What Sitting Commissioners Should and Shouldn’t Do

Posted by Tamar Frankel, Boston University School of Law, on Tuesday January 20, 2015 at 8:38 am
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Editor’s Note: Tamar Frankel is a Professor of Law at Boston University School of Law. This post relates to a paper by Commissioner Daniel Gallagher and Professor Joseph Grundfest, described on the Forum here. An earlier post about this paper by Professor Tamar Frankel, titled Did Commissioner Gallagher Violate SEC Rules?, is available on the Forum here. The Forum also featured last week (here) a joint statement by thirty-four senior corporate and securities law professors from seventeen leading law schools—including at Boston University, Chicago, Columbia, Cornell, Duke, George Washington, Georgetown, Harvard, Michigan, New York University, Northwestern, Stanford, Texas, UCLA, Vanderbilt, Virginia and Yale—opining that the paper’s allegations against Harvard and the SRP are meritless and urging the paper’s co-authors to withdraw these allegations. In addition, the Forum published earlier posts about the paper by Professor Grundfest (most recently here) and by Professor Jonathan Macey (most recently here), and replies by Professor Richard Painter and Harvey Pitt (available here and here) to Professor Frankel’s first post.

In an earlier post (available here), I expressed concerns about Commissioner Gallagher’s decision to issue (jointly with Professor Joseph Grundfest) a paper accusing Harvard University and the Shareholder Rights Project (SRP) of violating securities laws when they assisted investors submitting declassification proposals. Subsequently, a group of thirty-four senior corporate and securities law professors (including myself) issued a joint statement (available on the Forum here). In addition to opining that the allegations in the paper were meritless, the joint statement expressed concerns that a sitting SEC Commissioner has chosen to issue such allegations. However, others have taken the view that sitting Commissioners should be as free as other individuals to express opinions that specific individuals or organizations violated the law. I beg to differ, for the following reasons.

Sitting Commissioners may, and should be encouraged, to publicly discuss policy problems and issues. However, they should avoid publishing accusations against specific individuals or organizations, except as part of the SEC process. Publishing such accusations should not be an acceptable behavior by a sitting SEC Commissioners. That is even though during their tenure, SEC Commissioners are likely to disagree with others about potential legal accusations against specific parties.

So what is wrong with a publication of a Commissioner’s views about possible actions against Harvard University? Most persons could do the same with impunity. The answer is that the Commissioner is bestowed with power to participate in a decision to bring a suit by the SEC. None of us has this power. Yet, the Commissioner’s power is not granted for his own use. The power to participate in these decisions is bestowed on the Commissioner as a fiduciary for the purpose of serving this country and only pursuant to the processes of the Agency.

I hope that this Commissioner and future Commissioners will distinguish between expressing a policy opinion and issuing accusations of legal violations against specific parties. I hope that the discussions and disagreement on this issue will guide future Commissioners’ speeches: Please speak your mind. But do not give any whiff of accusations against specific parties except by following carefully and fully the Commission’s process. Thus, regardless of scholarly and legal arguments, and regardless of the motivation of the Commissioner’s actions, his inappropriate statements are at issue, and I am very sorry he made them.

Changing the Cyber Security Playing Field in 2015

Posted by Paul Ferrillo, Weil, Gotshal & Manges LLP, on Tuesday January 20, 2015 at 8:36 am
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Editor’s Note: Paul A. Ferrillo is counsel at Weil, Gotshal & Manges LLP specializing in complex securities and business litigation. This post is based on a Weil Alert authored by Mr. Ferrillo; the complete publication, including footnotes, is available here.

“If this incident [Sony] isn’t a giant wake-up call for U.S. corporations to get serious about cybersecurity, I don’t know what is. I’ve done more than two dozen speaking engagements around the world this year, and one point I always try to drive home is that far too few organizations recognize how much they have riding on their technology and IT operations until it is too late. The message is that if the security breaks down, the technology stops working—and if that happens the business can quickly grind to a halt. But you would be hard-pressed to witness signs that most organizations have heard and internalized that message, based on their investments in cybersecurity relative to their overall reliance on it.”

— Author Brian Krebs, Dec. 20, 2014.

“For those worried that what happened to Sony could happen to you, I have two pieces of advice. The first is for organizations: take this stuff seriously. Security is a combination of protection, detection and response. You need prevention to defend against low-focus attacks and to make targeted attacks harder. You need detection to spot the attackers who inevitably get through. And you need response to minimize the damage, restore security and manage the fallout.”

— Professor Bruce Schneier, Dec. 19, 2014.

Without a doubt, the last month in the world of cyber security has been tumultuous. It has now been confirmed that two companies in the United States have potentially been the subject of cyber-terrorism. Servers have been taken down or wiped out. Businesses have been significantly disrupted. Personally identifiable employee information has been shoveled by the pound onto Internet credit card “market” sites. The cyber security world has changed. And two of the most respected men in cyber security have both iterated similar messages: it is time for U.S. corporations to take this stuff seriously.

