PwC Explains Why Fraud Governance Means More Than Just Compliance

Fraud incidents have increased by over 130 percent in the past year, resulting in significant monetary and reputational losses for financial institutions. Many of these incidents — including high-profile crimes such as the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”) attacks from last year — involved the exploitation of governance deficiencies and ineffective operating models.1

Maintaining proper governance for risk management has been a major point of focus for industry groups and regulators, including the Office of the Comptroller of the Currency, the Basel Committee on Banking Supervision, the Committee of Sponsoring Organizations of the Treadway Commission, and the … Read more

Corporate Bond Trading on an Exchange

An over-the-counter (OTC) market and an open limit order book (LOB) market are the two common mechanisms for organizing financial markets. An OTC is a decentralized market, where trades occur only through dealers. The dealers’ quotes are not fully transparent and are not binding, so customers can shop around and negotiate for the price. An open LOB is a centralized market, where traders submit anonymous orders to a central order book. The quotes are transparent and binding, traders can trade among themselves, and the transactions are transparent as well.

Corporate bonds are traded worldwide mostly in OTC markets while stocks … Read more

Brexit: The Lessons from Trade Wars

Brexit has set the stage for a retaliatory trade war that neither the U.K. nor the E.U. wants and that will injure consumers (and others) on both sides. Moreover, it could threaten the U.S. as well, if it leads the U.K. to relax its financial regulatory requirements and return to its former “regulatory-lite” policies in order to compete more effectively (and thereby lead a regulatory race to the bottom).

In a paper just posted on SSRN (available here) that I deliver at the University of Paris/Sorbonne in two weeks, I analyze how trade wars begin and play out, applying … Read more

Cleary Gottlieb Discusses Federal Spoofing Conviction

On August 7, 2017, the U.S. Court of Appeals for the Seventh Circuit unanimously upheld Michael Coscia’s conviction on spoofing and commodities fraud charges in United States v. Coscia, No. 16-3017 (KFR), 2017 WL 3381433 (7th Cir. Aug. 7, 2017), rejecting Coscia’s constitutional challenge to the anti-spoofing statutory provision and finding Coscia’s conviction adequately supported by the evidence and testimony adduced at trial.

Coscia was the first trader to be convicted under the anti-spoofing provision of the Commodity Exchange Act (“CEA”), 7 U.S.C. § 6c(a)(5).  The Seventh Circuit’s decision upholding Coscia’s conviction marks the first time a federal appellate … Read more

A Simple Plan to Liberate the Market for Corporate Control

It’s time to exempt a certain type of hostile bid – an all-cash, all-shares tender offer – from a poison pill defense.  In essence, I propose a statutory rule requiring a board to remain neutral in the face of such an offer unless the company’s certificate of incorporation allows otherwise.  This would be similar to but less general than Rule 21 of the UK’s Takeover Code.

Argument for Change

In Unocal Corp. v. Mesa Petroleum, the Delaware Supreme Court created the so-called Unocal test, a standard of review for board actions aimed at warding off a hostile bidder … Read more

Law and Corporate Governance

Few research topics over the last two decades have proven as alluring and elusive as corporate governance.  Its allure is self-evident: Since the turn of the 21st century, a growing number of pundits, commentators, and scholars have argued that high quality corporate governance matters in creating and preserving firm value. And accordingly, various courts, legislatures, regulators, and boards of directors have introduced a host of governance reforms in response.  Yet the topic is also elusive, largely because corporate governance operates through a wide variety of means, including the financial structure of a company, economic incentives, monitoring, formal authority, real authority, … Read more

Clifford Chance Discusses US Considerations For Transition Away From Libor

Although a bedrock of the financial markets for over 30 years, LIBOR has been under pressure ever since the Wheatley Review, and a speech given by Andrew Bailey, Chief Executive of the UK’s Financial Conduct Authority (FCA) on July 27th heralds its potential demise.[1] Market participants need to prepare for the possible transition away from LIBOR by the end of 2021. This briefing explains why and assesses the practical and documentary implications for the US market.

