Yearly Archives: 2025

Common Ownership Around the World

Miguel Antón is a Professor in the Financial Management Department at IESE Business School. This post is based on a recent paper by Professor Antón, Florian Ederer, the Allen and Kelli Questrom Professor in Markets, Public Policy & Law at Boston University, Mireia Giné, Professor and Head of the Financial Management Department at IESE Business School, and Guillermo Ramirez-Chiang, a PhD candidate in the Finance Department at IESE Business School. 

Common ownership describes a situation whereby the same investors hold significant stakes in multiple competing firms. Over the last few decades it has become a defining feature of modern capital markets. Its growth has sparked an important debate among academics, regulators, and policymakers about its potential implications for competition and corporate governance.

In our new working paper “Common Ownership Around the World,” we provide the first systematic, global analysis of this trend. Using a novel dataset covering 49 countries and more than 60,000 publicly listed firms from 2005 to 2019, we document the global rise in common ownership and explore its key drivers. While common ownership is increasing across the globe, the United States remains a clear outlier in both the level and concentration of such ownership.

A Global Trend with U.S. Leadership

Our study shows that common ownership is now a global phenomenon. In the median country, the average measure of overlapping ownership (κ) more than doubled between 2005 and 2019. However, the U.S. stands far above all others: its average common ownership intensity is nearly twice as high as the next highest country. This U.S. dominance is not only due to higher institutional investment but also to greater concentration among asset managers. Notably, this pattern persists even when adjusting for firm size and industry, indicating that the U.S. is structurally distinct in its ownership architecture.

The increase in common ownership is especially pronounced among the largest firms in every country. Across regions, firms in the top tercile of the market capitalization distribution have approximately three times the level of common ownership of the median firm. This concentration means that common ownership is most intense precisely where market power and competitive dynamics are likely most consequential. In fact, in the U.S., common ownership levels among top-tercile firms are on par with those observed among S&P 500 constituents, suggesting that the trend is particularly pronounced at the upper end of the firm size distribution.

The Role of the Big Three

One of the most striking findings is the central role played by the “Big Three” asset managers—BlackRock, Vanguard, and State Street. In the U.S., these firms have become the largest shareholders in nearly 40% of all public companies, up from just 3% in 2005. Their rise accounts for a significant share of the growth in common ownership, both domestically and globally. This rise reflects both their growing assets under management and the increased popularity of passive index investing. READ MORE »

California Supreme Court Saves Delaware Forum Selection Clauses in Corporate Certificates of Incorporation

Shannon Eagan and Craig TenBroeck are Partners at Cooley LLP. This post is based on a Cooley memorandum by Ms. Eagan, Mr. TenBroeck, Tiffany Le, and Samantha Kirby.

On July 21, 2025, the California Supreme Court issued a significant decision clarifying that a forum selection clause in a company’s certificate of incorporation is not unenforceable simply because the selected forum (here, the Delaware Court of Chancery) does not provide the right to a jury trial.

In EpicentRx, Inc. v. Superior Court, the California Supreme Court reversed the Court of Appeal, holding that the mere unavailability of a jury trial in the chosen forum does not, by itself, render forum selection clauses unenforceable under California public policy. The Supreme Court explained that while “courts may properly consider whether enforcement of a forum selection clause would violate public policy,” “California’s strong public policy protects the jury trial right in California courts, not elsewhere.” Having so held, the Supreme Court remanded the matter for the court below to consider, in the first instance, “plaintiff’s other arguments against enforcement of the forum selection clause, such as the manner of its adoption as part of the corporation’s certificate of incorporation and bylaws.”

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Corporate Support for DEI Continues Among Investors and Companies

Timothy Smith is the Senior Policy Advisor at the Interfaith Center on Corporate Responsibility (ICCR). This post is based on an ICCR memorandum by Mr. Smith and Max Homans.

