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

The Art of Drafting Milestones for an Earn-Out

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Thursday, November 2, 2017

Former stockholders of SARcode Bioscience were recently denied a claim that they were entitled to be paid $425 million in milestone payments under a merger agreement. The decision provides an anecdotal lesson in drafting milestones and suggests that the more technically prescribed milestones may be more difficult to meet, even though the development of the […]

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Posted in Court Cases, Mergers & Acquisitions, Practitioner Publications, Securities Litigation & Enforcement | Tagged , , , , , , , | Comments Off on The Art of Drafting Milestones for an Earn-Out

An Empirical Study of Special Litigation Committees: Evidence of Management Bias and the Effect of Legal Standards

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Wednesday, November 1, 2017

Special litigation committees (SLCs) are controversial. They are supposed to dispassionately consider the merits of derivative litigation brought by shareholders against the company and some of its officers/directors, but they are composed of board members from the same company/board that is being sued. As a result, some shareholders and academics complain that these SLCs always […]

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House Bill 4015 and the Proposed Regulation of Proxy Advisors

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Wednesday, November 1, 2017

Regulation of proxy advisors is back on the U.S. legislative agenda. If enacted, the proposed rules could create delays to the delivery and threats to the independence of proxy research, with investors footing the bill. Introduced October 11, House Bill 4015 is mostly a resubmission of last year’s HR 5311—mostly. The proposed compliance regime is unchanged. Proxy […]

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Posted in Corporate Elections & Voting, Institutional Investors, Legislative & Regulatory Developments, Practitioner Publications, Securities Regulation | Tagged , , , , , , | Comments Off on House Bill 4015 and the Proposed Regulation of Proxy Advisors

EU Financial Market Benchmark Regulation and US Impact

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Wednesday, November 1, 2017

The new EU Benchmarks Regulation (BMR) was published in June 2016 and most rules will apply as of 1 January 2018. The BMR introduces new compliance requirements for benchmark administrators, contributors, and users, with regard to interest rate, foreign exchange, security, commodity, and other benchmarks used in financial transactions. The BMR was enacted in response […]

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Posted in Accounting & Disclosure, Banking & Financial Institutions, Derivatives, Financial Regulation, International Corporate Governance & Regulation, Legislative & Regulatory Developments, Practitioner Publications | Tagged , , , , , , , , , , , , , | 1 Comment

Insights from PwC’s 2017 Annual Corporate Directors Survey

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Tuesday, October 31, 2017

Against the backdrop of a new administration in Washington and growing social divisiveness, US public company directors are faced with great expectations from investors and the public. Perhaps now more than ever, public companies are being asked to take the lead in addressing some of society’s most difficult problems. From seeking action on climate change […]

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Posted in Boards of Directors, Corporate Elections & Voting, Institutional Investors, Practitioner Publications | Tagged , , , , , , , , , , , , | Comments Off on Insights from PwC’s 2017 Annual Corporate Directors Survey

Amending Corporate Charters and Bylaws

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Tuesday, October 31, 2017

Over the past decade or so, courts have been willing to apply the “contractarian” theory to the organizational documents of corporations: charters (certificates or articles of incorporation) and bylaws. The notion that the charters and bylaws can be thought of as “contracts”—between a corporation and its shareholders and among the shareholders—dates back to the seminal […]

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Creatures of Contract: A Half-Truth About LLCs

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Tuesday, October 31, 2017

“The half truths of one generation tend at times to perpetuate themselves in the law as the whole truth of another, when constant repetition brings it about that qualifications, taken once for granted, are disregarded or forgotten.”  Chief Justice Cardozo, then sitting on the New York Court of Appeals, wrote these eloquent words in the […]

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Is Say on Pay All About Pay? The Impact of Firm Performance

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, October 30, 2017

In Is Say on Pay All About Pay? The Impact of Firm Performance, we seek to answer the question whether “say on pay” votes really focus on executive compensation. As policymakers evaluate the decision whether to retain say on pay, it is worth examining more carefully the information that shareholders convey through their vote on executive […]

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Posted in Academic Research, Accounting & Disclosure, Empirical Research, Executive Compensation | Tagged , , , , , , , , , , , | Comments Off on Is Say on Pay All About Pay? The Impact of Firm Performance

2018 Benchmark Policy Consultation

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, October 30, 2017

US Policy—Director Elections—Non-Employee Director Compensation Background and Overview Non-employee director (NED) compensation has come into the corporate governance spotlight in recent years. ISS’ 2017 Board Practices Study indicated that median NED pay at S&P 1500 firms has steadily increased every year since 2012 and stood at approximately $211,000 in 2016. As director pay has risen, […]

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Posted in Accounting & Disclosure, Boards of Directors, Corporate Elections & Voting, Practitioner Publications | Tagged , , , , , , , , , , | Comments Off on 2018 Benchmark Policy Consultation

SEC Enforcement Against Initial Coin Offering

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, October 30, 2017

On September 29, 2017, the United States Securities and Exchange Commission (“SEC”) brought its first enforcement action arising from an Initial Coin Offering (“ICO”). This action is the latest sign that the SEC will be carefully scrutinizing the ICO market and transactions involving ICOs. What Is An ICO An ICO is a fundraising event, effected […]

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