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Program on Corporate Governance Advisory Board
- Peter Atkins
- David Bell
- Kerry E. Berchem
- Richard Brand
- Daniel Burch
- Paul Choi
- Jesse Cohn
- Arthur B. Crozier
- Renata J. Ferrari
- Andrew Freedman
- Ray Garcia
- Joseph Hall
- Jason M. Halper William P. Mills
- David Millstone
- Theodore Mirvis
- Philip Richter
- Elina Tetelbaum
- Sebastian Tiller
- Marc Trevino
- Steven J. Williams
Author Archives: Harvard Law School Forum on Corporate Governance and Financial Regulation
Practical Implications of Proposed Testing the Waters for All Issuers under U.S. Securities Law
On February 19, 2019, the Securities and Exchange Commission (SEC) approved a proposed rule that, if enacted, would permit all issuers to use “test-the-waters” communications (TTW communications). Currently, only “emerging growth companies”—a defined term generally describing most initial public offering (IPO) issuers and other new entrants to the SEC reporting system—are permitted to engage in […]
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Posted in Legislative & Regulatory Developments, Practitioner Publications, Securities Regulation
Tagged Accredited investors, Capital formation, IPOs, JOBS Act, Regulation FD, Retail investors, SEC, Securities regulation, Small firms, Solicitation
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Longer-Term Restricted Share Plans in Executive Pay
This post examines “longer-term” restricted share plans that, in some cases, have replaced performance share plans in executive pay programs. It focuses on such a replacement made by a U.K. company in 2018. Restricted shares have been a form of long-term incentive award since the 1950s. They generally provide vesting over a period of several […]
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Posted in Accounting & Disclosure, Executive Compensation, International Corporate Governance & Regulation, Practitioner Publications
Tagged Clawbacks, Executive Compensation, Executive performance, Firm performance, Incentives, Internal Revenue Code, International governance, Pay for performance, Section 162(m), Tax Cuts and Jobs Act, UK
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Board 3.0: An Introduction
In Board 3.0: An Introduction, we sketch the case for a new board structure as an option for public company boards. The current board model—Board 2.0 in our terms—had its genesis in Mel Eisenberg’s iconic 1976 book. Eisenberg framed the ideal board as one dominated by part-time independent directors charged with monitoring management’s performance. This […]
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Posted in Academic Research, Boards of Directors, Comparative Corporate Governance & Regulation, Institutional Investors, Private Equity
Tagged Board monitoring, Board oversight, Boards of Directors, Dual-class stock, Engagement, Hedge funds, Information asymmetries, Information environment, Institutional Investors, Private equity, Private firms
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Whistleblower Award to Company Outsider
On March 4, 2019, the Commodity Futures Trading Commission (“CFTC”) announced a whistleblower award of over $2 million to an individual—unaffiliated with the company the CFTC charged—for providing expert analysis in conjunction with a related action instituted by another federal regulator. While the Securities and Exchange Commission, which possesses a similar whistleblower award regime, has previously issued […]
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Posted in Banking & Financial Institutions, Practitioner Publications, Securities Regulation
Tagged CFTC, Commodities Exchange Act, Compliance & ethics, Dodd-Frank Act, Financial institutions, Financial technology, FINRA, SEC, Securities regulation, Whistleblowers
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2018 Year in Review—Securities Litigation Against Technology Companies
In 2018, Plaintiffs filed 403 new federal securities class actions, which was a 2% decrease from 2017 but still nearly double the average of annual filings from 1997-2017. The 2018 filings included more than 180 cases challenging disclosures made in connection with mergers and acquisitions (M&A filings) and the fifth-highest number of “core” filings (excluding […]
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Posted in Accounting & Disclosure, Court Cases, Mergers & Acquisitions, Practitioner Publications, Securities Litigation & Enforcement, Securities Regulation
Tagged Blockchain, California, Class actions, Cryptocurrency, Disclosure, Howey test, ICOs, Liability standards, Merger litigation, Mergers & acquisitions, SEC, Section 10(b), Securities fraud, Securities litigation, Securities regulation, Shareholder suits, State law, Tech companies, U.S. federal courts
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Will Aruba Finish Off Appraisal Arbitrage and End Windfalls for Deal Dissenters? We Hope So
The corporate law world has been abuzz of late about the commendable effort by Delaware’s courts to scale back “appraisal arbitrage”: a trading strategy predicated on deal dissenters receiving via appraisal litigation more for their shares than the deal prices from which they dissent. For years, parties engaging in appraisal arbitrage enjoyed the opportunity to […]
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Posted in Academic Research, Court Cases, Mergers & Acquisitions, Securities Litigation & Enforcement
Tagged Appraisal rights, Arbitrage, Delaware cases, Delaware law, Fair values, Fairness review, Firm valuation, Market efficiency, Merger litigation, Mergers & acquisitions
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PE Professionals on the Boards of their Portfolio Companies
Private equity deal professionals frequently serve on the boards of the portfolio companies in which their fund invests. And many of those portfolio companies are incorporated under Delaware law. The role of the private equity professional as a board member of a Delaware corporation is fundamentally different than the role of the private equity professional […]
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Posted in Boards of Directors, Court Cases, Practitioner Publications, Private Equity
Tagged Boards of Directors, Books and records, Delaware cases, Delaware law, DGCL, DGCL Section 220, Discovery, Private equity
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CFTC Enforcement Announcement: Commodity Exchange Act Violations Involving FCPA
On March 6, 2019, at the American Bar Association’s (ABA) National Institute on White Collar Crime, Commodity Futures Trading Commission (CFTC) Division of Enforcement Director James McDonald announced a new Enforcement Advisory regarding guidance on self-reporting violations of the Commodity Exchange Act (CEA) carried out through foreign corrupt practices. At the same time, he indicated […]
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Posted in Accounting & Disclosure, International Corporate Governance & Regulation, Practitioner Publications, Securities Litigation & Enforcement
Tagged Anti-corruption, CFTC, Commodities, Commodities Exchange Act, Dodd-Frank Act, DOJ, FCPA, International governance, Misconduct, SEC, Securities enforcement
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General Statements of Regulatory Compliance and Securities Fraud Claims
It has been a not infrequent occurrence over the past years that, after a company announces bad news or corporate mismanagement, securities class actions have been filed challenging general statements made by the company about its compliance with regulatory requirements or its own ethics policies and procedures. [On March 5, 2019], in Singh v. Cigna […]
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Posted in Accounting & Disclosure, Practitioner Publications, Securities Litigation & Enforcement, Securities Regulation
Tagged Class actions, Compliance & ethics, Compliance and disclosure interpretation, Disclosure, Form 10-K, Form 8-K, Section 10(b), Securities litigation, Securities regulation, U.S. federal courts
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New Developments in Shareholders’ Gender Pay Gap Proposals
Investors’ growing interest in the median gender pay gap (i.e., the wage difference between the median male employee and the median female employee) is the latest expression of a more granular approach to environmental, social and governance (ESG) investing. They are not only more focused on granularity, building on an initial call for public companies […]
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