During this proxy season, companies faced a wave of shareholder resolutions attacking diversity, equity, and inclusion (DEI) programs and calling for their eradication. This campaign expanded last year’s anti-DEI attacks, tracked in our 2024 paper, Championing Diversity in Corporations, [1] which also provided quotes from numerous companies strongly defending their diversity programs. This year’s anti-DEI resolutions built upon growing attacks on DEI by various government agencies and right-wing critics, who argued that company diversity programs were on the way out. Interestingly, these anti-DEI resolutions conveyed the exact opposite message, demonstrating that investors and companies alike believe that diversity has a positive impact on employees and long-term shareholder value.

In fact, in this proxy season approximately 98% of the shares voted to maintain current corporate diversity, equity, and inclusion programs. 32 companies (listed in the appendix) including Disney, Costco, Visa, Apple, Deere, Boeing, Goldman Sachs, Levi’s, AMEX, Coca-Cola, Berkshire Hathaway, Bristol Myers, and Gilead Science saw near-unanimous votes, averaging a mere 2% shareholder vote supporting these resolutions, sending a clear message to the boards that shareholders support the business case for non-discrimination in employment and a diverse workforce. [2]

Many of these companies under attack remained publicly committed to their longstanding DEI programs. Corporations like Costco, JPMorganChase, Delta Air Lines, American Airlines, Southwest Airlines, and Apple continue to view diversity as a cornerstone of their workforce strategies, refusing to back down despite mounting pressure from conservatives and the White House. [3]

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Ahead of the Curve: Factoring the Cost of Carbon into Long-Term Decision-Making

Allen He is a Director, Joel Paula is a Managing Director, and Jessica Pollock is a Senior Research Associate at FCLTGlobal. This post is based on their FCLTGlobal memorandum.

INTRODUCTION

Decarbonization is a major investment theme for long-term investors, given the worldwide shift already under way in energy infrastructure, transportation, agriculture, business models, and the built environment. Annual climate finance surpassed $1 trillion in 2021 and has been climbing since.[1] Renewable energy generation will meet 35 percent of global demand by 2025; that mix was just 19.5 percent in 2010.[2] Investment flows contrast with the global cost of climate change damages, which could range between $1.7 trillion and $3.1 trillion per year by 2050.[3]

Climate-related risks will have far reaching implications for the long-term investment portfolios of sovereign wealth funds, pension funds, insurance companies, and endowments. A recent survey of 200 asset owners found that 56 percent plan to increase climate investment over the next 1-3 years, and 46 percent said that navigating the transition is their most important investment priority over the same period.[4]

Despite momentum, progress feels incremental. Today’s volatile political and geopolitical context has upended climate and industrial policy, creating significant uncertainty for long-term investors. A reshuffling of global trade and supply chains also means a reshuffling of where emissions occur. To be clear, the climate transition was never assumed to progress in a linear fashion. At times, decarbonization pathways may appear to stagnate or even move in the wrong direction. While various regions are at different points in implementing climate policies, greater policy uncertainty has the effect of widening potential outcomes.

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Retail Access to Private Markets

Ben Bates is a Research Fellow at the Harvard Law School Program on Corporate Governance. This post is based on his recent paper.

The U.S. securities laws divide investment opportunities between public markets, in which anyone can invest, and private markets, which are open only to the wealthy. Today, many of the buzziest investment opportunities—including everything from private equity and private credit funds to direct investments in hot tech startups like OpenAI and SpaceX—are available only in the private markets.

As the private markets have grown, retail investors have become increasingly interested in gaining access. At the same time, politicians, policymakers, and investment managers have become more and more willing to find ways to give them access. Just last Thursday, President Trump issued an executive order aimed at making it easier for individuals to invest in “alternative assets,” in their 401(k)s. The SEC has also been evaluating ways to expand private market access.

