Sky Blog
With the rise of investing based on environmental, social, and governance (ESG) factors has come controversy. While some see ESG investing as a way to create sustainable shareholder value,[1] others view it as a means for advancing contested values …
As the threat of an unprecedented default in U.S. government debt plays out over the coming months, the United States is in uncharted territory. And so are directors and management teams at corporates, whether public or private. While there have …
Regulation A (Reg A) offerings were revamped under the Jumpstart Our Business Startups Act (JOBS Act) in 2012 to increase the maximum offering size of exempt securities from $5 million to $50 million.[1] However, despite this potential source of …
From employee protection to consumer safety, risk management is a central daily duty of corporate management and has become top of the oversight agenda for corporate boards. While managers remain in charge of day-to-day risk management, the board’s oversight role …
In business schools, managers are taught to maximize the net present value (NPV) of future cash flows. In the real world, managers consistently ignore this advice. When asked, they repeatedly say they maximize earnings per share (EPS). “Firms view earnings, …
The Supreme Court has made it easier to challenge the constitutionality of administrative tribunals housed at federal agencies. On April 14, 2023, the Court unanimously held in Axon Enterprise, Inc. v. Federal Trade Commission that parties subject to enforcement actions …
For nearly 40 years, scholars have debated whether business lawyers add value to transactions. The debate essentially started with an influential article by Professor Ronald Gilson, who characterized business lawyers as “transaction cost engineers.” These engineers optimize the costs of …
On April 3, 2023, the Consumer Financial Protection Bureau (“CFPB”) issued a policy statement regarding what constitutes an “abusive” act or practice (the “Policy Statement”).[1] The Policy Statement outlines the CFPB’s approach to analyzing whether an act or practice …
The best way out of the bank stability problem revealed by the run on Silicon Valley Bank – but spreading to other banks – may be a new style of prime money market fund (“MMF”) that, unlike existing prime MMFs, …
Good morning, Chairman McHenry, Ranking Member Waters, and members of the Committee. Thank you for inviting me to testify today. As is customary, I will note that my views are my own, and I am not speaking on behalf of …
In the corporate law community, we too often claim that good corporate governance is a competitive advantage. But what is the social-science evidence for that claim?
We warn clients about Caremark and other sources of liability for poor corporate governance. …
On February 15, 2023, the SEC proposed a sweeping new rule (Proposed Rule) which would replace current Rule 206(4)-2 (Custody Rule) under the Investment Advisers Act of 1940 (Advisers Act or Act). The Custody Rule was originally adopted in 1962 …
The SEC has proposed mandating climate disclosure to meet investor demand for information about the environmental risks firms face and managers’ plans to mitigate their firms’ environmental impacts. Yet critics worry that the proposed mandate would increase risks of litigation …
We previously reported on the Supreme Court’s grants of certiorari in SEC v. Cochran and Axon Enterprise, Inc. v. FTC, in which the Court agreed to consider whether federal district courts have jurisdiction to hear constitutional challenges to the …
The tremendous growth of institutional investors, particularly large passive funds, has drawn attention to their role in corporate governance. Major investment advisers such as BlackRock, Vanguard, and State Street are among the largest shareholders in many publicly traded firms and …
In a lengthy opinion made public two weeks ago, the FTC, by a vote of 4-0, determined that Illumina’s acquisition of GRAIL may substantially lessen competition in a market for the “research, development, and commercialization of MCED [multi-cancer early detection] …
A key principle of Chapter 11 corporate reorganizations is the “absolute priority rule.” It requires that the claims of a dissenting class of creditors be paid in full before any stakeholders in a class junior to such dissenting …
Today [April 14], the Commission is considering whether to issue a supplemental release to our January 2022 proposal requiring significant trading platforms—including in the Treasury markets—to come under important rules for the markets. I believe this supplemental release would help
The sudden collapse of Silicon Valley Bank (SVB) surprised many investors and industry experts, given the bank’s recent accolades and long-standing reputation as one of the best national and regional banks in the U.S.[1]Moreover, there had been no …