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

Governance Challenges Arising From “Corporate Cooperation” Concepts

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Thursday, June 18, 2015

The current Department of Justice emphasis on “corporate cooperation” in the context of government investigations creates the potential for significant tension to arise between governance and executive leadership, which potential should be recognized and addressed proactively by the board. The DOJ Criminal Division has, with notable frequency this spring, sought to increase public transparency as […]

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Quality Data and the Power of Prevention

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Wednesday, June 17, 2015

As many of you know, I care passionately about the success of the Legal Entity Identifier (or LEI). With the financial crisis in the rear view mirror, it is sometimes easy to forget the forces that converged in 2007 and harmed both our financial markets and our economy. The events of 2008 are indelibly etched […]

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New DGCL Amendments Endorse Forum Selection Clauses and Prohibit Fee-Shifting

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Wednesday, June 17, 2015

As expected, the Delaware State Legislature approved amendments to the Delaware General Corporation Law (DGCL) that will (i) authorize forum selection clauses in the charters or bylaws of Delaware corporations specifying Delaware as an exclusive forum for litigating internal corporate claims, (ii) prohibit clauses designating only courts outside of Delaware as the exclusive forum for […]

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Audit Committees: 2015 Mid-Year Issues Update

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Tuesday, June 16, 2015

Board audit committee agendas continue to evolve as companies are faced with a rapidly-changing global business landscape, the proliferation of standards and regulations, increased stakeholder scrutiny, and a heightened enforcement environment. In this post, I summarize current issues of interest for audit committees. The Audit Committee And Oversight During her remarks at the Stanford Directors’ […]

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NY Court: RMBS Statute of Limitations Runs from Time of Securitization

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, June 15, 2015

In an important decision for financial institutions and investors in residential mortgage-backed securities (RMBS), the New York Court of Appeals unanimously ruled yesterday (June 11, 2015) that claims for breach of representations and warranties made in an RMBS securitization accrue when the representations and warranties are made, which typically occurs when the securitization closes. ACE […]

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Integration Clauses and Letters of Intent

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, June 15, 2015

Shareholders of an acquired company in a merger transaction sued the purchaser, arguing that certain provisions of a pre-merger letter of intent survived the merger. The Supreme Court of Delaware held that although the merger agreement provided for the survival of portions of the letter of intent, the integration clause of the merger agreement did […]

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Does Pending Delaware Legislation Cover Fee Shifting in Securities Cases?

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, June 15, 2015

The Delaware Senate by a 16-5 vote has passed Bill 75 banning fee-shifting provisions in charters and bylaws in stock corporations for “internal corporate claims”. The bill also contains a prohibition of bylaws or charter provisions that designate a forum other than Delaware as the exclusive forum. That provision would prevent corporations from designating forums […]

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New Investor Guide on Engaging on ESG Issues

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Sunday, June 14, 2015

On May 28, 2015, BlackRock and Ceres released a guide for investors on engaging with public companies, asset managers and policymakers on environmental, social and governance (“ESG”) sustainability matters. The guide, titled “21st Century Engagement: Investor Strategies for Incorporating ESG Considerations into Corporate Interactions,” includes sections written by BlackRock and Ceres as well as AFL-CIO, […]

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Resolution: Deposit Insurance—Burden Shifts to Bank

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Saturday, June 13, 2015

On April 21st, the FDIC proposed new requirements for its largest supervised banks (37 institutions) to improve the record keeping of their deposit accounts. Issued via an Advanced Notice of Proposed Rulemaking (“ANPR”), the proposal shifts the obligation of calculating FDIC deposit insurance payouts from the FDIC to the banks. The agency has for some […]

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Failing to Advance Diversity and Inclusion

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Thursday, June 11, 2015

Today [June 9, 2015], the Securities and Exchange Commission failed to take meaningful steps to advance diversity and inclusion in the financial services industry, as required by Section 342 of the Dodd-Frank Act. Accordingly, I have no choice but to dissent from the Final Interagency Policy Statement Establishing Joint Standards for Assessing the Diversity Policies […]

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