Monthly Archives: September 2024

Disclosing and cooling-off: An analysis of insider trading rules

Liyan Yang is a Professor of Finance at the Rotman School of Management, University of Toronto. This post is based on an article in the Journal of Financial Economics by Professor Yang, Professor Jun Deng, Professor Huifeng Pan, and Professor Hongjun Yan.

Regulating insider trading has long been a controversial issue, balancing the need for fairness and market integrity in financial markets against insiders’ practical needs to trade for non-informational purposes such as rebalancing and liquidity needs. Central to this debate is the U.S. Securities and Exchange Commission’s (SEC) Rule 10b5-1, which provides a legal safe harbor for corporate insiders to trade their company’s stocks under predetermined trading plans before possessing material nonpublic information (MNPI).

Recent controversies, such as the sales by executives of COVID-19 vaccine developers shortly after announcing breakthroughs, have once again highlighted concerns about the potential misuse of Rule 10b5-1 (see the recent Wall Street Journal article “Pfizer CEO Joins Host of Executives at Covid-19 Vaccine Makers in Big Stock Sale”). As a response, researchers and regulators have been exploring ways to improve Rule 10b5-1. In February 2022, for example, the SEC has released a report discussing various amendments to regulate Rule 10b5-1 plans, some of which have been adopted in December 2022 (see the press release by the SEC). Two major rule changes stand out: mandate disclosure and cooling-off periods for insider trading under Rule 10b5-1. This post explores the implications of these rule amendments, drawing on insights from the recent article “Disclosing and Cooling-Off: An Analysis of Insider Trading Rules,” by Deng, Pan, Yan, and Yang (2024) published in the Journal of Financial Economics.

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Delaware Court of Chancery Finds Buyer Failed to Use Commercially Reasonable Efforts in Pharma Milestone Payment Case

James Jian Hu, John Kupiec and Rishi Zutshi are Partners at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary memorandum by Mr. Hu, Mr. Kupiec, Mr. Zutshi, Kimberly Spoerri, Benet O’Reilly, and Lucy Silver and is part of the Delaware law series; links to other posts in the series are available here.

Earnout provisions in acquisition agreements can be a useful tool in bridging the valuation gap by deferring portions of the purchase price until certain post-closing milestones are achieved, and they are particularly common in developmental-stage pharmaceutical transactions. Practitioners should take note of the September 5, 2024 opinion in Shareholder Representative Services LLC v. Alexion Pharmaceuticals, Inc., in which the Delaware Court of Chancery held a buyer, Alexion, liable for breach of contract both for its failure to use commercially reasonable efforts to achieve milestones for which future earnout payments may have become due and for its failure to pay an earned milestone payment to selling securityholders of Syntimmune, Inc. [1]

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Rewriting the Proxy Playbook: Trian Partners vs. Disney Case Study

Patrick J. McHugh is Co-Founder and Senior Managing Director and Bruce H. Goldfarb is the President and Chief Executive Officer at Okapi Partners. This post is based on a Okapi memorandum by Mr. McHugh, Mr. Goldfarb, and Lila Caminiti.

Trian Partners’ campaign to wrest two board seats from The Walt Disney Company already stands as a proxy contest for the ages and will rewrite the playbook for many contested meetings in the years to come. In addition to the significant outreach to the institutional investors (“usual institutional suspects,”) the campaign required substantially increased retail engagement due to Disney’s massive retail holder base. The process effectively involved two simultaneous campaigns: one campaign to sway hundreds of financial institutions, and another to energize the retail base of several million shareholders, which typically remains apathetic toward proxy voting. Examining the retail and institutional campaigns as two pieces of one whole provides important insights into this game-changer of a campaign, and teaches practitioners some valuable lessons.

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Is 2024 past peak ESG?

Anne Tucker is Professor of Law at Georgia State University, Dana Brakman Reiser is the Centennial Professor of Law at Brooklyn Law School, and Yusen Xia is the Anne and Michael D. Easterly Distinguished Professor of Business at Georgia State University.

Until recently, new ESG funds–both active and passive–seemingly flooded the U.S. (and global) markets to match investor demand. After years of ESG (and its alter-ego anti-ESG) being a part of the cultural zeitgeist, the trend has reversed. In the first half of 2024, the U.S. ESG market experienced net outflows of over $13 billion, on the heels of a $9 billion outflow in 2023.

We are undertaking an event study of the SEC’s Names Rule Amendment to observe the relationship, if any, between the SEC regulations and the cooling ESG market. While the data collection is incomplete because the rule won’t be fully effective until July 2026, we share our preliminary data below and the questions we hope to answer.

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SEC Dismisses In-House Proceedings Against Accountants Following Jarkesy

David Peavler and Evan Singer are Partners at Jones Day. This post is based on a Jones Day memorandum by Mr. Peavler, Mr. Singer, and Alexis Désiré.

In the wake of the U.S. Supreme Court’s recent Jarkesy decision, the U.S. Securities and Exchange Commission (“SEC”) dismissed two contested Rule 102(e) proceedings against accountants, suggesting that the agency believes these proceedings to be unconstitutional.

The Supreme Court recently held in SEC v. Jarkesy that the SEC’s in-house administrative proceedings violate the Seventh Amendment’s right to jury trial to the extent they adjudicate claims that are “legal in nature,” such as fraud charges and civil penalties. Jarkesy did not directly address, however, other kinds of enforcement actions the SEC historically adjudicates in-house, including proceedings under Rule 102(e) of the SEC Rules of Practice, which is the SEC’s primary tool for regulating the professionals appearing before it. Among other things, Rule 102(e) empowers the SEC to censure or bar professionals found to have engaged in “improper professional conduct,” which, for accountants, can include repeated violations of applicable professional standards. But Rule 102(e) proceedings can only be brought administratively.