Key Points

  • UK regulatory support for LIBOR is likely to be withdrawn by the end of 2021.
  • The development of suitable alternatives for

Read more

PwC Discusses Bank Resolution Plans’ Public Sections

The recently released public sections of the 2017 resolution plans submitted by the eight US global systemically important banks (G-SIBs)1 provide a unique window into the banks’ resolution planning efforts that have developed over the last five years. Notably, the 2017 plans not only describe how the banks have enhanced their resolution plans but also highlight improvement in their intrinsic resolvability, which is indicative of the mindset change that has evolved over the past seven years: resolution planning has developed from a one-time compliance “project” to an important strategic consideration for business-as-usual (BAU) financial and operational choices.

These fifth… Read more

Simpson Thacher Discusses Combating Securities Fraud Allegations With10b5-1 Trading Plans

A recent decision issued by the United States District Court for the District of Massachusetts, Harrington v. Tetraphase Pharmaceuticals, Inc., highlights the value of established trading plans in defending against securities fraud allegations.[1] These trading plans, which are established pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934, are not absolute defenses, but do offer corporate directors and officers (“insiders”) a greater level of protection in the event they purchase or sell company shares during the putative class period of a subsequent securities litigation. There are, however, several factors to consider in deciding whether a 10b5-1 … Read more

Implementing Basel Capital Requirements: The Dark Side

Following the recommendations of the Basel Committee on Banking Supervision, most financial systems around the world have imposed new capital requirements for banks in recent years. These moves seem to be justified on two powerful economic grounds. First, better capitalized banks promote financial stability by reducing banks’ incentives to take risks and increasing banks’ buffers against losses. Second, lack of compliance with a set of rules established by an internationally recognized institution such as the Basel Committee may harm confidence in a country´s financial system.

In a recent paper (available here), however, we argue that the implementation of Basel … Read more

The Twilight Zone: OTC Regulatory Regimes and Market Quality

More than 8,000 domestic equity securities were publicly traded in the U.S. over-the-counter (OTC) market in 2010.  Yet, research studying this market is limited.  On the one hand, the OTC market attracts stocks of firms that tend to be small and growing.  On the other hand, it generally offers investors less protection than the traditional exchanges do, and fraudulent and abusive practices in this market can cause significant economic harm to investors.  Thus, the OTC market illustrates the trade-off that securities regulators face between ensuring investor protection and creating a viable market for small growth firms.  This trade-off has come … Read more

Were Non-Independent Boards Really Captured Before Sarbanes-Oxley?

A central question in the corporate governance literature concerns the impact of boards on performance. Some studies support the view that governance structures endogenously arise as optimal solutions to the contracting environment of the firm. Many studies support an opposing view that governance structures can be captured by CEOs in ways that reduce monitoring, promote rent seeking by executives, and exacerbate corporate wrongdoing.

Papers in this latter vein generally support Sarbanes-Oxley era reforms that changed corporate governance and mandated independent boards of directors. However, clean evidence on the average effect of requiring independent boards is limited and contested, and basic … Read more

Gibson Dunn Updates Securities Litigation for First Half of 2017

The first half of 2017 brought with it a nearly unprecedented rate of new filings (a pace few predicted), as well as several important developments in the securities laws.  Among other things, the U.S. Supreme Court decided to weigh in on several key issues, including state court jurisdiction over Securities Act class actions and whether omissions of disclosures under Item 303 of Regulation S-K are actionable under Section 10(b).  We also highlight a key change in public company audit standards that may very well play a role in future securities litigation, as well as new decisions interpreting and applying Omnicare … Read more

How Irrational Actors in the CEO Suite Affect Corporate Governance

Recent news of sexual harassment and other legal controversies at Uber and throughout Silicon Valley serves as a vivid reminder that irresponsible and unethical conduct continues across the corporate landscape. Revelations of serious transgressions by senior corporate leaders belies a central assumption underlying contemporary corporate law theory. Much of corporate law is premised on rational actor theory – the idea that the law should be designed to leverage each person’s propensity to act in his rational self-interest. Corporate theorists have invoked this idea to promote a legal regime that relies on a system of incentives to cajole, but not command, … Read more

The Case Against Passive Shareholder Voting

In the past few years, investors have begun to embrace the reality that academics have been championing for decades—that a broad-based passive indexing strategy is superior to picking individual stocks or actively managed mutual funds. As a result, millions of investors have abandoned actively managed mutual funds, or “active funds,” in favor of passively managed funds, or “passive funds.” This past year alone, investors withdrew $340 billion from active funds (approximately 4 percent of the total) while investing $533 billion into passive funds (growing the total by 9 percent).