In a new paper, I study investment funds that offer retail investors access to private investments. These “retail private funds” have multiplied over the past 5-10 years, and they are poised to become an increasingly important part of the investing landscape. Retail private funds are typically structured as registered closed-end funds or business development companies (BDCs). Their shares often do not trade on a stock exchange, and they provide liquidity to investors through periodic share repurchases. Most retail private funds today offer access to private credit investments, though a smaller number offer access to private equity, infrastructure, and other investment types. Retail private funds also generally have much higher fees than traditional mutual funds and ETFs.

Using data from the SEC filings of funds structured as BDCs, I study the funds’ performance and highlight two potential issues for unwary retail investors. First, I show that BDCs’ reported returns—which are based on their estimated net assets values (NAVs)—exhibit exceptionally low volatility, especially given the nature of the funds’ underlying investments and the funds’ use of leverage. These reported returns may lead retail investors to underestimate the funds’ risks. Second, I show that non-traded BDCs sold to less wealthy individuals have lower returns on average than private BDCs sold only to wealthier individuals. This finding raises the concern that individuals with modest means who participate in private markets may predominantly be sold products with below-average performance.

Concern #1: Retail Private Funds Are Riskier Than They Appear

In the paper, I show that, from 2015 to 2024, BDCs reported higher returns than (or at least similar returns to) a portfolio of publicly traded high yield bonds, but with lower volatility. This result is striking because BDCs predominantly invest in high-yield loans to small and medium-sized private companies and use substantial leverage. Interestingly, among BDCs that have publicly traded shares, the funds’ actual, trading returns are more than 4x more volatile than their reported returns. READ MORE »

Weekly Roundup: August 8-14, 2025


More from:

This roundup contains a collection of the posts published on the Forum during the week of August 8-14, 2025


IPOs Aren’t Dead, They’re Just Napping


ESG Shareholder Resolutions: SEC Swings the Axe but the “Fail Tail” Survives


Recent Developments for Directors


Response to Klausner and Ohlrogge


The Power and Profit of ESOPs


Securities Law Update


Governance in Global Operations: Legal and Board Risk Across Borders


SEC Responds to Eighth Circuit, Asking Eighth Circuit to Rule on Climate Disclosure Litigation


How Processing Costs Drive Market Efficiency: Evidence from U.S.-Israel Dual-Listed Securities


Granting Stock Options: How Do Accounting Values Compare Against “In-the-Money” Values?


Structuring Share Repurchases Under Rules 10b-18 and 10b5-1


Warm Authority: The Tightrope Women CEOs Walk


Warm Authority: The Tightrope Women CEOs Walk

Margot McShane and Hetty Pye are Co-Leaders of the firm’s Board & CEO Advisory Partners at Russell Reynolds Associates. This post is based on a Russell Reynolds memorandum by Ms. McShane, Ms. Pye, Dean Stamoulis, Shannon Knott, and Natasha Treshow.

CEOs today face an increasingly complex operating environment: they are tasked with navigating volatile global trade policies, geopolitical tensions, and the rise of AI. The role of CEO has become more challenging—and important—than ever. Organizations need great CEOs who are equipped to lead in unpredictable times. For women CEOs though, they face an additional, invisible challenge that their male counterparts rarely experience—the leadership double bind.

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Structuring Share Repurchases Under Rules 10b-18 and 10b5-1

Andrew J. Pitts, C. Daniel Haaren, Steven Seltzer are Partners at Cravath, Swaine & Moore LLP. This post is based on their Cravath memorandum.

Structuring Share Repurchases: Rule 10b-18 and Rule 10b5-1 Applied to Open-Market Share Repurchase Programs, Accelerated Share Repurchase Transactions and Enhanced Open-Market Share Repurchase Transactions

Share repurchase (or share buyback) programs are a tool used by many public companies to return capital to shareholders. Once a public company has resolved to initiate share repurchases, the focus turns toward structuring the share repurchase program. There are many types of transactions available to execute share repurchases. Transaction structures range from relatively simple open-market share repurchases (“OMR”) to more complex accelerated share repurchase transactions (“ASR”), with enhanced open-market share repurchases (“eOMR”) serving as a hybrid in between. From a legal perspective, it is important to determine whether the desired share repurchase transaction may take advantage of the legal protections offered by the Rule 10b-18 safe harbor and Rule 10b5-1.

