Good evening, and thank you, Didier [Cahen, Secretary General, Eurofi], for your kind introduction and for your leadership in organizing this conference.[1]
It is a pleasure to join you in this beautiful part of the world, a UNESCO World
Delaware General Corporation Law § 220 permits shareholders to inspect a corporation’s books and records for a proper purpose, such as investigating managerial misconduct, valuing shares, or communicating with other shareholders. The Delaware case law interpreting this statute has created …
The EU’s Corporate Sustainability Reporting Directive (“CSRD”) is a new framework that requires companies to include a large body of sustainability information in their annual reporting, in accordance with the detailed European Sustainability Reporting Standards (“ESRS”), combined with external “assurance” …
Over the past four decades, the share of U.S. public firms held by institutional investors who concurrently invest in other firms within the same industry – common ownership – has increased fivefold. While some argue that common ownership has anticompetitive …
On June 6, 2023, the Public Company Accounting Oversight Board (PCAOB), the nonprofit corporation established by Congress to oversee the audit of public companies, proposed new auditing standards designed to further its “investor-protection mandate.”[1]These standards, if adopted, would …
Companies’ diversity and inclusion (D&I) practices have attracted widespread attention and support from investors, policymakers, and the public. Yet while they may advance social justice, these practices’ impact on a company’s operations remains unclear.
Conventional wisdom is that a diverse …
When assessing the legality of actions by boards of directors, corporate officers, and shareholders, judges use five standards of review: the business judgment rule, Unocal, Revlon, the entire fairness standard, and, to some degree, Blasius.[1]
These …
With (minority) shares now concentrated in the hands of a relatively small number of institutions, institutional investors are expected to play an ever-increasing role in the governance of listed companies worldwide. However, it is uncertain whether institutional investors can actually …
Good evening, and thank you, Didier [Cahen, Secretary General, Eurofi], for your kind introduction and for your leadership in organizing this conference.[1]
It is a pleasure to join you in this beautiful part of the world, a UNESCO World
In West Virginia v. EPA, the Supreme Court expanded the reach of the major questions doctrine (MQD) by reframing it as a substantive canon and clear-statement rule rooted in both the Constitution’s separation of powers and “a practical understanding …
Recently, the whole of the U.S. government has showcased its commitment to addressing the national security implications of certain corporate activities. On September 11, 2023, the U.S. Department of Justice (DOJ) tapped its first National Security Corporate Enforcement Chief. The …
In the face of competitive pressure, is there a trade-off between a company’s financial performance and its commitment to environmental, social, and governance (ESG) activities? Is ESG a source of competitive advantage, or do managers simply spend other people’s money …
Good morning, Chairman Brown, Ranking Member Scott, and members of the Committee. Thank you for inviting me to testify today. As is customary, I’d like to note that my views are my own as Chair of the Securities and Exchange
Corporate law – and judicial application of that law – considers two facets of a transaction: (1) whether a corporation’s management used processes that are fair to stockholders to reach its decision (“process”), and (2) whether the economic results of …
On August 23, 2023, the U.S. Securities and Exchange Commission (“SEC”) adopted new rules under the Investment Advisers Act of 1940 (the “Advisers Act”) that will significantly impact private fund advisers (the “Final Rules”). …
Over the past 25 years, there has been a significant evolution in businesses’ obligations both to combat corruption and to respect human rights. The late-1990s saw the emergence of a global anti-corruption norm, which resulted in the 2003 United Nations …
The Antitrust Division of the U.S. Department of Justice (DOJ) and Federal Trade Commission (FTC) recently released a draft overhaul of their merger guidelines. The merger guidelines are intended to describe how the agencies evaluate mergers and reach decisions on …
In recent years, certain CEOs have gained remarkable prominence and influence not only within the business world, but also in mainstream media. These “superstar” CEOs are portrayed as exceptional, charismatic, and innovative leaders capable of extraordinary financial results. In other …
On August 29, 2023, US federal banking regulators issued a proposal for long-term debt (“LTD”) requirements for certain midsize and larger US banking organizations (the “LTD Proposal”).1 The LTD Proposal is important because it would require many regional and …
Last year marked the 20th anniversary of Congress’ enactment of the Sarbanes-Oxley Act, legislation that arose in response to Enron’s demise and the accounting scandals that followed, and which coincided with the successful and much-heralded prosecution of a …
Thank you, Mr. Chair. The CAT has been expensive, far more costly than anyone imagined it would be. CAT’s considerable costs need to be allocated and no allocation method is ideal. And regardless of which approach we choose, most costs …
During my recent visit to Columbia Law School, Professor John Coffee shared with me a draft of a short article that later appeared in the New York Law Journal.[1] Coffee’s article assessed the prospects in the U.S. Supreme …
On July 27, the three federal banking agencies (the Agencies)[1] jointly proposed changes to the regulatory capital framework applicable to large banks and bank holding companies (the Proposal). The Proposal is the U.S. adaptation of the 2017 revisions to …
In the late 2000s, eight prominent tech firms – including Google, Apple, Intuit, and LucasFilms – were accused of enforcing anti-poaching agreements that stifled worker mobility. The seven publicly listed firms in the group shared a number of directors, and …
On August 24, 2023, in a highly anticipated decision, the Second Circuit in Kirschner v. JPMorgan Chase Bank, N.A. et al. affirmed dismissal of state-law securities claims because the syndicated term loan in question was not a “security” and therefore …
This update discusses shareholder activism activity involving NYSE- and Nasdaq- listed companies with equity market capitalizations in excess of $1 billion and below $100 billion (as of the last date of trading in 2022) during 2022.