…continue reading: Changing the Cyber Security Playing Field in 2015

If A SEC Commissioner Thinks Someone Is Violating the Securities Laws, He Should Say So

Posted by Richard W. Painter, University of Minnesota Law School, on Monday January 19, 2015 at 11:08 am
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Editor’s Note: Richard W. Painter is the S. Walter Richey Professor of Corporate Law at the University of Minnesota. This post is a reply to a post by Professor Tamar Frankel, titled Did Commissioner Gallagher Violate SEC Rules?, and available on the Forum here. This post and the post by Professor Frankel relate to a paper by Commissioner Daniel Gallagher and Professor Joseph A. Grundfest, described on the Forum here. The Forum featured last week (here) a joint statement by thirty-four senior corporate and securities law professors from seventeen leading law schools, including at Boston University, Chicago, Columbia, Cornell, Duke, George Washington, Georgetown, Harvard, Michigan, New York University, Northwestern, Stanford, Texas, UCLA, Vanderbilt, Virginia and Yale, opining that the paper’s allegations against Harvard and the SRP are meritless and urging the paper’s co-authors to withdraw these allegations. In addition to this joint statement, the Forum featured earlier posts about the paper by Professor Grundfest (most recently here), Professor Jonathan Macey (most recently here), Professor Tamar Frankel (here) and Harvey Pitt (here).

Although I have concerns about the impact of declassified corporate boards (boards that can be replaced by shareholders in a single election cycle) on corporate ethics, I will not weigh in on the substance of that controversy here. The more immediate question is whether a SEC Commissioner, in this case Daniel M. Gallagher, if he believes the federal securities laws are repeatedly being violated in connection with proposals submitted for a shareholder vote on this or any other issue, in this case by investors working with the Harvard Shareholder Rights Project, may and indeed should make a public statement to that effect, or whether the Commissioner is ethically required to remain silent, refer his concerns to the Enforcement Division of the Commission and wait for the official process to run its course. (See New York Times article.)

I am aware of no ethics rule that requires a SEC Commissioner to conceal his thoughts on such matters, and I know of many reasons why those charged with enforcing our laws should be free to speak their mind about private conduct they believe violates the law so long as their interpretation of the law is reasonable. For the police officer, it might be a speech to high school students or a similar venue. For the SEC Commissioner it might be a bar association speech or a publication. Those charged with enforcing the law have a right—and in some contexts an obligation—to tell the public what they believe the law requires.

This controversy arose because of a law review article (discussed on the Forum here) in which Gallagher and former SEC Commissioner Joseph Grundfest argued that over 100 proposals submitted by investors working with Harvard’s Shareholder Rights Project violated federal securities laws because they presented a misleading characterization of academic research on the impact of classified boards on corporate governance.

Some commentators have responded to this allegation on the merits, arguing that the proposals submitted by investors working with Harvard’s Shareholder Rights Project are not materially misleading in their characterization or research on classified boards or in any other way.

…continue reading: If A SEC Commissioner Thinks Someone Is Violating the Securities Laws, He Should Say So

On Ethics, Rhetoric and Civility: A Response to Professor Frankel

Editor’s Note: Harvey L. Pitt is Chief Executive Officer and Managing Director at Kalorama Partners, LLC and former Chairman of the U. S. Securities and Exchange Commission. This post is a reply to a post by Professor Tamar Frankel, titled Did Commissioner Gallagher Violate SEC Rules?, and available on the Forum here. This post and the post by Professor Frankel relate to a paper by Commissioner Daniel Gallagher and Professor Joseph A. Grundfest, described on the Forum here. The Forum featured last week (here) a joint statement by thirty-four senior corporate and securities law professors from seventeen leading law schools, including at Boston University, Chicago, Columbia, Cornell, Duke, George Washington, Georgetown, Harvard, Michigan, New York University, Northwestern, Stanford, Texas, UCLA, Vanderbilt, Virginia and Yale, opining that the paper’s allegations against Harvard and the SRP are meritless and urging the paper’s co-authors to withdraw these allegations. The Forum also published earlier posts about the paper by Professor Grundfest (most recently here) and by Professor Jonathan Macey (most recently here).

One of the many positive attributes of the Harvard Law School Forum on Corporate Governance and Financial Regulation (“Forum”) is that it is democratic. It accepts and posts submissions on its website reflecting a valuable diversity of opinion, philosophy and perspective. Nowhere is this better borne out than in the ongoing back-and-forth discussion regarding a recent, substantively valuable, paper (here) co-authored by SEC Commissioner Dan Gallagher and Stanford Law Professor (and former SEC Commissioner) Joseph Grundfest (summarized on the Forum here). The Paper was critiqued with valuable substantive observations by Professor Jonathan Macey (here, here, and here), some of which were, in turn, responded to by Professor Grundfest (here and here). I foolishly entered this debate on the Forum, acknowledging the valuable insights Professors Grundfest and Macey both were offering, recommending that their continuing debate, and any other contributors to it, focus on the important substance of the Gallagher/Grundfest Paper (here). I had hoped thereby that we all might be spared from certain forms of future commentary (especially of a personal nature) that strayed from the Paper’s and Professor Macey’s scholarly substantive analysis.

