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

Supreme Court: Fiduciaries Must Monitor Offered 401(k) Investment Alternatives

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, June 22, 2015

On May 18, 2015, the U.S. Supreme Court unanimously held in Tibble v. Edison International that fiduciaries of 401(k) retirement plans have a continuing duty under the Employee Retirement Income Security Act of 1974 (ERISA) to monitor an investment alternative offered under a 401(k) plan after it is selected. In monitoring an investment alternative, the […]

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SEC Re-Proposes Rules on Arranging, Negotiating or Executing Security-Based Swaps

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Sunday, June 21, 2015

On May 13, 2015, the SEC published proposed amendments and re-proposed rules on the application of certain Title VII requirements to cross-border security-based swap activities of non-U.S. persons based on U.S. conduct. The proposed rules would modify numerous prior SEC proposals and final rules, including the May 2013 proposed rules on the cross-border application of […]

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Regulation A+ Takes Effect

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Saturday, June 20, 2015

On June 19, 2015, the Securities and Exchange Commission’s (SEC) recently adopted rule amendments to Regulation A under the Securities Act of 1933 (the Securities Act)—colloquially known as “Regulation A+”—took effect. Regulation A is intended to ease the burden of Securities Act registration for small public offerings. These rule amendments, among other things, increase the […]

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Volcker Rule: Agencies Release New Guidance

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Friday, June 19, 2015

[June 12, 2015], the staffs of the Board of Governors of the Federal Reserve System (the “Federal Reserve”), the Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Securities and Exchange Commission and the Commodity Futures Trading Commission (collectively, the “Agencies”) provided two important additions to their existing list of Frequently […]

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Shareholder Activism and Executive Compensation

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

In today’s environment in which all public companies—no matter their size, industry, or performance—are potential targets of shareholder activists, companies should review their compensation programs with an eye toward making sure that the programs take into account the potential effects of the current wave of shareholder activism. In this regard, we have provided below some […]

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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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