This historically unprecedented shift is good news for investors, who benefit … Read more

Debevoise & Plimpton Discusses SEC View of Blockchain Tokens as Securities

On July 25, 2017, the Securities and Exchange Commission (“SEC”) Division of Enforcement issued a report of investigation under Section 21(a) (the “Report”) concluding that blockchain tokens sold by The DAO (“DAO Tokens”) were securities as defined under relevant law. These blockchain tokens are analyzed under the so-called Howey[1] test, and the SEC found that DAO Tokens allowed the holders to profit from the efforts of others, a key element of that test. We labeled a blockchain token that meets the definition of security a “security token” in our memorandum that accompanied “A Securities Law Framework Read more

How Dual Class Shares in IPOs Can Create Value

The shareholder empowerment movement (the “movement”), driven primarily by public pension funds and union-related funds with over $3 billion in assets, has renewed its effort to eliminate, restrict, or at least discourage companies from creating dual class share structures in initial public offerings (IPOs).  The impetus was the issuance of non-voting stock in the recent Snap Inc. IPO.  Such advocacy, if successful, would not be trivial, as many of our most valuable and dynamic companies, including Alphabet (Google) and Facebook, have gone public by offering shares with unequal voting rights.

The movement’s vigorous response to Snap Inc.’s hugely successful IPO … Read more

Benefit Corporations and Public Markets

Benefit corporations are a new legal form of business association created to support social enterprises. Over half of U.S. states have adopted a benefit corporation statute, and over 2,000 companies have chosen the form. So far, almost all of these are closely held corporations. However, if this innovation really takes off, publicly traded companies may choose to become benefit corporations. It is instructive to consider the problems such companies may face, and what corporate governance mechanisms might help address those problems. In a recent paper I explore these questions, with a particular focus on the structure of early experiments in … Read more

Latham & Watkins Discusses How Healthcare Firms Can Prepare for the Next Cyberattack

On June 2, 2017, in the wake of the widespread cyberattack caused by the WannaCry ransomware cryptoworm, the US Department of Health & Human Services (HHS), Office for Civil Rights (OCR) added to its arsenal of cybersecurity guidance a checklist to assist HIPAA Covered Entities and Business Associates in responding to cyber-related security incidents (the Cybersecurity Checklist).1 The Cybersecurity Checklist focuses on entities’ execution of their incident response plans as well as external reporting obligations, and encourages entities to perform certain mitigating efforts, including sharing information with private-sector information-sharing and analysis organizations (ISAOs). In addition, recent OCR enforcement matters … Read more

Cleary Gottlieb Analyzes Second Circuit Reversal of Rabobank Libor Convictions

On July 19, 2017, the Second Circuit Court of Appeals held in United States v. Allen, No. 19-CR-898 (JAC), 2017 WL 3040201 (2d Cir. 2017) that the Fifth Amendment’s prohibition on the use of compelled testimony in American criminal proceedings applies to the use of testimony compelled by a foreign sovereign.  The court further held that when the government makes use of a witness who has been exposed to a defendant’s compelled testimony, the government bears the “heavy burden” to prove that the witness’s exposure to the compelled testimony did not “shape, alter, or affect the evidence used by … Read more

The Value of Corporate Disclosure in Emerging Markets

It has been well documented that in the U.S. and other countries with developed stock markets, sound public disclosure practices strengthen the reputation and credibility of firms. However, it’s unclear whether good disclosure practices are also beneficial in emerging markets that have weak systems of financial controls. Does disclosure build investor confidence? If so, are public disclosures the most effective way to disseminate information?

In my paper, “Catering through Disclosure: Evidence from Shanghai-Hong Kong Connect,” I use China to explore these questions and find that, although firms operating in developing markets use disclosure to boost investor confidence, it … Read more

Paul Weiss Offers M&A at a Glance for June

M&A activity in June 2017 struggled to build upon any recent favorable indicators. Globally, total deal volume by dollar value decreased from May 2017 volume by 3.5% to $263.00 billion, and the number of deals decreased by 5.8% to 3,116. The market’s downward trend was more pronounced in the U.S., where total deal volume by dollar value decreased over the same period by 8.1% to $94.44 billion, and the number of deals decreased by 21.7% to 662.

