Chad A. Pasternack

Dual-Listed Company Structures: Effect on Liability and Indemnity Contracts

In 2003 Carnival merged with Princess Cruises to form the largest cruise ship company in the world, now known as Carnival Corp. & PLC. Prior to the merger, Carnival was listed on the New York Stock Exchange and Princess was listed on the London Stock Exchange. In order for shareholders of the merging companies to avoid divestiture, the merger was accomplished through a dual-listing agreement. Unlike with a traditional merger, in which either one company absorbs the other company or both companies are absorbed into a newly-created third company, with a dual-listing merger the merging companies remain separate legal entities.… Read more

Craig Eastland

Thomson Reuters Survey Finds New Structures, but no Decline in Inversions

The pending mergers of Johnson Controls, Inc. with Tyco International plc and Pfizer Inc. with Allergan plc means the value of inversions in the pipeline ($185B) has nearly reached the total value of all inversions completed between January 1, 2010 and September 24, 2014 ($197B) – the day the Internal Revenue Service (IRS) released its first passel of rules aimed at curbing inversions (Rules Regarding Inversions and Related Transactions, Notice 2014-52, 2014-42 I.R.B. 712 (2014), Anti-Inversion Rules, AIR1). Our fortuitously timed survey comparing inversion activity before and after AIR1 found that while IRS rules appear to have inspired … Read more

Gwynne L. Skinner

Rethinking Limited Liability of Parent Corporations for their Subsidiaries’ Extraterritorial Violations of Human Rights Law

In order to ensure that victims of business-related human rights and gross environmental abuses in countries that host transnational business (host countries) are able to have the ability to seek and obtaining a remedy for their harm, courts should ignore the separate legal personality of parent corporations operating in countries with weak or corrupt judicial systems where the victims cannot otherwise obtain a remedy against the subsidiary, allowing corporate parents to be held liable for such harm. In such situations, the corporate parents are the entities that can best, and normatively should, remedy the victims’ harm, even if they do … Read more

Shearman & Sterling explains SDNY Bankruptcy Court Holding That Avoidance Powers Can Be Applied Extraterritorially, and Resulting Split Within the SDNY

On January 4, 2016, the United States Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”) deviated from SDNY precedent and held that, despite the absence of clear Congressional intent, the avoidance powers provided for under Section 548 of the Bankruptcy Code can be applied extraterritorially. As a result, a fraudulent transfer of property of a debtor’s estate that occurs outside of the United States can be recovered under Section 550 of the Bankruptcy Code. This ruling creates a split among courts within the Southern District of New York regarding the reach of avoidance powers when it … Read more

Miriam Schwartz-Ziv

Gender and Board Activeness: The Role of a Critical Mass

Are gender-balanced boards more active than non-gender balanced boards? I address this question in “Gender and Board Activeness: The Role of a Critical Mass”, forthcoming in the Journal of Financial and Quantitative Analysis. Using detailed minutes of board meetings that I coded and then analyzed in an econometric model, I find that gender-balanced boards (defined as boards that include at least three directors of each gender in attendance) are approximately twice as active compared to non-gender-balanced boards.

I first hypothesize that once a certain threshold of gender balance is crossed it increases the productivity of a board. … Read more

Mayer Brown discusses EU and US Agreement on Scheme to Replace Safe Harbor: EU – US Privacy Shield

In October 2015, the Court of Justice of the European Union (“CJEU”) held that transfers of personal data from Europe to the United States made under the so-called US Safe Harbor scheme were invalid as those transfers did not ensure an adequate level of protection under European data protection law.

In the aftermath of that decision, the Article 29 Working Party, the organisation that represents the data protection authorities of the European Union, set 31 January 2016 as the deadline by which the representatives of the European Union and the United States had to find solutions to address the significant … Read more

Yockey Headshot

Entity Choice and Anti-Corruption Compliance

Entrepreneurs are sometimes guilty of letting compliance slip down their list of priorities. They prefer to “move fast and break things”—an ethos that doesn’t always find time for bureaucratic niceties like employee handbooks and contracting guidelines.[1]

This dynamic raises issues on numerous fronts, but of particular concern to me is what it means for anti-corruption compliance. As American entrepreneurial activity continues to permeate developing economies, many of the most promising markets in Europe, South America, and Asia feature widespread corruption. Actions as simple as subscribing to Internet service or receiving goods through customs often come part and parcel with … Read more

Choi, Erickson, Pritchard

Piling on? An Empirical Study of Parallel Derivative Suits

When it comes to corporate litigation, is more necessarily better? The legal system has developed a broad array of litigation options to address corporate wrongdoing. Under state law, shareholders can file a derivative suit or class action alleging that directors and officers breached their fiduciary duty. Under federal law, shareholders can file a securities class actions alleging that the directors and officers misled the market. These private lawsuits are often filed alongside government enforcement actions brought by the Securities & Exchange Commission, the Department of Justice, or state regulators.