Announced shareholder activist activity …
Activism has fully rebounded from the brief pandemic dip, with the past eighteen months seeing increased activity. As we have previously noted, regardless of industry, size or performance, no company is too large, too popular, too new or too successful …
The California legislature returned from summer recess two weeks ago, and two key bills regarding corporate emissions disclosures and climate-related financial risk reporting are being considered and could be sent to the governor’s desk for signature by next month.
Senator …
While environmental, social, and governance (ESG) initiatives undeniably shape corporate reputations and stakeholder perspectives, a crucial question arises: Does the modern workforce truly value these efforts? At one end of the spectrum, critics argue that employees might prioritize job security, …
On August 16, 2023, the U.S. Federal Trade Commission (FTC) announced that it had simultaneously sued and approved a settlement (a consent order) related to the proposed acquisition of EQT Corporation by funds managed by Quantum Energy Partners (Quantum). The …
In recent years, Environmental, Social, and Governance (ESG) themes have taken center stage in the business world. As of October 2022, 8,000 firms globally have aligned themselves with the United Nations Framework Convention on Climate Change’s Race to Zero campaign, …
The historical trajectory of business entities is a testament to the intricate interplay between societal structures, technological advancements, and economic imperatives. From the rudimentary partnerships of early civilizations to the sophisticated joint-stock corporations of the 17th century, the evolution of …
The world of startups often appears to embody the exceptionalism of modern finance, with funds swiftly flowing to the best teams and ideas wherever they may emerge. The reality, however, is much more complicated. Financing startups remains a daunting challenge …
Today [August 23], the Commission is considering final rules related to private fund advisers. I am pleased to support this adoption because, by enhancing advisers’ transparency and integrity, we will help promote greater competition and thereby efficiency in this important
While environmental, social, and governance (ESG) ratings provide useful information to stakeholders, it’s unclear whether firms care about them. On the one hand, ESG activities may not align with the traditional goal of maximizing shareholder wealth. Further, ESG ratings often …
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Actively managed mutual funds invest with the goal of outperforming a benchmark index or achieving an investment objective. Many academic studies focus on whether mutual funds outperform benchmark returns and debate whether abnormal returns can be attributed to skill or …
Institutional investors with long-term horizons, referred to as dedicated institutional investors, have a positive impact on corporate innovation. Studies (e.g., Gormley and Matsa, 2016; Jiang and Yuan, 2018; Kim, et al. 2019; Kedia et al., 2020) have consistently documented that …
On August 10, 2023, the Second Circuit handed down its highly anticipated decision in Arkansas Teacher Retirement System v. Goldman Sachs Group, Inc.[1] The court reversed the district court’s decision to certify a class action and remanded with …
In the 90 years since the passage of the Securities Exchange Act, the number of ways market participants can publicly disseminate statements to investors has skyrocketed. Yet no regulator, legislator, or judge has answered a fundamental question: Should the law …
Information disclosed by corporations plays a fundamental role in shaping asset prices and the expectations of investors. That information typically comes in financial statement releases, conference calls, annual reports, and the news media. In a recent paper, though, we …
A tremendous amount of capital has already been committed to environmental, social, and governance (ESG). With it has come mounting concern over monitoring and guiding the proper integration of ESG into firms. ESG integration is not straightforward due to the …
Thank you, Secretary Yellen. Thank you to all of my colleagues—not only at this table but around the globe—for their hard work putting an end to the London Interbank Offered Rate (LIBOR)
LIBOR was an innovation of the 1970s to
It is de rigueur to label everything as sustainable – including in private equity. In a new working paper, we examine the claims of the top 100 private equity firms in the United States as to their committment to ESG. …
Investors of RBS Securities Inc.’s multi-billion 2007 subprime mortgage-backed security offering – Soundview Home Loan Trust 2007-OPT1 – will soon be eligible to receive payment from the SEC’s $153.7 million fair fund.
