Yearly Archives: 2021

Does Common Ownership Really Increase Firm Coordination?

Katharina Lewellen is Associate Professor of Business Administration at Dartmouth College Tuck School of Business, and Michelle Lowry is TD Bank Endowed Professor at Drexel University LeBow College of Business. This post is based on their recent paper, forthcoming in the Journal of Financial Economics. Related research from the Program on Corporate Governance includes The Agency Problems of Institutional Investors by Lucian Bebchuk, Alma Cohen, and Scott Hirst (discussed on the Forum here); Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy by Lucian Bebchuk and Scott Hirst (discussed on the forum here); and The Specter of the Giant Three by Lucian Bebchuk and Scott Hirst (discussed on the Forum here); and Horizontal Shareholding by Einer Elhauge (discussed on the Forum here).

In recent years, academics and regulators have raised concerns about the high levels of common ownership within U.S. firms. The argument is that common owners—that is, investors holding stakes in multiple firms within a single industry—have incentives to discourage competition among industry rivals in their portfolios. Common ownership has increased steadily over the past few decades, fueled by the rise in institutional ownership and the emergence of large and highly diversified institutional investors. Whereas only 17% of S&P 500 firms had a blockholder that also owned a block in a competitor firm in 1990, this fraction increased to 81% by the end of 2015.

A growing number of academic studies conclude that the rise in common ownership has indeed caused cooperation among firms to increase and competition to decrease. This evidence led to several prominent policy proposals to regulate or limit common ownership. However, empirical testing of the effects of common ownership is challenging as ownership and firm behavior could correlate for many reasons even in the absence of a causal link. In this paper, we evaluate the empirical approaches used in prior literature to identify the effects of common ownership. With a more thorough understanding of the advantages and shortcomings of each approach, we then revisit the conclusions of prior empirical studies that common ownership affects firm behavior.

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Caremark Developments and the Imperative of Regular Risk Review

William Savitt is partner at Wachtell, Lipton, Rosen & Katz. This post is based on his Wachtell memorandum. Related research from the Program on Corporate Governance includes Monetary Liability for Breach of the Duty of Care? by Holger Spamann (discussed on the Forum here).

Every day, the litigation environment reinforces the imperative for boards of directors to regularly review key enterprise risks. In a recently filed complaint, stockholders of NiSource, Inc, a natural gas supplier, sued to hold the company’s directors liable for breach of fiduciary duty arising out of a tragic 2018 pipeline accident that caused one fatality, multiple injuries, and mass evacuations. Alleging that the NiSource board disregarded “numerous red flags evidencing violations of gas pipeline safety laws that occurred over a number of years,” the stockholder plaintiff charged the directors with “bad faith oversight failures [that] are not protected under Delaware law.”

Whether the lawsuit ripens into fiduciary liability will turn on whether NiSource can persuade a court that it had in place control and monitoring functions commensurate with the scope and scale of the potential risk. Delaware’s courts have recently sustained against a motion to dismiss multiple “oversight” claims of this kind—often called Caremark claims, for the 1996 case where the theory of liability was first recognized—and such claims now regularly follow whenever a company has bad news. Once a Caremark claim survives a pleadings motion, it becomes a vehicle for extensive discovery and takes on substantial settlement value, even if not ultimately meritorious.

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Weekly Roundup: May 14–21, 2021


More from:

This roundup contains a collection of the posts published on the Forum during the week of May 14–20, 2021.

Cybersecurity Oversight and Defense — A Board and Management Imperative


Materiality: The Word that Launched a Thousand Debates


Do ESG Funds Make Stakeholder-Friendly Investments?



SEC Considering Heightened Scrutiny of Projections in De-SPAC Transactions


Which Corporate ESG News Does the Market React To?


The Lipton Archive



Human Capital Disclosure: What Do Companies Say About Their “Most Important Asset”?



Chalking Up a Victory for Deal Certainty




Court of Chancery Finds Pandemic Was Not an MAE—Snow Phipps


The Case for a Best Execution Principle in Cross-Border Payments


2021 Proxy Season Issues and Early Voting Trends

James J. Miller is Senior Managing Director at Alliance Advisors. This post is based on his Alliance Advisors memorandum.

With the proxy season in full swing, this post looks at the issues and trends that thus far have defined the 2021 season.