To build a framework to understand share repurchase alternatives, first let’s examine how Rule 10b-18 and Rule 10b5-1 operate. Next, let’s examine how OMR, ASR and eOMR transactions work and highlight certain notable features of these transactions. Then, let’s analyze the extent to which Rule 10b-18 and Rule 10b5-1 may apply to each of these types of transactions.

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Granting Stock Options: How Do Accounting Values Compare Against “In-the-Money” Values?

Ira Kay is a Managing Partner, Ed Sim is a Consultant, and Michael Bentley is a Consultant at Pay Governance LLC. This post is based on their Pay Governance memorandum.

Introduction

Our research shows that the grant date accounting value (e.g., Black-Scholes value) is significantly lower than the future in-the-money value of most stock options. This is a unique topic of research in the executive compensation field.

Stock option accounting rules require companies to determine the fair value of stock-based compensation awards at the date of grant, which are significant and irreversible. This requires an option-pricing model, such as the Black-Scholes-Merton (Black-Scholes) model or a lattice (Binomial) model, that factors the exercise price, stock price volatility, expected term, dividend yield, and risk-free interest rate at the time of grant to estimate an economic value of the award.

However, this accounting value differs significantly from the in-the-money value of options, which is zero at the time of grant. This can be confusing to Compensation Committees, HR leaders, and recipients, as the grants are set and disclosed in the proxy’s Summary Compensation Table at their accounting value. In some cases, option awards expire without ever being in-the-money. However, in most cases, option grants are exercised after vesting at a higher stock price, which can yield greater in-the-money value than the accounting value.

This Viewpoint takes a deeper dive into this differential of accounting versus in-the-money values.

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How Processing Costs Drive Market Efficiency: Evidence from U.S.-Israel Dual-Listed Securities

Joshua Mitts is a David J. Greenwald Professor of Law at Columbia University, and Moran Ofir is a Professor of Law and Finance at the University of Haifa. The post is based on their recent paper.

For decades, the efficient market hypothesis has dominated legal and economic thinking about securities markets. Courts routinely rely on the “fraud-on-the-market” doctrine, which presumes that stock prices reflect all publicly available information – a presumption that underpins most securities class actions today. But what if this foundational assumption oversimplifies how markets actually process information?

Our new research, examining over 2,100 trading halts across 96 dual-listed U.S.-Israel securities from 2007-2024, reveals that the costs of processing information play a crucial role in market efficiency that has been largely overlooked by both academics and regulators. The findings challenge the traditional view that public information is automatically and costlessly incorporated into stock prices, with significant implications for securities law, market regulation, and corporate disclosure practices.

The Natural Experiment

Our study exploits a unique institutional setting that creates what amounts to a natural experiment in information processing costs. Under Israeli securities law, companies dual-listed on both U.S. exchanges and the Tel Aviv Stock Exchange (TASE) must halt trading in Tel Aviv for 30 minutes when releasing material information to the public. Crucially, no corresponding halt occurs on U.S. exchanges, meaning the same security continues trading in New York while being halted in Tel Aviv.

As a result of this differential trading halt, Israeli traders, who typically face lower processing costs for these securities due to language familiarity, local information advantages, and specialized knowledge of Israeli companies, are temporarily prevented from trading. Meanwhile, U.S. traders continue to trade, but face higher processing costs when digesting Hebrew-language disclosures and Israel-specific information.

The result is a temporary but forced increase in processing costs in the market for the security during the 30-minute halt period. If processing costs matter for market efficiency, we should observe deteriorating market quality during these periods. READ MORE »

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