The SEC first commenced its case in 2013 …
On July 31, U.S. District Judge Jed Rakoff in New York decided a case with significant implications for how and even whether the Securities and Exchange Commission can regulate cryptocurrencies as a security. His decision contrasts sharply with a ruling …
On July 26, 2023, the U.S. Department of Justice’s National Security Division (“NSD”), the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”), and the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) issued a Tri-Seal …
Sign up for an investment account, and you will likely be presented with a dizzying range of investment products. The industry caters to investors with different risk appetites, savings pots, time horizons, ESG outlooks, religious commitments, and more. In some …
High CEO pay in the United States has fueled repeated calls for enhanced disclosure of chief executives’ compensation. For example, in 2015 the SEC received over 285,000 comment letters supporting its proposed rule to require disclosure of CEO-employee pay ratios. …
On July 27, 2023, US federal banking regulators issued proposals to (i) significantly revise the risk-based regulatory capital requirements for certain midsize and larger US banking organizations (the “Capital Proposal”), and (ii) change the method for calculating the capital surcharge …
In a new paper, we examine the extent to which cross-border M&A is influenced by tax avoidance motives and quantify the resulting tax savings.
Firms employ tax avoidance strategies like profit shifting or the relocation of their tax residence to …
It is no secret that American corporations face vigorous — and often conflicting — demands concerning diversity, equity and inclusion (DEI) initiatives. Over the past year, DEI initiatives and commitments have come under pressure in the face of macroeconomic headwinds, …
In the past few years, the economies of developing countries and emerging markets have been upended by the once-in-a-century COVID-19 pandemic and the fallout from the war in Ukraine. As a result, these economies have suffered from a array of …
On July 18, 2023, Federal Reserve Vice Chair for Supervision Michael Barr cautioned banks against fair lending violations arising from their use of artificial intelligence (AI). Training on data reflecting societal biases; data sets that are incomplete, inaccurate, or nonrepresentative; …
The debate over short-term thinking at corporations has so far focused largely on companies in the U.S. and the UK. The fact that controlling shareholders are less common in those countries than in many others may explain why the extensive …
On July 12, 2023, the Securities and Exchange Commission (the “SEC”) voted 3 to 2 (Commissioners Peirce and Uyeda dissenting) to adopt certain amendments to rules and forms under the Investment Company Act of 1940 (the “Investment Company Act”) intended …
Financial statement fraud has many negative effects, including a reduction in people’s willingness to participate in the stock market. It may also cast accountants in a negative light because they prepare and audit financial statements – sometimes even fraudulent ones. …
CEOs and institutional investors have increasingly embraced Environmental, Social, and Governance (ESG) considerations and used them in deciding where to invest. According to the Sustainable Investment Forum, the value of U.S. sustainable assets rose from $6.6 trillion in 2014 to …
Two recent indictments highlight the Department of Justice’s (DOJ’s) continuing use of the traditional wire fraud, money laundering and identity theft statutes to pursue fraud involving digital assets, indicating that law enforcement will look to prevent theft and scamming regardless …
Environmental and social (E&S) considerations have become integral to investment decisions in the past two decades, and more public firms are making E&S disclosures. Meanwhile, dozens of ESG reporting frameworks have emerged, and many jurisdictions have issued or are in …
The Public Company Accounting Oversight Board (PCAOB) has proposed changes to its auditing standards that would significantly expand auditors’ responsibilities and oversight of a company’s noncompliance with laws and regulations. If adopted as proposed, the rules would require auditors to …
FINRA, the self-regulatory organization (SRO) responsible for overseeing broker-dealers in securities markets, now faces constitutional scrutiny about its structure, enforcement proceedings, and sanctions. In July, Judge Justin R. Walker of the U.S. Court of Appeals for the D.C. Circuit issued …
On July 27, 2023, the federal banking agencies released a lengthy proposal to revise the capital rules applicable to large banks and bank holding companies. The headline news is that the banking agencies expect the proposal to increase capital requirements …
In a forthcoming chapter, we explore the duality of corporate purpose, which reflects two sides of corporate law and governance. First, because each corporation must specify a purpose in its charter, corporate purpose can be understood at the level of …
The U.S. Treasury Department and the Financial Crimes Enforcement Network (FinCEN) are in the midst of drafting regulations to implement the anti-money laundering (AML) whistleblower program. The program, established in 2021 by the AML Act of 2020 and reformed in …
Corporate governance can play an important role in a company’s approach to machine learning technologies such as artificial intelligence (“AI”) and in the mitigation of risks associated with their use.
