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

Remarks Before the SEC Historical Society

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Friday, June 5, 2015

I was delighted to be able to speak at your annual meeting. This yearly event of the SEC Historical Society is always the right occasion to underscore that those of us who currently have the privilege of serving at the SEC are part of a long and important tradition. The staff of this agency is […]

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Structural Corporate Degradation Due to Too-Big-To-Fail Finance

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Friday, June 5, 2015

In Structural Corporate Degradation Due to Too-Big-to-Fail Finance, I examined how and why financial conglomerates that have grown too large to be efficient find themselves free from the standard and internal and external corporate structural pressures push to resize the firm. The too-big-to-fail funding boost—from lower financing costs because lenders know that the government is […]

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Practice Points Arising From the El Paso Decision

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Thursday, June 4, 2015

The Delaware Chancery Court recently ruled, in In re El Paso Pipeline Partners, L.P. Derivative Litigation (Apr. 20, 2015), that the general partner of a master limited partnership (MLP) was liable to the MLP for the $171 million by which the court determined that the MLP had overpaid for liquefied natural gas (LNG) assets purchased […]

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Related Party Transactions: Policy Options and Real-world Challenges (with a Critique of the European Commission Proposal)

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Thursday, June 4, 2015

Transactions between a corporation and a “related party” (a director, the dominant shareholder, or an affiliate of theirs) are a common instrument for those in control to divert value from a corporation, especially in countries with concentrated ownership. While direct evidence of value diversion via related party transactions (RPTs) is obviously hard to obtain, widespread […]

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Capital Unbound: Remarks at the Cato Summit on Financial Regulation

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Wednesday, June 3, 2015

I am happy to be with you in New York City. When I have the opportunity to travel for meetings or to conferences such as this, I have fundamentally different conversations than when I am in Washington, D.C. In Washington, conversations frequently are scripted. Participants, who may be accompanied by trade association representatives and lawyers, […]

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Anticipating Proxy Put Litigation

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Tuesday, June 2, 2015

In recent months, a number of companies have received stockholder demands or faced stockholder litigation attacking “proxy put” provisions in credit agreements—that is, provisions that allow a lender to put outstanding debt to the corporate borrower for immediate payment upon a change in board control, creating potential financial risk for the company. These “proxy put” […]

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Bipartisan Group of Former SEC Commissioners Support the Rulemaking Petition for Transparency in Corporate Political Spending

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Tuesday, June 2, 2015

We are pleased to report that a bipartisan group of three distinguished former SEC Commissioners—former Chairman William Donaldson, former Chairman Arthur Levitt, and former Commissioner Bevis Longstreth—last week submitted to the SEC a letter urging the Commission to move forward with the rulemaking we proposed in our petition on corporate political spending. We are delighted […]

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Dealing with Activist Hedge Funds

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Tuesday, June 2, 2015

Today, regardless of industry, no company can consider itself immune from hedge fund activism. Indeed, no company is too large, too popular or too successful, and even companies that are respected industry leaders and have outperformed the market and peers have come under fire. Among the major companies that have been targeted are Amgen, Apple, […]

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The Trend Towards Board Term Limits is Based on Faulty Logic

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, June 1, 2015

In the business world, experience is generally considered to be positive. When it comes to corporate directors, however, tenure is increasingly viewed with suspicion. Yet the trend towards board term limits is based on faulty logic and threatens performance. The movement towards director term limits is global. In France, directors are not considered independent if […]

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“No Pay” Provisions: The Forgotten Middle Ground In The Fee-Shifting Battle

By Harvard Law School Forum on Corporate Governance and Financial Regulation | Published Monday, June 1, 2015

If it becomes law, Delaware State Senate Bill 75 will prohibit Delaware stock corporations from adopting provisions in their bylaws or certificates of incorporation that would shift legal fees to the losing party in stockholder litigation. [1] The debate over these so-called “loser pays” provisions and the proposed legislation prohibiting them has generated controversy nationwide. […]

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