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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

Corporate Governance Consequences of Passive Investing

The popularity of index funds, which automatically track an index of stocks, is continuing to grow in the U.S, and, albeit less intensely, in the EU. Due to the high concentration of the index funds industry, the exponential rise of mutual funds designed to track stock indices has had significant corporate governance implications. Specifically, passive investing significantly affects listed companies’ ownership on both sides of the Atlantic. The three leading passive fund managers (BlackRock, Vanguard, and State Street) make up an increasingly important component of the shareholder base of listed companies, as they hold relevant stakes (usually not exceeding 5 … Read more

The Case for Doing Nothing About Common Ownership of Competing Firms

One of the hottest antitrust topics of late has been institutional investors’ “common ownership” of minority stakes in competing firms.  Writing in the Harvard Law Review, Einer Elhauge proclaimed that “[a]n economic blockbuster has recently been exposed”—namely, “[a] small group of institutions has acquired large shareholdings in horizontal competitors throughout our economy, causing them to compete less vigorously with each other.”  In the Antitrust Law Journal, Eric Posner, Fiona Scott Morton, and Glen Weyl contended that “the concentration of markets through large institutional investors is the major new antitrust challenge of our time.”  Those same authors took to … Read more

Dechert discusses SEC’s Settled Administrative Proceedings Against NYSE

The Securities and Exchange Commission (SEC or Commission) on May 1, 2014 announced a settlement (Settlement) with the New York Stock Exchange LLC and certain of its affiliates (collectively, the NYSE), addressing a variety of practices – including informational disparities and the current hot-button topic of co-location.[1] In this latest settlement concerning electronic trading and the dissemination of market data,[2] the NYSE agreed, without admitting or denying the SEC’s findings, to settle charges relating to a wide variety of historic conduct that largely took place between 2005 and 2011. As part of the Settlement, the NYSE consented to a $4.5 … Read more

Top 10 Corporate and Securities Law Articles for 2018

The Corporate Practice Commentator is pleased to announce the results of its twenty-fifth annual poll to select the ten best corporate and securities articles.  Teachers in corporate and securities law were asked to select the best corporate and securities articles from a list of articles published and indexed in legal journals during 2018.  Just short of 400 articles were on this year’s list.  Because of the vagaries of publication, indexing, and mailing, some articles published in 2018 have a 2017 date, and not all articles containing a 2018 date were published and indexed in time to be included in this

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Is Shareholder Voting an Effective Corporate Governance Tool?

Proponents of shareholder voting argue that restricting it would reduce the ability of shareholders to hold management accountable. The implication of this argument is that mandating equal voting rights for all shares will benefit shareholders. However, the evidence as to the effectiveness of shareholder proxy voting is inconclusive (see, e.g., Ertimur et al. (2011), Armstrong et al. (2013), and Larcker et al. (2015), among others). One of the limitations of prior studies that examine the efficacy of shareholder voting is that the optimal voting decision for a given proxy item is often unclear. For example, one major proxy voting issue … Read more

Guarantor of Last Resort: Is There a Better Alternative?

Larry Summers, who was one of President Obama’s key economic advisors when the Dodd-Frank Act of 2010 was enacted, recently decried what he called “excessive populism” in portions of that legislation. This might seem surprising; Dodd-Frank’s technocracy-on-steroids approach (848 pages! 390 separate rulemaking requirements!) might seem like the antithesis of bust-up-the-banks populism. “My administration is the only thing between you and the pitchforks,” President Obama once famously told the nation’s leading bankers.

But Summers was referring to several specific Dodd-Frank provisions that curtailed the federal government’s financial rescue powers. During the financial crisis of 2007-2008, the Federal Reserve, the … Read more

SEC Chief Accountant Talks the Future of Financial Reporting

I’m grateful for the opportunity to visit Baruch College’s Zicklin School of Business and speak at the annual financial reporting conference for the fourth time. Many students who were starting their collegiate work here when I first spoke at this conference are now members of the graduating class.

I could use other examples in tracking changes to make the same point: the world stops for no one. Financial reporting is not exempt from change. This conference also provides an opportunity to talk about current issues in financial reporting and to peer into the future together and explore the role of

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ISS Discusses Corporate Governance in Emerging Markets

Analyzing corporate governance at companies in emerging markets can be really tough. A combination of differing regulatory standards, disclosure requirements, market norms, local investor preferences, and more all collude to make the evaluation of governance structures difficult. Giving credit where due, emerging market economies have made significant corporate governance strides over the past decade, as the adoptions and revisions of governance codes and relevant regulations have led to better disclosure standards, higher levels of board independence, and more shareholder protections.

Despite these developments, emerging markets continue to have a unique set of characteristics which require special attention when assessing corporate … Read more

Auditing Is Too Important to Be Left to the Auditors!