Takeaways

Director Elections

  • Year-over-year average investor support for directors remains statistically unchanged at 95.6% compared to last year’s support level at this time, however, many expect support levels to drop as the season progresses based on 2020 full-season results
  • Average support for female directors is 1.1 ppts. higher than male nominees—in line with prior years

Say on Pay

  • Increased opposition to say on pay votes at Russell 3000 companies and is more pronounced at S&P 500 companies (based on small sample)
  • The unusually low support levels (89.0% Russell 3000 and 87.1% S&P 500) coupled with a high failure rate 2%—twice as high as the failure rate observed at this time last year—likely indicate the discontent of shareholders/ proxy advisors with those companies that made significant changes to executive compensation without descriptive disclosure and/or a compelling rationale [1]

ESG

  • E&S hot topics remain unchanged—climate change, political activity, diversity—but shareholder support has greatly increased, most notably, at large institutions
  • Most expect support levels to beat historical averages as investors signal increased willingness to support reasonable proposals

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The Case for a Best Execution Principle in Cross-Border Payments

Douglas W. Arner is Kerry Holdings Professor of Law at the University of Hong Kong; Ross Buckley is Scientia Professor and King & Wood Mallesons Chair of International Finance Law at the University of New South Wales; and Dirk A. Zetzsche is Professor and ADA Chair in Financial Law at the University of Luxembourg and Director of the Center for Business & Corporate Law at Heinrich Heine University in Duesseldorf. This post is based on a recent paper by Mr. Arner, Mr. Buckley, Mr. Zetzsche, and Maria Lucia Passador.

Cross-border payments are typically slow, with poor transparency, limited access, and much higher overall costs than domestic payments. Our new paper analyzes how the best execution principle, developed in the context of securities and derivatives regulation, should be applied to cross-border payments. Under this principle, financial institutions would be legally required to provide the most advantageous order execution in terms of speed, risks and costs for their customers given the prevailing market environment.

Cross-border payments currently rest on a system of large, globally connected correspondent banks. The relationship among payment institutions determines how orders are routed. Payment institutions charge their clients on a “cost plus profit” basis and some institutions benefit from rebates based on liquidity volume (kick-backs) and from reduced rates and soft commissions elsewhere in the payment chain. Overall, there is little incentive for payment institutions to put their clients first in terms of speed, costs and risks in this environment of “best friends”. Applying a “best execution” requirement for cross-border payments would be transformative in the same way as its application in the US, EU and UK in the context of securities transactions.

In drafting a best execution rule for cross-border payments we suggest six issues be considered.

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Court of Chancery Finds Pandemic Was Not an MAE—Snow Phipps

Gail Weinstein is senior counsel, and Philip Richter and Steven Epstein are partners at Fried, Frank, Harris, Shriver & Jacobson LLP. This post is based on a Fried Frank memorandum by Ms. Weinstein, Mr. Richter, Mr. Epstein, Warren S. de Wied, and Randi Lally, and is part of the Delaware law series; links to other posts in the series are available here. Related research from the Program on Corporate Governance includes Are M&A Contract Clauses Value Relevant to Target and Bidder Shareholders? by John C. Coates, Darius Palia, and Ge Wu (discussed on the Forum here); and Allocating Risk Through Contract: Evidence from M&A and Policy Implications by John C. Coates, IV (discussed on the Forum here).

The Delaware Court of Chancery has issued its much anticipated post-trial decision in Snow Phipps Group, LLC v. KCake Acquisition, Inc. (April 30, 2021), which involved private equity firm Kohlberg’s attempted termination of its $550 million deal to acquire DecoPac, Inc. from private equity firm Snow Phipps. Kohlberg contended that the COVID-19 pandemic constituted a “Material Adverse Effect” (MAE) on DecoPac; and that DecoPac’s responses to the pandemic constituted a breach of its covenant to operate, pending closing, in the ordinary course of business. Then-Vice Chancellor (now Chancellor) Kathaleen McCormick found that (i) the pandemic did not constitute an MAE and (ii) DecoPac did not breach its ordinary course covenant. The court ruled that Kohlberg therefore must close the acquisition.

In the only other Delaware decision on these pandemic-related issues (AB Stable, issued November 30, 2020), the court similarly held that the pandemic was not an MAE under the merger agreement at issue in that case—but held that the target company’s responses to the pandemic constituted a breach of its ordinary course covenant. The buyer was entitled not to close, Vice Chancellor Laster ruled in that case.

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Statement by Commissioner Peirce on S&P Dow Jones Indices LLC

Hester M. Peirce is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent public statement. 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.

Today [May 17, 2021] the Commission announced a settled enforcement action against S&P Dow Jones Indices LLC (“S&P DJI”). The Commission charged S&P DJI with violating Section 17(a)(3) of the Securities Act, which prohibits, in the offer and sale of securities, engaging in any transaction, practice, or course of business which operates or would operate as a fraud or deceit on the purchaser. In charging S&P DJI, the Commission addresses conduct that is outside the reach of Section 17(a)(3). Moreover, this precedent, if not appropriately confined to its particular facts, will open the door to subsequent expansions of the securities laws to reach all manner of actors and conduct with even more tenuous connections to the offer and sale of securities. Accordingly, I do not support bringing this action.

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Is Public Equity Deadly? Evidence from Workplace Safety and Productivity Tradeoffs in the Coal Industry

Erik Gilje is Assistant Professor of Finance at The Wharton School of the University of Pennsylvania, and Michael Wittry is Assistant Professor of Finance at the Fisher College of Business at The Ohio State University. This post is based on their recent paper.