Strategic vs. Sponsor Activity

Sponsor-related activity, both globally and in the U.S., slipped from its strong performance in May, decreasing in total dollar … Read more

Do Contracts for Executive Compensation Maximize Firm Value?

In a recent study, we examine whether executive compensation contracts are designed to maximize firm value. There is considerable debate regarding executive compensation in both the public arena and academia. On the one hand, proponents of the “value maximization” theories claim that executive compensation contracts are optimally designed to attract and provide incentives for executives in a competitive job market to maximize shareholder value. On the other hand, proponents of the “rent extraction” theories suggest that market forces fail in this setting, because executives are able to practically set their own compensation, therefore executive compensation contracts are set sub-optimally … Read more

Insider Trading: Personal Benefit Has No Place in Misappropriation Tipping Cases

The Supreme Court’s decision last December in Salman v. United States[1] settled important issues concerning Rule 10b-5’s reach over trades based on a tip of confidential material information. One important question, however, remains unanswered: In tipping cases based on the misappropriation theory, is it necessary, as some courts have stated, to show that the tipper enjoyed a personal benefit of which the trader was aware? There are commentators who assume the need for such a showing,[2] but in fact the lower courts have split on the issue and the Supreme Court in Salman explicitly said that it was … Read more

Cheating the Algorithm: The New “Pump and Dump” Fraud

Old frauds never die. Nor do they fade away. Rather, they mutate and morph into new configurations in response to new opportunities (which new technologies usually create). Thus, the traditional boiler room “pump and dump” scheme was a product of the widespread adoption of the telephone, which allowed high pressure salesmen to reach hundreds of gullible customers in a day. Today, an analogous new technological development is inviting new forms of fraud. The new development is algorithmic trading (which by some estimates now accounts for 30 percent of stock trading[1]). Computers are programmed to trade in a micro-second … Read more

The Rise of Regulatory Affairs in Innovative Startups

A few years ago, signs of change started to appear in the startup world. Media headlines began reporting battles between regulators and Uber and Airbnb. Sharing economy companies faced worker classification issues, and fintech companies bumped up against securities regulation, lending laws, and licensing requirements. Former politicians and government aides joined startup boards. A top-tier venture capital firm created the first policy and regulatory affairs group to help its portfolio companies navigate laws affecting their businesses and foster contacts with policy makers, regulators, and investors.

In a forthcoming book chapter, available here, I describe the increasing importance of regulatory … Read more

Is There a Local Culture of Corruption in the U.S.?

Culture often helps explain the behavior of individuals and firms. The general finding in the law and economics literature is that certain societal norms, such as attitudes toward corruption, persist even when individuals relocate to a very different legal and social milieu (e.g., Fernandez, 2011). Studies show that individuals with cultural ties to more corrupt countries exhibit a greater propensity to engage in unethical behavior in the U.S., such as illegal parking by U.N. diplomats (Fisman and Miguel, 2007), corporate tax evasion (DeBacker, Heim, and Tran, 2015), and accounting fraud (Liu, 2016).

In our study of public corporations (Dass, Nanda, … Read more

Gibson Dunn Discusses OCC Office’s Guidance on Third-Party Business Relationships

In June, the Office of the Comptroller of the Currency (OCC), the regulator of national banks, federal savings associations, and federal savings banks, issued additional guidance on the oversight and risk management of third-party relationships (Bulletin 2017-21).  The guidance takes the form of responses to fourteen “frequently asked questions” about the OCC’s prior guidance in its Bulletin 2013-29.  In that Bulletin, the OCC required banks to adopt risk management and oversight procedures for third-party relationships based on the level of risk and complexity of the applicable relationship.  OCC Bulletin 2013-29 also outlined a recommended risk management process consisting of:  (i) … Read more

‘Don’t Ask, Don’t Tell’ Corporate Crime

In my most recent article, Don’t Ask, Don’t Tell’ Corporate Crime, I argue that modern large-scale corporate crime is driven and shaped by ‘don’t ask, don’t tell’ incentives.[1] ‘Don’t ask, don’t tell’ enforcement based on disclosure polices what corporations say, rather than what they do. The approach also places large, irrelevant burdens on businesses; fuels corporate crime by insulating middle management from prosecution; and, ironically, allows wrongdoing to incubate for increasingly long periods of time without actually revealing what we need to know. Using the 2015-17 Volkswagen scandal as an illustration, I identify three … Read more