A thoughtfully developed governance structure for AI will reflect oversight, …
Financial crises are often followed by debates about whether bankers’ incentives helped create distress in the financial sector. We contribute to this debate by documenting the extent to which bankers’ pay contains prudence-related targets, the association between those targets and …
Today [July 26], the Commission is considering adopting final rules regarding cybersecurity disclosures by public companies. I am pleased to support these rules because they will enhance and standardize disclosures to investors with regard to public companies’ cybersecurity practices as
Thank you, Chair Gensler. Although better than the proposal, this final cybersecurity disclosure rule continues to ignore both the limits to the SEC’s disclosure authority and the best interests of investors. Moreover, the Commission has failed to explain why we
Perhaps the most important current development in corporate governance is the growing divide between the United States and the European Union on core questions of fiduciary duty when it comes to ESG. I want to describe this growing divide, to …
On June 6, 2023, the U.S. Public Company Accounting Oversight Board (the “PCAOB”) proposed amendments to its auditing standards that would increase auditor obligations in identifying, evaluating and communicating with respect to noncompliance with laws and regulations (“…
How do the corporate laws of Global South jurisdictions differ from their Global North counterparts? Prevailing stereotypes depict the corporate laws of developing countries as either antiquated, mere copies of Global North models or plagued by problems of enforcement. While …
A bipartisan bill introduced in the U.S. Senate two weeks ago seeks “to bring crypto assets within the regulatory perimeter” by granting oversight responsibility to the Commodity Futures Trading Commission (CFTC) for most forms of cryptocurrency.
The new bill, sponsored …
Earnings conference calls are an important way for firms to communicate with external stakeholders. Equity shareholders, buy-side and sell-side analysts, debtholders, and other capital market participants view the calls as informative beyond the contemporaneous earnings announcements. Yet, little is known …
The Department of Justice Antitrust Division and Federal Trade Commission issued new draft Merger Guidelines on July 19 that aim to significantly increase scrutiny of merger activity. The new Merger Guidelines would replace prior pronouncements of antitrust policy from the …
On June 27, 2023, the Delaware Court of Chancery in Simeone v. The Walt Disney Company held that a stockholder’s disagreement with a corporation’s decision to speak on public policy did not constitute a “proper purpose” for making a books …
In view of the attacks on “woke” corporations, ongoing legislative opposition to the consideration by investors and corporations of environmental, social and governance (ESG) issues, legal challenges to elements of ESG itself (notably, initiatives designed to further diversity, equity and …
Despite an increasing focus on corporations that profit from social injustices and misconduct, governments and international agencies have had limited success in addressing these issues. Advocates for change suggest that stakeholders, particularly retail consumers, could help, given that their purchasing …
Last Thursday’s split summary-judgment decision in the case that the Securities and Exchange Commission (SEC) brought against Ripple Labs, Inc. (Ripple) and certain of its senior leaders is bonkers. In partly holding for the defendants, the opinion ignores well established …
On July 13, Judge Analisa Torres handed down a long-awaited decision in SEC v. Ripple. Crypto enthusiasts immediately began celebrating the opinion as holding that XRP, the Ripple token, was not a security. Others welcomed the finding that certain …
During the past decade, many corporations across the globe have issued green bonds – which are identical to traditional corporate bonds except that their proceeds are dedicated to environmental and climate-friendly corporate investments. Since they were first created in 2013, …
As was true last year, the recently completed Supreme Court Term was marked by several high-profile and contentious decisions in which a conservative 6-to-3 majority, for example, ended race-conscious affirmative action in higher education, scuttled President Biden’s student debt relief …
In a new book, I discuss “investment crowdfunding” (also known as “equity crowdfunding” or “securities crowdfunding”), an inclusive new type of online venture capital market – it’s like Kickstarter, except you get a share of stock. More formally, …
There have been 12 proxy contests that have gone to a vote under the SEC’s universal proxy rules, which became effective on September 1, 2022. A review of these contests reveals several themes.
Overall Results: Activists obtained a board seat …
Today [July 12], the Commission is considering adopting final rules to enhance money market funds’ liquidity and investor protection. I support this adoption because it will enhance these funds’ resiliency and ability to protect against dilution.