In our article, Piling On: An Empirical Study of Parallel Derivative Read more

Wachtell Lipton discusses Short-Term Investors, Long-Term Investments, and Firm Value

A January 2016 study, Short-Term Investors, Long-Term Investments, and Firm Value, by Martijn Cremers, Ankur Pareek and Zacharias Sautner, provides substantial “empirical” evidence for the fact that, in the current corporate governance environment, short-term investors possess the undue ability to pressure companies into maximizing near-term gains at the expense of long-term growth.

The study finds that after short‐term investors become shareholders of companies, those companies tend to decrease spending on R&D, and tend to experience temporarily increased earnings and stock prices. The results further indicate that when the short-term investors leave, these trends are all reversed, “so that … Read more

Jeffus and Krigman

IPO Pricing as a Function of your Investment Banks’ Past Mistakes: The Case of Facebook

On May 18, 2012 Facebook (FB) held its initial public offering (IPO) on NASDAQ, raising over $16 billion making it one of the largest IPOs in history. To the surprise of many investors, there was almost no underpricing, as the stock closed the first day of trading almost flat from its offer price. The IPO was described as not only disappointing but also detrimental to the broader market in the financial press. The “failed” FB IPO was blamed for causing everything from mutual funds’ declines in assets under management to significant increases in IPO underpricing, to subsequent canceled IPOs. We … Read more

Arthur Gallagher discusses Study of 2014 Short- and Long-Term Incentive Design Criterion

In order to investigate what (and how much) is being reported in annual proxy statements about executive pay packages and how incentive pay is designed, Arthur J. Gallagher & Co.’s Human Resources & Compensation Consulting Practice (formerly James F. Reda & Associates a Division of Gallagher Benefit Services, Inc.), has conducted a study of the 2015 annual proxy statement disclosures for 200 of the top U.S. companies (based on revenue and market capitalization). This is the seventh consecutive year we have conducted this in-depth analysis for the top-200 public companies.

It has been almost five years since the Dodd-Frank Wall … Read more

Gennaro Bernile, Vineet Bhagwat, P. Raghavendra Rau

What Doesn’t Kill You Will Only Make You More Risk-Loving: Early-Life Disasters and CEO Behavior

During most of Steve Job’s tenure as CEO of Apple Inc. the company did not have any long-term debt obligations. Apple started an aggressive buyback program only after Tim Cook took over, at the same time that it added debt to its capital structure. Coincidentally, San Francisco, where Steve Jobs was born, experienced more disaster-related fatalities during Jobs’ formative years than Tim Cook’s birthplace of Mobile, Alabama. Could this anecdote be indicative of a deeper pattern, where personal experience of traumatic events shapes how a person views financial risk-taking?

A manager’s ability to assess and cope with risk has pervasive … Read more

Gibson Dunn discusses The End of M&A “Disclosure-Only” Settlements With Broad Releases in Delaware

On January 22, 2016, Chancellor Andre Bouchard of the Delaware Court of Chancery issued an important decision in In re Trulia, Inc. Stockholder Litigation—likely hammering the final nail in the coffin of “disclosure-only” settlements with broad releases of liability in M&A stockholder lawsuits in the Court of Chancery.  There could, however, be an increase in “mootness fee” applications resulting from stockholder lawsuits that are voluntarily dismissed following any supplemental disclosures defendants may voluntarily provide.  Stockholder plaintiffs (and their lawyers) may use this vehicle to continue filing lawsuits challenging M&A transactions, albeit not in the same volume that has been … Read more

CEO Power Author Photo

CEO Power, Government Monitoring, and Bank Dividends

In September 2007, Northern Rock, a British bank, sought and received liquidity support from the Bank of England because of financial difficulties resulting from the global financial crisis. As a result of mounting political pressure that Northern Rock was exploiting taxpayers’ money to pay its shareholders, the bank decided to scrap a £59m interim dividend payout, which had been announced before the beginning of the crisis (Financial Times, 2007).

