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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 Christine Davine
- Renata J. Ferrari
- Andrew Freedman
- Ray Garcia
- Byron Georgiou
- Joseph Hall
- Jason M. Halper William P. Mills
- David Millstone
- Theodore Mirvis
- Philip Richter
- Elina Tetelbaum
- Sebastian Tiller
- Marc Trevino Jonathan Watkins
- Steven J. Williams
HLS Faculty & Senior Fellows
Author Archives: Harvard Law School Forum on Corporate Governance and Financial Regulation
Interest Rate Risk and Appraisal Risk in M&A Transactions
In recent months, there have been a number of important developments relating to stockholder appraisal rights in Delaware. Appraisal rights are generally available to dissenting stockholders in all-cash or cash/stock mergers and entitle the dissenting stockholders to an appraisal of the fair value of their stock by the Delaware Court of Chancery. Stockholders seeking appraisal, […]
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Posted in Court Cases, Mergers & Acquisitions, Practitioner Publications
Tagged Acquisition agreements, Appraisal rights, Deal protection, Delaware cases, Delaware law, DGCL Section 262, Fair values, Go-shop, In re Appraisal of Dell, In re Appraisal of DFC Global, Leveraged acquisitions, Merger litigation, Mergers & acquisitions, Shareholder suits
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The New Look of Deal Protection
It is well-known in transactional practice that the magnitude of termination fees has gone up over the past thirty years. What used to be 1-2% of deal value in the 1980s increased to 2-3% by the 1990s and 3-4% by the 2000s. This trend cannot be readily explained by changes in M&A fundamentals: as a […]
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Posted in Academic Research, Corporate Elections & Voting, Empirical Research, HLS Research, Mergers & Acquisitions
Tagged Acquisition agreements, Bidders, Deal protection, Delaware articles, Delaware cases, Delaware law, Fairness review, In re Revlon, Jurisdiction, Mergers & acquisitions, Target firms, Termination fees, Unocal standard
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The SEC and Whistleblowers: A Spotlight on Severance Agreements
In the space of one week, the SEC brought two enforcement actions that reiterate its focus on protecting the rights of whistleblowers. In each case, companies attempted to remove the financial incentives for departing employees to submit whistleblower reports to the SEC. The result instead was a pair of administrative orders (on a neither admit […]
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Posted in Accounting & Disclosure, Practitioner Publications, Securities Litigation & Enforcement, Securities Regulation
Tagged Confidentiality, Disclosure, Employees, Exchange Act, Incentives, Rule 21F-17, SEC, SEC enforcement, SEC investigations, Securities enforcement, Securities regulation, Severance, Whistleblowers
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SEC Denial of H&R Block’s Request to Exclude Proxy Access Proposal
On July 21, 2016, the Staff of the SEC’s Division of Corporation Finance denied H&R Block Inc.’s request to exclude a shareholder proposal to amend the company’s existing proxy access bylaw. Like many companies earlier this year who adopted proxy access bylaws, H&R Block had sought to exclude the proposal under Securities and Exchange Act Rule […]
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Posted in Corporate Elections & Voting, Practitioner Publications, Securities Litigation & Enforcement, Securities Regulation
Tagged Charter & bylaws, Director nominations, James McRitchie, No-action letters, Ownership, Proxy access, Rule 14a-8, SEC, Shareholder nominations, Shareholder proposals, Shareholder rights, Shareholder voting
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The Rise of the Independent Director: A Historical and Comparative Perspective
My paper provides a historical analysis of the rise of the independent director and the related model of a “monitoring board of directors” in the US and the UK. These two jurisdictions are commonly credited with creating the concept of the independent director and exporting it around the world. As of 2016, most Member States of […]
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Posted in Academic Research, Accounting & Disclosure, Boards of Directors, Comparative Corporate Governance & Regulation, Empirical Research, International Corporate Governance & Regulation
Tagged Agency model, Board dynamics, Board independence, Boards of Directors, Director qualifications, Entrenchment, EU, Europe, Germany, International governance, Management, Oversight, UK
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Independent Chair Proposals
During the 2016 proxy season, 47 shareholder proposals calling for independent board chairs reached a vote at Russell 3000 companies, all of which failed. This development reflects a decline from last year’s proxy season during which 62 independent chair proposals reached a shareholder vote and two passed. Interestingly, the increased support of Institutional Shareholder Services, […]
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Posted in Boards of Directors, Corporate Elections & Voting, Institutional Investors, Practitioner Publications
Tagged Board independence, Boards of Directors, Glass Lewis, Institutional Investors, ISS, No-action letters, Non-executive chairman, Proxy advisors, Proxy season, Rule 14a-8, SEC, Shareholder proposals, Shareholder voting
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Opting Out of the Fiduciary Duty of Loyalty: Corporate Opportunity Waivers within Public Companies
For nearly two centuries, a cornerstone of Anglo-American corporate law has been the fiduciary duty of loyalty, the most demanding and litigated fiduciary obligation imposed on corporate managers. The duty—which regulates financial conflicts of interest and requires managers to subordinate their own interests to the corporation’s—represents a key policy lever to address the most pernicious […]
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Posted in Academic Research, Boards of Directors, Empirical Research, Securities Regulation
Tagged Agency costs, Agency model, Boards of Directors, Conflicts of interest, Delaware articles, Delaware law, Duty of loyalty, Fiduciary duties, Management, Market efficiency, Securities regulation, Shareholder value, State law
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The Real Effects of Uncertainty on Merger Activity
Imagine you are in the market for a new car. You find exactly the car you want, and agree to the price and financing conditions, but there is a twist. In this alternate universe, you can’t actually pick up your car for several months, and during this time the actual value of “your” car is […]
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Posted in Academic Research, Empirical Research, Mergers & Acquisitions
Tagged Acquisitions, Bidders, Deal certainty, Deal protection, Decision-making, Firm valuation, Information environment, Merger waves, Mergers & acquisitions, Risk, Target firms
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The Impact of the New Restructuring Law on Puerto Rico Creditors
On June 30, 2016, the United States Senate passed the “Puerto Rico Oversight, Management and Economic Stability Act” (“PROMESA”) and it was quickly signed into law by President Obama. PROMESA enables the Commonwealth of Puerto Rico and its public corporations and other instrumentalities in financial distress to restructure their debt. The goal of PROMESA is […]
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Posted in Bankruptcy & Financial Distress, Financial Regulation, Legislative & Regulatory Developments, Practitioner Publications
Tagged Bankruptcy, Bondholders, Bonds, Covenants, Debt, Debt contracts, Debt securities, Debtor-creditor law, Financial regulation, Jurisdiction, Municipal securities, PROMESA, Puerto Rico, Restructurings
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