Clifford Chance Discusses Smart Contracts

Consider a world in which contracts are performed by computers and drafted in computer code by legal software engineers. What kind of efficiencies in terms of speed of execution, legal certainty and transparency could be gained? Conversely, what are the risks of trusting machines to execute contracts, and perhaps even to enter into contracts with other machines? These are some of the questions raised by smart contracts, an emerging technology that promises self-executing contracts implemented in computer code and performed by networks of computers, with minimal intervention from human agents after they have been “launched” by the parties. Backers of … Read more

Second Circuit Ruling on HSBC Deferred-Prosecution Agreement Suggests Judges Are Potted Plants

When then-Judge John Gleeson ruled in early 2016 that the public had a right to see a report by an independent monitor on how HBSC was faring since it entered into a controversial five-year deferred prosecution agreement, he noted that he was, after all, not, “to borrow a famous phrase, a potted plant.”  His ruling came in a case filed by Hubert Dean Moore, an HSBC mortgage customer from Pennsylvania who wanted to know whether there were still problems at HSBC and asked the court to order disclosure of the 1000-page report. HSBC had and has publicly revealed ongoing and … Read more

Cleary Gottlieb Discusses Supreme Court Case on State Court Jurisdiction in Securities Class Actions

The Supreme Court announced  last month that it will take up the question of whether state courts have subject matter jurisdiction over class actions under the Securities Act of 1933 (the Securities Act).  Cyan, Inc. v. Beaver Cty. Employees Ret. Fund, — S. Ct. —- No. 15-1439, 2017 WL 2742854, at *1 (June 27, 2017).  The first cases to adopt the view that the Securities Litigation Uniform Standards Act of 1998 (SLUSA) divested state courts of jurisdiction over class actions that allege only Securities Act claims were litigated by Cleary Gottlieb over a decade ago.  See Rovner v. Vonage Read more

A Reality Check on the Appeal of the DFC Global Appraisal Case

A peculiar appeal is currently before the Delaware Supreme Court. The case involves the judicial appraisal of DFC Global, a company acquired by a private equity firm in 2014. Approximately 12 percent of DFC stockholders dissented, and the Court of Chancery found that the fair value of the company was $10.30 per share, slightly higher than the $9.50 transaction price that the board had negotiated. On appeal, DFC Global has asked the Delaware Supreme Court for a rule of law that the Court of Chancery must defer to the merger price in an arm’s length transaction where there was a … Read more

Paul Weiss Discusses Treasury Report on Reforms to U.S. Banking Regulations

On June 12, the U.S. Department of the Treasury issued the first of four reports to President Trump (the “Report,” available here) in response to the executive order signed on February 3 (see our client alert here) (the “Executive Order”) setting forth “Core Principles” intended to guide the reform of the U.S. financial regulatory system.

This first report addresses the U.S. depository system, covering banks, savings associations and credit unions. The upcoming reports will cover the regulation of the following areas:  capital markets; the asset management and insurance industries; and non-bank financial institutions, financial technology and financial innovation.The … Read more

SEC Chair Clayton Lays Out Plans and Principles in First Public Speech

I am delighted to speak to you here at the Economic Club of New York.  The Club has established itself as an esteemed, non-partisan forum for economic discourse.  It is an ideal place to discuss policy of the U.S. Securities and Exchange Commission (“SEC” or “the Commission” or “the agency”) and its effects on the U.S. economy and the American people.  I intend to do just that in this, my first public speech as Chairman of the SEC.[1]

Nearly six months ago, my predecessor Mary Jo White gave her last public address as SEC Chair in this same forum.  … Read more

Skadden Discusses How Second Circuit Raised Bar for Class Certification in Petrobras Securities Case

On July 7, 2017, the U.S. Court of Appeals for the Second Circuit offered significant guidance regarding the circuit’s class certification requirements in In re Petrobras Securities, No. 16-1914. In addressing an issue of first impression, the Second Circuit underscored the need to consider the individualized nature of determining whether a plaintiff engaged in a “domestic” securities transaction under the U.S. Supreme Court’s decision in Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010). The decision effectively creates an additional hurdle for plaintiffs seeking to certify a class of investors in nonexchange-traded securities.

