”; (ii) potential liability for financial advisors premised on a “fraud-on-the-board” theory; and (iii) the continuing trend of breach of fiduciary duty claims against officers, who are not protected by exculpation provisions in a corporation’s certificate of incorporation.

Background

The case arose from the acquisition of Presidio in December 2019. Approximately seven months earlier, in May 2019, Presidio’s controlling stockholder began exploring a sale of the company, assisted by financial advisor LionTree Advisors, LLC (LionTree). The controller and LionTree held early exploratory meetings with a potential financial buyer, and Clayton Dubilier & Rice, LLC (CD&R), a potential strategic buyer. In June 2019, LionTree and Presidio’s chairman/CEO met with CD&R about a possible transaction with Presidio. CD&R allegedly suggested to the chairman/CEO that it desired a merger of equals with a portfolio company, in which his continued employment would not be guaranteed.

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Addressing the Consultation Conundrum

Lindsey Stewart is Senior Manager of Investor Engagement at KPMG LLP. This post is based on his KPMG memorandum. Related research from the Program on Corporate Governance includes The Untenable Case for Perpetual Dual-Class Stock (discussed on the Forum here) and The Perils of Small-Minority Controllers by Lucian Bebchuk and Kobi Kastiel (discussed on the Forum here).

Key points

  • Recent UK government consultations have the common aim of reinforcing the UK’s position as a world-class investment destination, but they approach that aim with differing priorities.
  • In responding to these consultations, UK shareholders—who overall are staunch defenders of the “one share one vote” principle—are carefully weighing up the costs and benefits of giving greater control to company founders and directors.
  • Proposals of BEIS” “Restoring Trust” consultation—such as those on internal controls attestations, the Audit and Assurance Policy, and the Resilience Statement—could help bridge the gap
  • The ongoing consultations are a unique opportunity for all stakeholders to influence the direction of corporate governance standards in the UK.

There’s been a flood of reviews and consultations from the UK government on the future of UK PLC as it seeks to “build back better” after the pandemic—a fact that public policy and governance experts can’t fail to have noticed.

My colleagues and I, in KPMG’s UK Audit practice, have unsurprisingly focused our attention on the 230-page consultation from the Department for Business, Energy and Industrial Strategy (BEIS): “Restoring Trust in Audit and Corporate Governance’.

Around the same time as “Restoring Trust” was issued, two other reviews were published by HM Treasury—the UK Listings Review by Lord Jonathan Hill and the Review of UK Fintech by Ron Kalifa OBE.

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Chair Gensler’s Insight on the SEC’s New Regulatory Agenda

Brian V. Breheny and Raquel Fox are partners and Caroline S. Kim is counsel at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on a Skadden memorandum by Mr. Breheny, Ms. Fox, Ms. Kim, Andrew Brady, Ryan Adams, and Keema Givens.

In prepared remarks on June 23, 2021, Chair Gary Gensler of the Securities and Exchange Commission (SEC) provided additional insight into the commission’s recently announced regulatory agenda and its shift in priorities. His statement and the agenda show that new public company disclosures will be at the forefront of upcoming and pending rulemakings. In response to the regulatory agenda, the two Republican commissioners, Hester Peirce and Elad Roisman, issued a joint statement voicing concerns about efforts to undo certain recently adopted rules.

Although the timing and ultimate outcome of the new rulemakings remain to be seen, public companies should expect to see a number of proposals in the coming months, which will be subject to public comments before final adoption by the SEC. Significant proposed and final SEC rulemaking items from both the short-term agenda and long-term agenda are summarized below.

Short-Term Agenda

ESG Disclosures. Chair Gensler, then-Acting SEC Chair Allison Herren Lee and senior members of the SEC staff [1] have made a number of statements this year about environmental, social and governance (ESG) issues. The commission now expects to adopt proposed rules to require enhanced ESG disclosures in the following areas:

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Strengthening Internal Controls: What Do Investors Need?

