Author Archives: Harvard Law School Forum on Corporate Governance and Financial Regulation

Stock Option Grants and Fiduciary Duties in Ratification

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Thursday, July 5, 2018

The Delaware Court of Chancery issued a post-trial decision determining that a director who refused to cooperate in remediating flaws in the company’s capital structure breached his fiduciary duty of loyalty and owed damages to the corporation. The opinion is particularly important because of that holding. However, the opinion is equally important because of the […]

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Impact of SEC Guidance on Shareholder Proposals in the 2018 Proxy Season

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Wednesday, July 4, 2018

In the period leading up to the 2018 proxy season, the staff of the Division of Corporation Finance (Staff) of the Securities and Exchange Commission (SEC) published Staff Legal Bulletin No. 14I (SLB 14I), which provided new guidance concerning companies’ ability to exclude shareholder proposals from their proxy statements under the “ordinary business” or “relevance” […]

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Beware the Universal Proxy Card

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Tuesday, July 3, 2018

One of the most high-profile proxy contests to use a universal proxy card ended on Tuesday, with some last-minute drama thrown in. The board of SandRidge was engaged in a proxy contest with Icahn Capital. In May, it announced that it had expanded its board to seven members in order to include two Icahn nominees […]

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Enterprise Liability and the Organization of Production Across Countries

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Tuesday, July 3, 2018

Parent corporations often externalize the risk of tort liability through legally separate subsidiaries. For instance, utility companies in the US often create separate limited liability subsidiaries for each nuclear plant they own, arguably to protect the parent company from liabilities in case of accidents. Manville, a global leader in the manufacture of asbestos-containing products, separately […]

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Appointments Clause & SEC Administrative Judges

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Tuesday, July 3, 2018

On June 21, 2018, the Supreme Court resolved a circuit split concerning the constitutionality of the U.S. Securities and Exchange Commission’s (“SEC”) administrative law judges (“ALJs”). In Lucia v. Securities and Exchange Commission, — U.S. —, 2018 U.S. LEXIS 3836 (June 21, 2018), the Court held that SEC ALJs are “officers of the United States,” […]

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When Political Spending and Core Values Conflict

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, July 2, 2018

The Center for Political Accountability (CPA) released in mid-June a report entitled “Collision Course: The Risks Companies Face When Their Political Spending and Their Core Values Conflict, and How to Address Them.” It is the first report to analyze the heightened risk that political spending poses in today’s polarized political environment. The report examines how […]

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Creditor Control Rights and Board Independence

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, July 2, 2018

After a loan covenant violation, creditors can use the threat of accelerating loan payments and/or terminating credit agreements to extract concessions from borrowers in exchange for contract renegotiation. In practice, creditors rarely need to carry out such threats; most covenant violations lead to contract renegotiation. However, covenant violations enhance creditors’ bargaining position in renegotiations and […]

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Legal and Practical Limits on Indemnification and Advancement in Delaware Corporate Entities

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, July 2, 2018

Directors and officers of Delaware corporations generally expect that the company will provide them with indemnification and advancement in corporate lawsuits. Indemnification is where the company reimburses the director or officer for the attorneys’ fees and costs, and potentially judgments, incurred in connection with claims arising out of the director’s or officer’s service to the […]

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The Directors’ E&S Guidebook

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Sunday, July 1, 2018

Since inception, CCGG has focused on good governance, and has, over the years, become an authority on best practice governance guidance for boards of directors. In recent years, CCGG has observed growing shareholder emphasis on environmental and social (E&S) factors. Companies have come under greater pressure to demonstrate that the right frameworks, practices, and capabilities […]

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Passive Mutual Funds and ETFs: Performance and Comparison

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Saturday, June 30, 2018

Over 25% of the assets held by investment companies are held in the form of passive index funds and passive exchange traded funds. Furthermore, many indexes are followed by multiple passive funds. Empirical evidence shows that active funds underperform indexes by about 75 basis points. Given these facts, it is important for investors to understand […]

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