In In re Petrobras Read more

Cleary Gottlieb Discusses Recent Cyber-Attack Developments

In late May, Target Corporation (“Target”) reached an $18.5 million settlement with the Attorneys General (“AGs”) of 47 states and the District of Columbia, resolving the AGs’ investigation into Target’s 2013 data security breach.  Target, like other victims of cyber breaches, has faced intense regulatory inquiries based on the incident, along with extensive civil litigation by consumers, shareholders, and financial institutions.

Target’s multistate settlement with regulators – the largest such data breach settlement to date – brings the total amount paid by the company to settle legal claims arising out of the breach to over $130 million, including settlements paid … Read more

How Sarbanes-Oxley Affects Board Changes and CEO Turnover

Following the corporate governance scandals of the early 2000s, the effectiveness of board monitoring came into question. In response, Congress passed the Sarbanes-Oxley Act of 2002 (SOX) in an attempt to increase monitoring and improve corporate governance. In conjunction with SOX, exchange listing requirements required firms to have a majority of independent directors on their boards.  While firms that did not already have such a majority were forced to alter their board structures, SOX may also have prompted other firms to alter the composition of their boards.  In our recent paper, published in the Journal of Banking and Finance, … Read more

SEC’s Acting Chief Economist Discusses Role of Big Data, Machine Learning, and AI in Assessing Risk

This is the first time that I have addressed the emergence of AI in one of my talks. But I have spoken previously on the two core elements that are allowing the world to wonder about its future: big data and machine learning.[1] Like many of your institutions, the Commission has made recent and rapid advancements with analytic programs that harness the power of big data. They are driving our surveillance programs and allowing innovations in our market risk assessment initiatives. And the thoughts I’m about to share reflect my view on the promises – and also the limitations … Read more

Wachtell Lipton Discusses the Classified Board Duels

Professor Lucian Bebchuk has engaged in two rounds of law-review-article duels with Professor Martijn Cremers and Professor Simone Sepe over classified boards. The weapons were statistics (and common sense). Cremers and Sepe wore the classified-board-stakeholder colors; Bebchuk, the agency-model-shareholder-democracy colors. Cremers’ and Sepe’s riposte was decisive.

The field for these duels was chosen by Bebchuk in 2011 when he chartered the Harvard Law School Shareholder Rights Project (the “Harvard Project”). Bebchuk described the Harvard Project as an academic program designed to “contribute to education, discourse, and research related to efforts by institutional investors to improve corporate governance arrangements at publicly … Read more

Gibson Dunn Discusses Appraisal Actions in Delaware

In re Appraisal of PetSmart, Inc.[i]

Under Delaware law, “the Court shall determine the fair value of the shares exclusive of any element of value arising from the accomplishment or expectation of the merger.”[ii] As the statute places the duty to determine fair value on the court, the burden of proof is not specifically allocated to either of the litigating parties, and so “the burden to establish fair value by a preponderance of evidence rests on both” the petitioners and the company.[iii] This construct presents what Vice Chancellor Slights described in In re Appraisal of PetSmart, Inc.Read more

Mutual Fund Advisors’ “Empty Voting” Raises New Governance Issues

The creation of the mutual fund will go down as one of the greatest innovations in financial history. It has provided tens if not hundreds of millions of unsophisticated and uninformed stock market investors with easy access to low cost portfolio diversification. Moreover, for those investors who do not want to spend time and money searching for portfolio managers who can earn excess risk-adjusted returns, passively managed index funds provide tremendous value.

But mutual funds also have their downside. They generate what Ronald Gilson and Jeffrey Gordon would call the “agency costs of agency capitalism.” Mutual funds generate these costs … Read more

Paul Weiss Offers M&A at a Glance for May

M&A activity showed mixed results in May 2017, with similar trends to April’s figures, both in terms of deal volume and number of deals.
Globally, total deal volume, as measured by dollar value, increased by 6.9% to $274.05 billion and the number of deals increased by 7.9%
to 3,145. In the U.S., although the number of deals increased by 9.4% to 816, a decrease in average deal size led to a 6.0% decrease in total
deal volume to $102.13 billion.