Money market funds—nearly $6
In recent years, integrity oaths have gained popularity as a tool to reinforce ethical behavior among executives and professionals. However, little is known about the impact of these oaths on firms’ financial reporting quality. We answer this question using data …
Based on his recent speech to the Society for Corporate Governance, it certainly seems as if SEC Commissioner Mark Uyeda would welcome an end to shareholder proposals. He proposes ideas that would empower companies to limit severely how shareholders could …
In March 2022, the U.S. Securities and Exchange Commission (SEC) proposed a rule requiring public companies to make certain climate-related disclosures as part of their securities filings.[1] The rule has been highly controversial, generating thousands of comment letters in …
On June 27, 2023, the U.S. Supreme Court voted 5-4 in Mallory v. Norfolk Southern Railway Co. to uphold a Pennsylvania law that requires out-of-state corporations that register to do business in Pennsylvania to consent to be sued there in …
Environmental, Social, and Governance (ESG) investing has drawn a lot of attention over the past decade, but the extent to which institutional investors have altered their perspective on ESG, as evidenced by their voting and portfolio decisions, remains unclear. In …
The Recovering Executive Compensation Obtained from Unaccountable Practices (RECOUP) Act, designed to hold senior executives at banking organizations accountable, has broad and unusual bipartisan support, passing out of the Senate Banking Committee by a 21-2 bipartisan vote. As the bill …
Quarterly earnings guidance is a controversial practice. Critics say it can cause companies to focus on short-term profits, while others argue that it sets reasonable market expectations and enhances stock liquidity while reducing stock volatility and earnings uncertainty. One type …
Over the last two decades, firms have been under growing pressure from investors, business leaders, and activists to increase female and minority representation on boards of directors. First adopted by Norway in 2003, regulations relating to boardroom gender diversity have …
As public interest and scrutiny into environmental, social and governance (ESG) issues continue to rise, companies face an ever-evolving landscape relating to their ESG disclosures. The Securities and Exchange Commission (SEC) has proposed rules that could require increased ESG disclosures. …
The Securities and Exchange Commission’s recent actions against Binance and Coinbase show that the commission is worried about the business model of crypto-trading platforms. In its complaint against Binance, for example, the SEC expressed concerns about the offering of “three …
On June 27, 2023, the Federal Trade Commission (FTC) issued a Notice of Proposed Rulemaking (NPRM) to amend the Hart-Scott-Rodino Act (HSR) Form and Instructions.1 According to FTC Chair Lina Khan’s accompanying statement, the NPRM is the result of …
In a new book, I argue that the conversation about diversity in corporations (legal rules, policy discussions, academic writing, and media narratives) is missing some vital pieces. This means that we are making rules without understanding the full picture …
Today [June 27], the Federal Trade Commission, with the collaboration and concurrence of the Department of Justice’s Antitrust Division, is issuing a Notice of Proposed Rulemaking (“NPRM”) to amend the Hart-Scott-Rodino (“HSR”) Form and Instructions.1 This marks the first time
The European Union and U.K. are establishing comprehensive regimes for the regulation of cryptoassets. The Markets in Crypto-Assets Regulation (MiCA) was published in the Official Journal of the European Union on June 9, 2023, and will come into force on …
Knowledge spillovers between firms are a key driver of important economic phenomena such as technological progress (Griliches, 1979), growth in international trade (Grossman and Helpman, 1991), and industrial innovation (Bloom, Schankerman, and Van Reenen, 2013). Although prior research has examined …
An increasing number of consultancies, financial technology firms, data providers, and investment advisory groups offer information about localized physical climate risks like floods, hurricanes, and wildfires. In recent years, mainstream financial services companies have acquired many of the early climate-analytics …
Thank you, Christina [Maguire], for that introduction and congratulations on becoming President and CEO of the Society [for Corporate Governance] (the “Society”) this past January. I would like to start by recognizing Darla Stuckey, who retired in April [2023] and
The legal industry is on the brink of transformative change driven by the power of generative artificial intelligence (GAI) technologies such as ChatGPT. Goldman Sachs has predicted GAI could propel a 7 percent (or almost $7 trillion) increase in global …
Sixty years ago, the Supreme Court handed down its decision in United States v. Philadelphia National Bank.[1] Today, I would like to discuss the enduring impact of this landmark case.