Recent academic literature (Acharya et al., 2011; Onali, 2014) shows that banks in financial distress pay dividends to exploit government support, and this results in a transfer of bank default risk … Read more

Akin Gump explains FTC’s Revised Hart-Scott-Rodino Thresholds

On January 21, 2016, the Federal Trade Commission (FTC) announced the latest annual revision to the size thresholds governing premerger notification requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, Section 7A of the Clayton Act, 15 U.S.C. § 18a (the “HSR Act”).[1] The HSR Act requires parties to transactions meeting certain size and other tests to file premerger notification forms with both the FTC and the Department of Justice Antitrust Division and observe a mandatory waiting period prior to closing. The new thresholds will apply to transactions consummated on or after the effective date, which is 30 … Read more

John Coffee, Headshot

Hedge Fund Activism: A Guide for the Perplexed

The message of the Dow/DuPont merger and split up is simple: No firm is today “too big to target.” Activists can see the transaction as evidence that, even in the rare case where they lose a proxy fight (as they did at DuPont last year in a squeaker), the handwriting is still on the wall, and their game plan, if appealing, will ultimately prevail.  Even though Trian could not win a majority vote to seat its candidates on the DuPont board, it held onto its stake, and the DuPont board quickly ditched their CEO in the wake of that fight … Read more

Davis Polk explains SEC’s Proposal of New Transparency Requirements for NMS Stock Alternative Trading Systems

On November 18, 2015, the Securities and Exchange Commission (“SEC”) proposed amendments (the “Proposal”) to Regulation ATS and related rules under the Securities Exchange Act of 1934 (the “Exchange Act”) to impose extensive new transparency requirements on, and greatly increase the SEC’s active oversight of the design of, alternative trading systems (“ATSs”) that facilitate transactions in National Market System stocks (generally, exchange-listed equities) (“NMS Stock ATSs”).

The extensive level of disclosure that would be required under the Proposal and the SEC’s ongoing involvement in approving or reviewing the design and … Read more

Weber and Yang

The Debt-Equity Choice When Securities Regulations are Scaled by Equity Values: Evidence from SOX 404

Section 404 of the Sarbanes-Oxley Act of 2002 (SOX 404 hereafter) and the associated implementation guidance require firms’ management and independent financial statement auditor to formally document, test, and report publicly in the annual Form 10-K on the effectiveness of internal controls over financial reporting. The costs of complying with this requirement are substantial and include a significant fixed component, making them particularly burdensome for small firms (e.g., Engel et al. 2007; Kamar et al. 2007; SEC 2009; Alexander et al. 2013). As a result, the Securities and Exchange Commission (SEC) delayed the implementation of SOX 404 several times for … Read more

Robert W. Gomulkiewicz

Reasons for Reasonable Covenants-Not-To-Compete

Large and small technology-creating businesses rely on trade secret law to protect strategic information. Lawyers recommend a variety of legal tools to protect trade secrets, including tools that allow firms to share secrets as safely as possible. One of those tools is an employee covenant-not-to-compete (“non-compete”). Non-competes are controversial because they restrain an employee’s freedom to earn a living and restrict so-called “knowledge spillovers” between technology businesses that affect the pace and magnitude of innovation. A few states ban the enforcement of non-competes[1] but most enforce them to the extent they are reasonable.[2] As such, “reasonableness” provides the … Read more

McDermott Will & Emery discusses ISS Issuance of Acceptable Parameters for Proxy Access Provisions

Institutional Shareholder Services Inc. (ISS) recently issued, in the form of Frequently Asked Questions, a further update to its 2016 proxy voting guidelines to outline the types of management-sponsored proxy access provisions that ISS will deem responsive to shareholder-supported proxy access proposals, and those that ISS will deem too restrictive of shareholders’ ability to nominate director candidates or propose other items of business at annual shareholder meetings through the company’s proxy statement. With more than 90 shareholder proposals made at annual meetings in 2015 (more than 50 of which received majority support), proxy access has gained considerable momentum and … Read more