Strategic vs. Sponsor Activity

Sponsor-related activity rebounded in May (with all metrics nearing or marking their 12-month high), but strategic … Read more

Board Declassification Activism: Why Run From the Evidence?

In a recently released study, we examined the value implications of board declassifications promoted by the Harvard Law School Shareholder Rights Project (“SRP study”). In a May 2017 note, Lucian Bebchuk and Alma Cohen “contest” the results in our study. In our reply, “Board Declassification Activism: Why Run Away from the Evidence?” we show that the Bebchuk-Cohen critique is not only unwarranted, but also fails to engage with our study’s central finding: that the declassification activism of the Shareholder Rights Project (“SRP”) was followed by substantial declines in firm value of from $90 billion to $149 billion.

For … Read more

Conflicts and Capital Allocation

In the aggregate, retail investors allocate tremendous amounts of capital and often turn to financial advisers to help them pick the best investment opportunities. In a recently published article, I describe how financial adviser conflicts of interest now distort overall capital allocation by driving capital to investment opportunities that reward financial advisers—altering the flow of capital.

Our capital markets work best when they efficiently move capital from savers to opportunities in need of capital. Financial intermediaries make our capital markets work by connecting savers to these opportunities. Of course, these intermediaries do not work for free. Stockbrokers receive commissions … Read more

The Shifting Purpose of the Rule 10b-5 Private Right of Action

Private Rule 10b-5 lawsuits have inspired volumes of academic literature, much of it focused on the suits’ social benefits (or lack thereof, depending on the author’s perspective). In a chapter for the forthcoming Research Handbook on Representative Shareholder Litigation, I introduce readers to this aspect of the Rule 10b-5 literature, which is best understood in light of the historical and doctrinal evolution of Rule 10b-5.

In its early years, the implied right of action under Rule 10b-5 operated as essentially a federalized version of the common law fraud cause of action focused on securities transactions. The service of process provisions … Read more

The Beginnings of the U.S. Capital Gains Tax Preference

With the recent release of the Trump administration’s tax plan, discussions of tax “reform,” or at least tax cuts, are once again at the center of American law and politics. Although the president’s tax plan is short on details, it has plenty of potential benefits for high-income earners, including a reduction in top marginal income tax rates and a modest decrease in the tax rate on capital gains. More specifically, the White House tax plan seeks to repeal the 3.8 percent Obamacare tax on net investment income, thereby increasing the tax preference for realized gains from capital investments.

Unsurprisingly, the … Read more

Tournament-Based Incentives, Corporate Cash Holdings and the Value of Cash

In a new paper, we examine how tournament-based incentives affect corporate cash holdings and the value of those holdings for shareholders.

Before a firm selects a new CEO, it may run a tournament within the firm to rank its vice-presidents (VPs) as candidates. Because the actual ability of a VP is unobservable, the VP with the best performance relative to his peers will likely win the tournament. The payoff structure of tournament-based incentives is similar to that of stock options, in which the payoff is an increase in pay, perquisites, and prestige associated with being the CEO. This option-like feature … Read more

The Financial CHOICE Act of 2017 and the Future of SEC Administrative Enforcement

Professor John C. Coffee, Jr. of Columbia Law School is scheduled to speak on June 22 before the Securities and Exchange Commission’s Investor Advisory Committee, which asked him to address the CHOICE Act’s impact on the SEC’s enforcement powers. These are his remarks:

The Financial CHOICE Act of 2017 has now passed the House of Representatives on a strict party-line vote (winning not a single Democratic vote), but its prospects in the Senate seem dim. Nonetheless, a fair chance exists that individual provisions of this bill will make it through the Senate in one or more watered-down compromises. But which … Read more

King & Spalding Discusses Potential Effects of SEC Disgorgement As a Penalty

In the week since the Supreme Court’s unanimous decision in Kokesh v. SEC,[1] which rejected the Securities and Exchange Commission’s longstanding position that disgorgement was an equitable remedy not subject to the five-year statute of limitations in 28 U.S.C. § 2462, many have commented about the increased need for the SEC’s enforcement attorneys to complete their investigations quickly and the frustration  that hidden ill-gotten gains would never be recovered due to the five-year limit.  These are important and valid ramifications, and we include them in this article.

But the Kokesh decision raises other potential consequences that have not … Read more