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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
- Renata J. Ferrari
- Andrew Freedman
- Ray Garcia
- Joseph Hall
- Jason M. Halper William P. Mills
- David Millstone
- Theodore Mirvis
- Philip Richter
- Elina Tetelbaum
- Sebastian Tiller
- Marc Trevino
- Steven J. Williams
Author Archives: Harvard Law School Forum on Corporate Governance and Financial Regulation
New ISDA Protocol Limits Buy-Side Remedies in Financial Institution Failure
The ISDA 2014 Resolution Stay Protocol, published on November 12, 2014, by the International Swaps and Derivatives Association, Inc. (ISDA), [1] represents a significant shift in the terms of the over-the-counter derivatives market. It will require adhering parties to relinquish termination rights that have long been part of bankruptcy “safe harbors” for derivatives contracts under […]
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Posted in Banking & Financial Institutions, Bankruptcy & Financial Distress, Derivatives, Financial Regulation, International Corporate Governance & Regulation, Practitioner Publications
Tagged Bankruptcy, Bankruptcy Code, Cross-border transactions, Defaults, Derivatives, Financial institutions, International governance, ISDA, OTC derivatives, Recovery & resolution plans, Safe harbor
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Basel Committee Adopts Net Stable Funding Ratio
On October 31, 2014, the Basel Committee on Banking Supervision (the “Basel Committee”) released the final Net Stable Funding Ratio (the “NSFR”) framework, which requires banking organizations to maintain stable funding (in the form of various types of liabilities and capital) for their assets and certain off-balance sheet activities. The NSFR finalizes a proposal first […]
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Posted in Banking & Financial Institutions, Financial Regulation, International Corporate Governance & Regulation
Tagged Banks, Basel Committee, Capital requirements, Financial institutions, Financial regulation, Foreign banks, International governance, Liquidity
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Corporate Governance Issues for 2015
Governance of public corporations continues to move in a more shareholder-centric direction. This is evidenced by the increasing corporate influence of shareholder engagement and activism, and shareholder proposals and votes. This trend is linked to the concentration of ownership in public and private pension funds and other institutional investors over the past 25 years, and […]
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Posted in Boards of Directors, Practitioner Publications
Tagged Boards of Directors, Corporate governance, ISS, Oversight, Proxy advisors, Shareholder activism, Shareholder suits, Sidley Austin
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The Application of Common-Interest Privilege to Merger Pre-Closing Communications
A New York appellate court today [December 04, 2014] ruled that the “common-interest privilege” can protect from discovery pre-closing communications among merger parties and their counsel made for the predominant purpose of furthering a common legal interest, even if there is no pending or anticipated litigation. Ambac Assurance Corp. v. Countrywide Home Loans, Inc., No. […]
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Posted in Court Cases, Mergers & Acquisitions, Practitioner Publications
Tagged Attorney-client privilege, Books and records, Discovery, Mergers & acquisitions, Mortgage lending, New York, Wachtell Lipton
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Enforceability of Obligations Against Non-Signatories in Private Mergers
A recent Delaware decision in Cigna provides important guidance on simple yet important steps that buyers of private companies using a merger structure can take to more effectively impose certain post-closing obligations on stockholders who do not sign agreements to support the deal. While a stock purchase involves entering into an agreement with each stockholder […]
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Posted in Court Cases, Mergers & Acquisitions, Practitioner Publications
Tagged Delaware cases, Delaware law, Indemnification, Merger litigation, Mergers & acquisitions, Minority shareholders
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Delaware Court Provides Guidance in a Sale-of-Control Situation
On November 25, 2014, the Delaware Court of Chancery issued a decision in In Re Comverge, Inc. Shareholders Litigation, which: (1) dismissed claims that the Comverge board of directors conducted a flawed sales process and approved an inadequate merger price in connection with the directors’ approval of a sale of the company to H.I.G. Capital […]
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Posted in Boards of Directors, Court Cases, Mergers & Acquisitions, Practitioner Publications
Tagged Boards of Directors, Change in control, Deal protection, Delaware cases, Delaware law, Fiduciary duties, Jason Halper, Merger litigation, Mergers & acquisitions, Orrick
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Do Long-Term Investors Improve Corporate Decision Making?
It is well established that managers of publicly traded firms, left to their own devices, tend to maximize their private benefits of control rather than the value of their shareholders’ stake in the firm. At the same time, imperfectly informed market participants can lead managers to make myopic investment decisions. One of the most important […]
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Posted in Academic Research, Comparative Corporate Governance & Regulation, Empirical Research
Tagged Agency costs, Decision-making, Investor horizons, Long-Term value, Management, Payouts, Shareholder value
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“Just Say No”
On October 22, 2014, Institutional Shareholder Services issued a note to clients entitled “The IRR of ‘No’.” The note argues that shareholders of companies that have successfully “just said no” to hostile takeover bids have incurred “profoundly negative” returns. In a note we issued the same day, we called attention to critical methodological and analytical […]
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Posted in Mergers & Acquisitions, Practitioner Publications
Tagged Antitakeover, Bidders, Martin Lipton, Mergers & acquisitions, Shareholder activism, Takeovers, Wachtell Lipton
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The Law and Finance of Anti-Takeover Statutes
Over the last 15 years, numerous economics articles, many published in top finance journals, have examined the effect of takeover law on performance, leverage, managerial stock ownership, worker wages, patenting, acquisitions, and other firm actions. These studies have concluded, among other things, that anti-takeover laws are associated with a decline in managerial stock ownership, and […]
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Posted in Academic Research, Empirical Research, Mergers & Acquisitions
Tagged Antitakeover, Mergers & acquisitions, Poison pills, State antitakeover statutes, Takeover defenses, Takeovers
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Determining the Likely Standard of Review in Delaware M&A Transactions
M&A practitioners are well aware of the several standards of review applied by Delaware courts in evaluating whether directors have complied with their fiduciary duties in the context of M&A transactions. Because the standard applied will often have a significant effect on the outcome of such evaluation, establishing processes to secure a more favorable standard […]
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Posted in Boards of Directors, Mergers & Acquisitions, Practitioner Publications
Tagged Boards of Directors, Business judgment rule, Delaware law, Fairness review, Fiduciary duties, Mergers & acquisitions
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