Philadelphia National Bank is well known in banking
For decades, companies have expressed support for the idea that their organizations should increase their demographic diversity while establishing a culture of inclusion. In practice, these firms have generally been unsuccessful. The challenge presented when attempting to match the diversity …
Earlier this week, the New York State legislature passed a bill banning all non-competes entered into on or after 30 days past the bill’s enactment, including those entered into by employees or in connection with the sale of a business. …
On June 1, the Ninth Circuit en banc in Lee v. Fisher issued a consequential decision calling into question the scope of the implied right of action recognized by J.I. Case Co. v. Borak and creating a stark split with …
Good morning. I’m pleased to speak with the Investor Advisory Committee. As is customary, I’d like to note that my views are my own as Chair of the Securities and Exchange Commission, and I am not speaking on behalf of
Since 2000, of the total number of private firms that have gained access to the equity markets for the first time, more have done so through acquisition by another firm (public or private) than through an initial public offering (IPO). …
As part of its declared focus on fostering competition in the labor market, the Federal Trade Commission (FTC) has proposed to ban most noncompetition agreements, or noncompetes, restricting the activities of former employees. Noncompetes can be a useful tool for …
Substantively, banks are pooled investment funds, like mutual funds, exchange traded funds, and so on: They take people’s money and use it to buy financial assets. There is one crucial difference, however. In those other funds, losses are immediately passed …
On June 7, 2023, the Securities and Exchange Commission (the “SEC”) adopted amendments to Regulation M, replacing the investment-grade exceptions for non-convertible debt or preferred equity securities with credit risk exceptions based on a specified probability of default threshold assessed …
To some extent, this is another collection of words about an acronym that collects words, in the largely passive and meaningless manner of a lint roller. Elizabeth Pollman recently developed a deft history of the acronym ESG, which stands for …
Since the launch of ChatGPT in November 2022, there’s been an exponential surge in the use of generative AI tools. Anecdotal evidence suggests that these tools are also of considerable interest to financial firms. As a case in point, Ken …
On June 2, the Chairs of the House Committees on Financial Services and Agriculture jointly released an ambitious discussion draft of new legislation aimed at filling the persistent gap in regulation of spot cryptoasset markets and to resolve lingering uncertainty…
Among the various types of AI-generated works that are being created and marketed nowadays are works that replicate the sound or visual images of specific artists. In many cases, these works, or the models or tools that helped generate them, …
Fueled by the landmark decision in Citizens United, which granted corporations essentially the same political speech rights as humans, corporations continually attempt to control political outcomes, ostensibly to promote shareholder value.[1] During the 2022 election cycle, corporations and business …
Crypto is at a crossroads. After a cascade of bankruptcies – including FTX’s implosion – millions of defrauded customers, and trillions of dollars in value destruction, many are wondering whether the sector has a future. Amidst the wreckage, after years …
The SEC has approved the clawback listing standards of the New York Stock Exchange and Nasdaq. As noted previously, the clawback listing standards will take effect on October 2, 2023, and listed companies will have until December 1, 2023 to …
The recent banking turmoil in the U.S. and Europe has led to calls for greater accountability for bank executives. These include an extraordinary statement from President Joe Biden on the need to hold senior executives accountable for bank failures. Similar …
Earnings announcements serve a well-recognized role of conveying important information about firm performance to the market. However, an often-overlooked role of earnings releases is their ability to discipline market expectations.
Our study examines this disciplining role in the context of …
On June 1, 2023, the Ninth Circuit held en banc that a forum selection clause requiring all derivative claims to be brought in Delaware state court—including federal securities claims that can only be maintained in federal court—is enforceable and requires …
In a recent paper, we examine whether listed bank holding companies (BHCs) that are small enough to stay private are riskier than private BHCs that are large enough to go public but have opted not to do so.
Some …
The runs on Silicon Valley Bank (SVB) and Signature Bank in March 2023 created a “very high” risk of contagion in the U.S. banking system, according to Treasury Department officials. The intervention by banking regulators, using tools approved in response …
Audit firms’ risk of being sued has historically been an important factor driving audit quality and firm valuation in U.S. capital markets. Investors have traditionally targeted auditors in class action suits as “deep pockets” with a greater ability to pay …
Today [June 7], the Commission is considering adopting two final rules related to the security-based swaps markets. I am pleased to support these rules because they will enhance the integrity of the security-based swaps markets.
The 2008 financial crisis had
In a recent paper, we explore the engagement practices of public company shareholders and offer several important insights.