Lindsey Stewart is Senior Manager of Investor Engagement at KPMG LLP. This post is based on a KPMG memorandum by Mark Baillache, and Sophie Gauthier-Beaudoin.

Robust controls over financial reporting enhances trust in business and improves reporting quality. The UK already has requirements in this area but there is widespread agreement among users of financial reporting that there is much room for improvement.

In March, the long-awaited consultation on ‘Restoring Trust in Audit and Corporate Governance’ was published by the Department for Business, Energy and Industrial Strategy (BEIS). One of its key proposals is that the UK should adopt a strengthened internal controls framework for companies, similar to the US Sarbanes-Oxley Act (SOX) which requires directors to attest to the effectiveness of internal controls over financial reporting. The proposal explores a number of options featuring varying degrees of auditor involvement with the intention that premium listed companies be required to apply them first, followed by all other Public Interest Entities after two years.

Learnings from the US experience

Although much has been said and written about the time and cost of implementing a more robust internal controls regime, the experience in the United States suggests that the benefits justify the expense.

Research and evidence demonstrate that SOX has strengthened the reliability of financial reporting in the US delivering tangible benefits for the capital markets, including:

  • Improved quality of financial reporting
  • More robust financial controls
  • Rebalancing the relationship between the auditor and management
  • Highlight problems early and an early warning for fraud

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Weekly Roundup: July 9-15, 2021


More from:

This roundup contains a collection of the posts published on the Forum during the week of July 9–15, 2021.



Shareholder Proposal No-Action Requests in the 2021 Proxy Season


Chair Gensler’s Remarks at the Asset Management Advisory Committee Meeting


A Private Fund’s Guide to ESG Compliance


SEC Enforcement Action Highlights Need for Internal Communications About Cybersecurity Problems


CEO Compensation: Evidence From the Field



Venture Capital’s “Me Too” Moment


Say on Pay: Approval Slides as CEO Pay Rises


What Companies Need to Know About Modern Ransomware Attacks and How to Respond


Don’t Take Their Word For It: The Misclassification of Bond Mutual Funds



Supreme Court’s Vacation of Class Certification Order in Decades-Long Class Action



New OECD Corporate Governance Reports and the G20/OECD Principles of Corporate Governance

Serdar Celik is Acting Head and Daniel Blume is a Senior Policy Analyst in the Corporate Governance and Corporate Finance Division of the Organization for Economic Co-operation and Development (OECD). This post is based on two OECD reports issued on June 30, 2021, by the OECD Corporate Governance Committee, chaired by Mr. Masato Kanda of Japan. Related research from the Program on Corporate Governance includes Learning and the Disappearing Association between Governance and Returns by Lucian Bebchuk, Alma Cohen, and Charles C. Y. Wang (discussed on the Forum here); and What Matters in Corporate Governance? by Lucian Bebchuk, Alma Cohen, and Allen Ferrell.

The Organisation for Economic Co-operation and Development (OECD) has just issued two major new reports—The Future of Corporate Governance in Capital Markets Following the COVID-19 Crisis, and the 2021 edition of the OECD Corporate Governance Factbookthat will serve as key references for the OECD’s upcoming review and revisions to the G20/OECD Principles of Corporate Governance.

The G20/OECD Principles, since their first issuance by the OECD in 1999 and subsequent revisions in 2005 and 2015, are now recognized as the leading global standard to guide policy makers and regulators in devising effective institutional, legal and regulatory frameworks for the corporate governance of listed companies. Endorsed not only by the 38 members of the OECD but also by the G20 and Financial Stability Board, more than 50 jurisdictions worldwide now adhere to this OECD recommendation.