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Are Fintechs Prepared for More Regulatory Scrutiny? Questions Fintech Boards Will Want To Ask

Mark Chorazak and Adam J. Cohen are Partners at Skadden, Arps, Slate, Meagher & Flom LLP. This post is based on their Skadden memorandum.

Key Points

  • The 2024 elections may usher in laws and regulations that impact fintechs, making it important for management to identify the areas that present the greatest challenges and opportunities.
  • As fintechs grow, they should consider whether they have all necessary licenses to operate and whether existing compliance and risk management infrastructure should be augmented to be “fit for purpose.”
  • Bank-fintech partnerships are under the regulatory microscope. Fintechs that rely on bank partners should evaluate how their business models could be affected if partnerships are terminated or no longer available on existing terms.
  • Reliance on a few counterparties and providers raises concentration risk and operational resiliency issues. Fintechs should prioritize the development and regular testing of contingency plans.

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Debt portability provides a lifeline for M&A

Binoy Dharia and Justin Wagstaff are Partners at White & Case LLP. This post is based on their White & Case memorandum.

Portability isn’t a typical feature of loan documents, but in a market where refinancing remains expensive and at times tricky, stakeholders are exploring how portability terms can help maintain M&A activity

Given that the debt and M&A markets can be challenging or a resetting of debt terms in the context of a refinancing can be expensive, investors, dealmakers and borrowers are looking to either take advantage of or build into the document debt portability to help get deals over the line or facilitate an M&A transaction. Portability allows companies to carry over or “port” existing debt facilities when company ownership changes. Without a portability feature, loan agreements typically force a company to repay existing debt when being sold to a new owner by including a “change of control” event of default.

Although portability has not been a common feature of loan documentation, during the past 12 months, private equity sponsors have increasingly looked to take advantage of portable debt facilities to support M&A transaction flow.

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Lying in Corporate Elections

Kai H. E. Liekefett and Derek Zaba are Partners at Sidley Austin LLP.

We live in polarising times. The current political and cultural environment is arguably the most heated and controversial in decades. One of the most prominent victims of our era: the truth. As Mark Twain famously said; “A lie can travel half way around the world while the truth is putting on its shoes.” Political election campaigns, in particular, are riddled with misleading statements, half-truths and outright lies. Our fragmented media ecosystem and the pervasive influence of social media make it easier than ever to distribute falsehoods to a vast audience near-instantaneously, compromising the integrity of political elections.

While not as extreme as with political discourse, similar issues have emerged in corporate elections. In recent years, it seems there have been more half-truths and outright lies in proxy contests than perhaps ever before. During proxy season, hardly a day goes by without a press release, shareholder letter or investor presentation containing questionable statements.

Public companies, as securities issuers, face heavy scrutiny of their disclosures under areas of federal securities law beyond the proxy rules. A company simply cannot make recklessly optimistic statements about its future prospects without exposing itself to liability.

Dissident shareholders like activist funds, on the other hand, generally escape similar levels of scrutiny. There are rules designed to protect the integrity of corporate elections the federal proxy rules under the Securities Exchange Act of 1934. Unfortunately, however, these proxy rules many of which were adopted decades ago and long before the advent of the digital age are increasingly under stress. In fact, many activists repeatedly violate the proxy rules, yet apparently face no repercussions.

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Weekly Roundup: September 6-12, 2024


More from:

This roundup contains a collection of the posts published on the Forum during the week of September 6-12, 2024

DExit Drivers: Is Delaware’s Dominance Threatened?


A Deeper Look at the Scope, Impact, and Risks of Company Political Spending


Audit Committee Practices Report


Chancery Finds Deal Price is the “Least Bad” Methodology to Appraise Fair Value of an Early-Stage Company—FairXchange


Relative TSR Awards: Challenges and Trade-Offs


Rewriting the Rules for Corporate Elections


SEC Continues Focus on Off-Channel Communications


Firm Performance Pay as Insurance against Promotion Risk


Recap of the 2024 Say on Pay Season


Recent Trends in Parallel Derivative Action Settlement Outcomes


Partisan bias in securities enforcement


Proxy Season Global Briefing: Board of Directors


Delaware Decision Provides Guidance for Drafting Earnout Provisions


Trade Agencies’ New Corporate Governance Toolkit


SEC Enforcement – Top Four Developments from July 2024


SEC Enforcement – Top Four Developments from July 2024

Adam AdertonElizabeth P. Gray, and A. Kristina Littman are Partners at Willkie Farr & Gallagher LLP. This post is based on a Willkie memorandum by Mr. Aderton, Ms. Gray, Ms. Littman, Michael J. Passalacqua, and Erik Holmvik.

In the last days of June and in July, the U.S. Securities and Exchange Commission (“SEC” or “Commission”) brought a number of new litigated actions across a broad swath of hot-button areas, including crypto and activist short selling. July also saw significant developments in the closely watched SolarWinds litigation, which has the potential to reshape the SEC’s approach to cybersecurity enforcement. In this alert, we briefly summarize the top four securities enforcement and litigation developments from the last month, including:

  • An action against an activist short seller related to his publishing of allegedly misleading research reports;
  • The dismissal of many of the SEC’s claims in the SolarWinds litigation;
  • The SEC’s first litigated action relating to the operation of a liquid staking protocol; and
  • A significant penalty imposed in an action brought against a bank and several of its senior officers for broad compliance and oversight failures.

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