First, contemporary shareholder-company engagement is a multi-dimensional and evolving phenomenon with shareholders using, to varying degrees, a wide range of engagement techniques. …
On June 1, 2023, the Supreme Court unanimously held in Slack Technologies v. Pirani that Section 11 of the Securities Act of 1933 requires plaintiffs to plead and prove that they bought shares registered under the registration statement they claim …
Corporate disclosures increasingly include multimedia content such as audio, images, and videos. In fact, as of 2022, 83 percent of U.S. public firms used graphics in annual reports and various other communications. Additionally, companies commonly provide their earnings calls, shareholder …
On May 3, 2023, the Securities and Exchange Commission (the “SEC”) adopted rules to require more detailed qualitative and quantitative disclosure from reporting issuers regarding their share repurchases. While the final rules did not include some of the more onerous …
The board of directors serves as the liaison between shareholders and management; directors monitor and advise management, with the objective of maximizing shareholder value. Shareholders have significant input into the composition of the board via voting. Shareholder votes on directors …
The recent In re Edgio, Inc. Stockholders Litigation decision highlighted concerns when a public company involved in a business combination adopts defensive measures that would continue for a significant period of time post-closing. The court declined to apply Corwin cleansing …
Financial Technology, or “fintech,” is one of the fastest growing sectors in finance. In 2010, the total amount of funding raised by fintech firms was just over $1 billion dollars, while in 2018, total funding was around $40 billion. In …
Investors’ $1 billion tentative settlement – a Top 20 settlement of all time if approved – comes in the wake of years of scandal and resolves allegations that the bank concealed its inability to clean up its act. Prior scandals …
The brutal death of George Floyd in May 2020 put the spotlight on U.S. corporations and their role in fostering diversity, equity, and inclusion (DEI) practices. This rising interest in DEI practices has increased calls from investors and other stakeholders …
On April 19, 2023, the Supreme Court removed two key potential obstacles to the criminal prosecution of foreign states and their agencies and instrumentalities in U.S. courts. In Turkiye Halk Bankasi A.S. v. United States, 598 U.S. __ (2023), …
The proposed 2023 amendments to the Delaware General Corporation Law (DGCL) approved by the Delaware State Bar Association are intended to address a number of practical issues facing corporations and their counsel and to facilitate certain corporate actions. Among other …
Can the tone or sentiment of an SEC comment letter provide a signal to investors about the quality of an underlying firm? In a new study, I examine that question in the context of Reg A filings.[1]
My study, …
As is customary, I’d like to note that my views are my own as Chair of the Securities and Exchange Commission, and I’m not speaking on behalf of my fellow Commissioners or the SEC staff.
High-quality accounting standards are critical for efficient global markets. The most widespread – used in more than 150 countries – are International Financial Reporting Standards (IFRS). The International Accounting Standards Board (IASB) creates and maintains IFRS, which is challenging because …
U.S. banking has always been a risky business. The financial panics of 1819, 1837, 1873, 1907, and 1931-32 all sparked banking crises, recessions, or full-scale depressions. Depositors lost everything every time a bank failed. But the Great Depression was the …
I am pleased to welcome everyone to the Division of Investment Management’s inaugural Conference on Emerging Trends in Asset Management.
As is customary, I’d like to note that my views are my own as Chair of the Securities and Exchange
Financial markets and securities regulation in the European Union and the United States are converging in an increasing number of areas, from the repression of market manipulation to the provision of stricter requirements for market gatekeepers, such as auditing firms …
The rapid adoption of artificial intelligence (AI) technology into corporate environments has left many organizations understandably struggling with how to identify, measure and manage the unique risks of these nascent systems. Organizations are also trying to determine a pathway to …
Large firms today are rarely organized as a single legal entity, but rather as corporate groups with numerous subsidiaries that have separate legal personalities. A debate has long raged over how to treat the legal boundaries between companies belonging to …
The United States legal system is immensely complex. There are state courts and federal courts, state statutes and federal statutes, state common law and federal common law. When I imagine a foreign lawyer trying to explain this system to a
In July 2021, President Biden issued an executive order aimed at promoting competition in the American economy. This development has renewed researchers’ interest in the impact of competition on firm behavior and economic activity. While prior research focused on how …
Good morning. Thank you, Bob [Zukis]. It is a pleasure to be here today, and I thank the Digital Directors Network for hosting this discussion about cybersecurity. This topic is so essential for the safety and resiliency of our capital
Executive compensation and corporate taxation are both hot button issues, but can they be related? In a recent paper, we examine how CEO bonus contracts reinforce global tax incentives and show that executive pay practices helped drive corporate activity …
Appellate courts rejected broad theories of white-collar fraud three times last week.