However, as the new OECD report on The Future of Corporate Governance in Capital Markets Following the COVID-19 Crisis makes clear, both the COVID-19 pandemic and longer-term trends suggest that governments’ corporate governance frameworks will need to make further adaptations to ensure that capital markets may serve their intended purpose of allocating substantial financial resources to support long-term investments underpinning economic growth and innovation. READ MORE »

Compensation Disclosures and Strategic Commitment: Evidence from Revenue-Based Pay

Matthew J. Bloomfield is Assistant Professor of Accounting at The Wharton School of the University of Pennsylvania. This post is based on his recent paper, forthcoming in the Journal of Financial Economics. Related research from the Program on Corporate Governance includes the book Pay without Performance: The Unfulfilled Promise of Executive CompensationExecutive Compensation as an Agency Problem; and Paying for Long-Term Performance (discussed on the Forum here), all by Lucian Bebchuk and Jesse Fried.

Some firms appear to structure their executives’ incentives as strategic weapons, designed to soften competition from industry rivals. In particular, firms incorporate revenue-based pay into their executives’ pay plans when doing so is most effective at making rivals back off. This approach to executive compensation is consistent with the theory of “strategic delegation,” and suggests that executive compensation plans play a key role in firms’ strategic positioning.

Background

How should performance be measured and rewarded? It’s a question that has fascinated economists, educators, consultants, and bosses for decades. Within the economics literature, the dominant perspective is that of a moral hazard framework, first formalized by Holmstrom (1979). Employees (“agents”) want to do whatever is in their best interest—shirk their difficult/unpleasant duties and/or extract personal benefits, all the while garnering as much compensation as possible. In contrast, bosses/owners (“principals”) want the agent to engage in productive activity to maximize firm profits/value—something the agent will only do insofar as it boosts their compensation. Viewed from this perspective, the purpose of a performance measurement system is to differentiate between productive and unproductive activity, so that productivity can be rewarded and encouraged. As such, the best compensation plan is that which elicits productive/profitable behavior as efficiently and effectively as possible. This framework has proven very powerful. In addition to being simple and intuitive, the moral hazard framework has demonstrated remarkable ability to explain observed compensation practices, both for rank-and-file employees, and for top-level managers and chief executive officers (“CEOs”). However, this framework does not fully explain the gamut of observed compensation practices.

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Supreme Court’s Vacation of Class Certification Order in Decades-Long Class Action

Jason Halper is partner, and Adam K. Magid and Matthew Karlan are special counsel at Cadwalader, Wickersham & Taft LLP. This post is based on a Cadwalader memorandum by Mr. Halper, Mr. Magid, Mr. Karlan, and Nicholas Caros. Related research from the Program on Corporate Governance includes Rethinking Basic by Lucian Bebchuk and Allen Ferrell (discussed on the Forum here); and Price Impact, Materiality, and Halliburton II by Allen Ferrell and Andrew Roper (discussed on the Forum here).

On June 21, 2021, the United States Supreme Court issued a decision in Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System, [1] vacating a decision of the Second Circuit that affirmed certification of a securities fraud class action against The Goldman Sachs Group, Inc. The Court directed the Second Circuit to consider the “generic” nature of Goldman’s alleged misrepresentations in assessing whether Goldman had successfully rebutted the fraud on the market presumption of reliance for purposes of plaintiff’s claim under Section 10(b) of the Securities Exchange Act of 1934, and therefore, whether class certification is appropriate. In an opinion by Justice Amy Coney Barrett, the Court held that courts at class certification must consider “all evidence relevant to price impact,” which is a prerequisite to invoking the fraud-on-the-market presumption afforded to plaintiffs in an efficient market, “regardless whether that evidence overlaps with materiality or any other merits issue.” Because the Second Circuit’s opinion left “sufficient doubt” as to whether it had “properly considered the generic nature of the alleged misrepresentations,” the Court vacated and remanded the case to the lower court. A 6-3 majority of the Court also held that a defendant seeking to rebut the fraud-on-the-market presumption of reliance (also known as the Basic presumption) bears the burden of persuasion to show, by a preponderance of the evidence, that a misrepresentation did not in fact lead to a distortion of the price of a security.

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