Clemenceau was right.[1]  Reforming a profession cannot be left to the professionals. A cascade of auditing scandals — in the U.K., the U.S., Europe, and South Africa — has convinced many that reform is necessary. The political reaction has been the most intense in the U.K., where two governmental reports were released last month, each sharply critical of the auditing profession and its regulation. One has called for a new audit regulator that would be financially independent of the industry,[2] and the other by the U.K.’s Competition and Markets Authority (“CMA”) has proposed a number of measures to … Read more

The Effect of Common Ownership on Profits: Evidence from the U.S. Banking Industry

In recent years, large asset managers and other institutional investors have come to own increasingly large shares of firms that are competitors. For instance, BlackRock owns shares of both Bank of America and JPMorgan Chase. Such common ownership is prevalent in many industries. For example, the graph below illustrates the prevalence of common ownership in the U.S. banking industry. It shows the ownership stakes by the five largest bank shareholders in seven of the largest U.S. banks, and in all public banks combined:

Figure 1 Ownership stakes by the five largest bank shareholders in seven of the largest U.S. banks, Read more

Wachtell Lipton Offers Thoughts for Boards of Directors in 2019

In recent years, it has become increasingly evident that the activism-driven corporate world is relatively fragile and is proving to be unsustainable, particularly when viewed in the broader context of rapidly changing political and social norms and increasing divisiveness across many planes of the social contract.  The exponential widening of income inequality, the increasing sense of urgency around climate change, and the widespread socioeconomic upheaval resulting from the displacement of human capital by technology have all been filtering into the debate about the role and governance of the corporate ecosystem.  Persuasive academic and empirical evidence has established the causal link … Read more

Institutional Investors, Voting Power, and Voting Patterns

Institutional shareholders’ role in corporate governance and their effect on firm value have been explored, both theoretically and empirically, mainly in the context of dispersed-ownership environments like the United States or the United Kingdom. In these common law countries, institutional investors play an active role, initiating proposals of their own regarding compensation [1] and appointment of board members. [2] In other countries, however, where corporate ownership is more concentrated and controlling shareholders are more prevalent, institutional investors are expected to fulfill a different function, namely, to protect minority shareholders in their conflict with controlling shareholders by, for example, voting against … Read more

Delaware’s PLX Decision Reminds Corporate Boards of Perils of Navigating Activist Campaign

A recent decision of the Delaware Court of Chancery highlights the need for boards of directors of Delaware publicly traded companies to develop heightened awareness and vigilance in responding to shareholder activists, particularly those following a short-term agenda of putting the company up for sale. The failure of boards to do so may put all directors at risk of being found in breach of their fiduciary duties.

Facts

The factual background of the court’s decision in In re PLX Technology Inc. Stockholders Litigation may sound familiar to many public company directors. Following the December 2012 termination of a pending sale … Read more

Dual Class Stock: The Shades of Sunset

The most important issue in corporate governance today is dual class capitalization, and the most important recent development is the petition submitted on October 24, 2018 by the Council of Institutional Investors (“CII”) to both the New York Stock Exchange and Nasdaq, asking them to place a “sunset” on differentials in voting rights. Under the CII’s proposal, both exchanges would agree not to list an initial public offering (“IPO”) that had dual classes of stock with different voting rights, unless the disparity in per share voting power ended no later than seven years after the IPO. The CII sees this … Read more

The Transatlantic Debate over Shareholder Rights

Effective and sustainable shareholder engagement is a cornerstone of the corporate governance model of listed companies, which is based on a system of checks and balances among boards, management, and stakeholders. Enhancing the involvement of shareholders in corporate governance is therefore an important factor in improving the financial and non-financial performance of companies, particularly with respect to environmental, social, and governance issues, as set forth in the United Nations’ principles of responsible investment (Recital 14 of the Directive, available here). And this is even more the case in view of the fact that the increased involvement of all stakeholders, … Read more

Debevoise Discusses UK’s Proposed National Security Review for M&A

Many countries have been looking again at their ability to block acquisitions when they threaten national security. For example, we reported on a change to German law in July last year, and a European Commission proposal (which would cover all EU member states) in October. Most recently, a new law in the United States has increased the power of the Committee on Foreign Investment (CFIUS) to block deals. Such rule changes – often triggered by a controversial foreign acquisition – are understandable, but investors need to know the process and timeline. Vague tests, long clearance procedures or excessive look-back periods … Read more

Arnold & Porter Compares New California Privacy Law With the EU’s Privacy Regime

On September 23, 2018, the governor of California signed into law an amended version of the California Consumer Privacy Act of 2018 (CCPA),[1] which was originally enacted in late June 2018. The amendments are a partial response to extensive criticism of the legislation as overbroad, ambiguous, and excessively burdensome for organizations doing business in California. Throughout the summer, a coalition of businesses and industry associations  (including the California Retailers Association, the Consumer Technology Association, the Internet Association and others), engaged in a concerted effort to persuade the California Legislature to clarify certain definitions in the law, limit its scope … Read more

Debevoise Discusses the UK’s Proposed National Security Review for M&A Deals

Many countries have been looking again at their ability to block acquisitions when they threaten national security. For example, we reported on a change to German law in July last year, and a European Commission proposal (which would cover all EU member states) in October. Most recently, a new law in the United States has increased the power of the Committee on Foreign Investment (CFIUS) to block deals. Such rule changes – often triggered by a controversial foreign acquisition – are understandable, but investors need to know the process and timeline. Vague tests, long clearance procedures or excessive look-back periods … Read more

Sullivan & Cromwell Discusses Hot Topics in Corporate Governance

Corporate Governance, Surveys, Policies and Reports

  • Lazard Report Finds Increased Shareholder Activism in Q1 2018: Lazard’s Quarterly Review of Shareholder Activism for Q1 of 2018 found increased activism by shareholders in terms of number of campaigns initiated, board seats won and capital deployed. Seventy-three new campaigns were initiated in Q1 2018, compared to 67 in Q1 2017 and 62 in Q1 2016. Sixty-five board seats were won in Q1 2018, compared to 41 in Q1 2017 and 100 for the entirety of 2017. $25 billion in capital was deployed in new campaigns for Q1 2018, the most in any

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