Privately held and publicly traded firms are responsible for roughly equal portions of U.S. economic output, but are subject to extremely large differences in agency and financial frictions, which can lead to significant variation in corporate policies and real outcomes. Using detailed asset-level data from the U.S. coal industry, our paper examines how listing related frictions affect potential tradeoffs that firms face between workplace safety and firm productivity.

Theory offers competing predictions on how listing status might relate to workplace safety. On the one hand, the cost of adverse workplace incidents could be higher for public companies, which have greater disclosure requirements and reputational risk, and are subject to greater stockholder and political pressure than private firms. Public firms also have greater access to external capital markets, potentially alleviating cuts to safety investments when internally constrained. These factors each point towards public firms having safer workplaces than their private counterparts.

On the other hand, private firms have less diversified ownership, which may alleviate agency costs arising from information asymmetry. Ownership concentration may also limit risk-sharing opportunities, and thus, risk-taking. Further private firm owners may have strong social ties to the local community and derive personal utility from a safe workplace and good relationships with employees. These factors would suggest that public firms engage in activities that result in a higher workplace injury and accident propensity.

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Chalking Up a Victory for Deal Certainty

Hille R. Sheppard is partner and Charlotte K. Newell is an associate at Sidley Austin LLP. This post is based on their Sidley memorandum, and is part of the Delaware law series; links to other posts in the series are available here. Related research from the Program on Corporate Governance includes Are M&A Contract Clauses Value Relevant to Target and Bidder Shareholders? by John C. Coates, Darius Palia, and Ge Wu (discussed on the Forum here); and The New Look of Deal Protection by Fernan Restrepo and Guhan Subramanian (discussed on the Forum here).

Last Friday [April 30, 2021], soon-to-be Chancellor McCormick issued a decision in Snow Phipps Group, LLC v. KCake Acquisition, Inc. that ordered the defendant buyers to specifically perform their agreement to acquire DecoPac Holdings, Inc. (“DecoPac” or the Company), which sells cake decorations and technology for use in supermarket bakeries. The 125-page decision, which opens with a quote from the incomparable Julia Child (“A party without cake is just a meeting”), and is rightly described by the Court as a “victory for deal certainty,” offers a detailed analysis of several common contractual provisions in the time of COVID-19. Despite its length, it is a must-read for those interested in the drafting and negotiation of M&A agreements generally, and their operation during the COVID-19 pandemic specifically.

Factual Background

The stock purchase agreement at issue was negotiated in early 2020, as the COVID-19 pandemic was unfolding. At least two key matters were discussed in the 48 hours before the agreement was signed on March 6, 2020. First, on March 4, buyers reduced their offer from $600 million to $550 million; sellers accepted, believing COVID-19’s impact on the market and other potential buyers left only a failed process as the alternative. Second, that same day, the sellers sought to carve “pandemics” and “epidemics” out from the definition of a “Material Adverse Event” (MAE). The buyers refused, though buyers’ counsel assuaged sellers’ counsel that the other broad carveouts (e.g., for an economic downturn) would provide protection if caused by the COVID-19 pandemic.

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Keynote Address by Commissioner Crenshaw on Minding the Data Gaps

Caroline Crenshaw is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent Keynote Address at the 8th Annual Conference on Financial Market Regulation (CFMR). The views expressed in the post are those of Commissioner Crenshaw, and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

Good afternoon. It’s great to be here at the annual Conference on Financial Market Regulation. I’ve enjoyed the discussions so far, and I am looking forward to hearing more. And I want to welcome Jessica Wachter, our new Chief Economist, to the SEC. I am very pleased that you are joining us, and I am looking forward to working with you.

Before I begin my remarks, I need to mention that the views that I express today are my own and do not necessarily reflect the views of the Commission or its staff.

To start, I want to note that I am thankful for the work that economists do inside and outside the SEC to help us understand the markets we regulate. It’s vital in terms of providing insight and analysis to help shape our regulatory approach. As those of you who have spoken to me may have noticed, I am not an economist. But I do have an economist’s love of good data and the data-driven rulemaking that can result.

Data are central to what we do at the SEC. Economists like you are on the front lines in terms of analyzing, interpreting, and using the data that we have, but without data, no one at the SEC would be able to do their jobs well.

Of course, when we collect data, especially data that contains personal or proprietary information, we need to protect and manage it carefully. Serious harm can come from the mismanagement of data. And we need to be cognizant of the impact on market participants of reporting and disclosure requirements.

However, serious harm can also come from regulating in the absence of relevant data. Without information about the markets that the SEC regulates, we may fail to address problems in our markets, or even make them worse. There is a cost if we fail to obtain the data we need to analyze and to understand the markets—and while the cost may be difficult to quantify, it is very real.

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