First, on May 10, 2023, in an opinion by Judge Lynch, the U.S. Court of Appeals for the First Circuit vacated the mail and wire fraud convictions of …
The material adverse effect (“MAE”) definition in mergers and acquisitions agreements is one of the most intensely negotiated, litigated, and studied contract provisions ever. It has nearly tripled in average length over the past two decades, as lawyers haggle over …
As Treasury Secretary Janet Yellen recently observed, the United States has not defaulted on its national debt since its founding in 1789, and we should not start now.[1] She also pointed out that Congress has raised the statutory ceiling …
The January 2023 study “ESG Performance and Enterprise Value: Do Firms with Stronger ESG Performance Have Higher Valuation Ratios?” investigated the relationship between the ISS ESG Performance Score (a normalized version of the ISS ESG Corporate Rating) and two …
The Securities and Exchange Commission (SEC or Commission) is considering proposals that would require public companies to disclose reliable and complete information about the risks of climate change. The Commission’s efforts will fall short, however, unless it addresses the role …
On May 1, 2023, the Delaware Court of Chancery addressed an unsettled question under Delaware law—whether a fully informed, uncoerced vote of disinterested stockholders (so-called “Corwin cleansing”[1]) can be applied to defeat claims to enjoin defensive measures …
Credit Suisse (CS) was sold to UBS on March 19, 2023, to avoid its further deterioration from long-lasting distress and widespread distrust, especially after the collapse of Silicon Valley Bank. The most contentious point of the deal may have been …
Good afternoon. I’m pleased to be back for what I’m told is the fifth time speaking before the International Swaps and Derivatives Association (ISDA). As is customary, I’d like to note that my views are my own as Chair of …
The contraction of the market for special purpose acquisition companies (SPACs) and the recent challenges de-SPACed companies have encountered have attracted considerable press attention. The stocks of many de-SPACed businesses — companies formed by the merger of a SPAC with …
Global supply chains (GSCs) have become increasingly complex and fragmented over the last few decades due to advances in transportation and production technology, economic globalization, and the emergence of multinational corporations (MNCs). Despite their benefits, GSCs present significant risks of …
There is reason to believe the SEC’s new universal proxy Rule 14a-19 will result in more stockholder nominees being elected to the boards of public companies.
First, the rule allows voting stockholders to make their own ad hoc choice of …
In a recent paper, we examine the real effects of disclosure in going private transactions. The number of companies going private has been steadily increasing over the past decade, with a sharp rise during the last couple of years. This …
In the latest setback in the Department Justice Antitrust Division’s (DOJ) attempts to prosecute “no-poach” agreements criminally, a federal judge acquitted from the bench all six defendant employees of aerospace engineering companies alleged to have allocated a labor market by …
The importance of environmental, social, and corporate governance (ESG) is on the rise, with legislators, regulators, and non-governmental actors around the world creating laws and standards on ESG. Though most of the action has occurred in Europe, ESG is gaining …
The Financial Stability Oversight Council unanimously approved two proposals for public comment regarding FSOC’s authority to designate nonbank financial companies for Federal Reserve supervision and regulation, as summarized in our deck. These proposals would reverse key aspects of changes made …
It is a common refrain, mostly on the political right, that considering environmental, social, and governance (“ESG”) factors when investing is probably illegal.[1] The basis for this argument derives from the fiduciary duty of loyalty and its corollary, the …
Eric Talley, Isidor & Seville Sulzbacher Professor and co-director of the Millstein Center for Global Markets and Corporate Ownership at Columbia Law School, was among the authors of one of the 10 best corporate and securities articles last year, the
ChatGPT and artificial intelligence (“AI”) generally might enhance our lives in many ways, but some people fear significant, pernicious outcomes as well. For instance, in a recent poll of 1,000 U.S. business leaders, almost half said their companies had already …
Today [May 3], the Commission considers adopting a final rule amending Form PF, an important tool that the Commission uses to oversee private fund advisers. I am pleased to support the amendments because they will improve visibility into private funds,
Corporate governance scholars to date have focused almost exclusively on the economic impact of corporate control – specifically the diversion and creation of wealth by controlling shareholders (commonly referred to as “tunneling” and “idiosyncratic vision,” respectively). Analysis of the distinctive …
The 1990s was the decade of Michael Jordan and the Chicago Bulls. The Cold War was over. It was the dawn of the internet and the Spice Girls. Seinfeld was on TV. Bill Clinton brought blue jeans and Domino’s delivery …
On March 7, 2017, the eve of International Women’s Day, State Street Global Advisors initiated its “Fearless Girl” campaign, an effort to increase the number of female directors on the boards of its portfolio companies.[1]According to State Street, …
Over the past several years, the use of non-disclosure agreements (“NDAs”) has received significant public scrutiny following their controversial use in a number of high profile harassment claims.[1]
NDAs were back in the headlines earlier this year following the …
One of the primary attractions of cryptocurrency, for libertarians and blackmailers alike, is its relative freedom from the governmental oversight and involvement that comes with traditional currency. Yet this anti-government tilt is a problem where chapter 11, or bankruptcy generally, …
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