In my Forum post, I confirmed the correctness of the Gallagher/Grundfest Paper’s unassailable core observation—irrespective of whether any particular proposal (or the proponent of that proposal) espousing the elimination of staggered boards in fact violated the SEC’s proxy fraud rules—those antifraud rules, by their terms, undoubtedly apply to proponents of shareholder proposals as well as to public companies’ proxy solicitation materials. In submitting my post, I suppose I anticipated that—no matter how balanced a presentation I might endeavor to offer—if emotion were to become a substitute for analysis—I might soon be swept up in any subsequent cross-fire. What I did not expect, however, was that a new voice—belonging to Boston University School of Law’s Professor Tamar Frankel, one of the Country’s pre-eminent legal experts on the application of the federal securities laws to mutual funds and other investment companies (as well as those who advise and manage collective portfolios), would enter the fray, and question the accuracy of my response to a newspaper reporter about prior precedent for a sitting SEC Commissioner to express his views on whether current/recent activities might violate of the law (here).

…continue reading: On Ethics, Rhetoric and Civility: A Response to Professor Frankel

2014 Year-End Update on Corporate Deferred Prosecution and Non-Prosecution Agreements

Editor’s Note: Joseph Warin is partner and chair of the litigation department at the Washington D.C. office of Gibson, Dunn & Crutcher. The following post is based on a Gibson Dunn client alert; the full publication, including footnotes and appendix, is available here.

The U.S. Department of Justice (“DOJ”) and the U.S. Securities and Exchange Commission (“SEC”) continue to deploy DPAs and NPAs aggressively. This past year left no doubt that such resolutions are a vital part of the federal corporate law enforcement arsenal, affording the U.S. government an avenue both to punish and reform corporations accused of wrongdoing. In early December, for example, U.S. Assistant Attorney General for DOJ’s Criminal Division, Leslie Caldwell, highlighted the importance of negotiated resolutions that allowed DOJ to “impose reforms, impose compliance controls, and impose all sorts of behavioral change.” She concluded: “In the United States system at least [settlement] is a more powerful tool than actually going to trial.” DOJ and the SEC have used negotiated resolutions, including DPAs and NPAs, to require companies to implement an effective compliance program. In 2014 we witnessed a number of notable developments in negotiated resolutions that demonstrate that the traditional hallmarks of DPAs and NPAs, including post-settlement compliance and reporting obligations, are here to stay.

…continue reading: 2014 Year-End Update on Corporate Deferred Prosecution and Non-Prosecution Agreements

G-SIB Capital: A Look to 2015

Posted by Yaron Nili, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Saturday January 17, 2015 at 9:00 am
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Editor’s Note: The following post comes to us from Dan Ryan, Leader of the Financial Services Advisory Practice at PricewaterhouseCoopers LLP, and is based on a PwC publication by Dan Ryan, Kevin Clarke, Roozbeh Alavi, and Armen Meyer. The complete publication, including appendix, is available here.

On December 9, 2014, the Federal Reserve Board (FRB) issued a long-awaited proposal to impose additional capital requirements on the US’s global systemically important banks (G-SIBs). The proposal implements the Basel Committee on Banking Supervision’s (BCBS) G-SIB capital surcharge framework that was finalized in 2011, but also proposes changes to BCBS’s calculation methodology resulting in significantly higher surcharges for US G-SIBs compared with their global peers.

The proposal, which we expect will be finalized in 2015, requires US G-SIBs to hold additional capital (Common Equity Tier 1 (CET1) as a percentage of Risk Weighted Assets (RWA)) equal to the greater of the amount calculated under two methods. The first method is consistent with BCBS’s framework, and calculates the amount of extra capital to be held based on the G-SIB’s size, interconnectedness, cross-jurisdictional activity, substitutability, and complexity. The second method is introduced by the US proposal, and uses similar inputs but replaces the substitutability element with a measure based on a G-SIB’s reliance on short-term wholesale funding (STWF).

…continue reading: G-SIB Capital: A Look to 2015

ISS Releases 2015 Benchmark Policy Updates

Posted by Carol Bowie, Institutional Shareholder Services Inc., on Friday January 16, 2015 at 1:01 pm
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Editor’s Note: Carol Bowie is Head of Americas Research at Institutional Shareholder Services Inc. (ISS). This post relates to ISS global benchmark voting policy guidelines for 2015.

ISS recently issued updated guidelines for several of its benchmark global voting policies, which will be effective for analyses of publicly traded companies with shareholder meetings on or after Feb. 1, 2015. For the 10th year running, ISS gathered broad input from institutional investors, corporate issuers, and other market constituents worldwide as a key part of its policy development process. The 2015 updates reflect the time and effort of hundreds of investors, issuers, corporate directors, and other market participants who provided input through a variety of channels, including ISS’ annual policy survey, topical and regional roundtables, and direct engagements with staff.

…continue reading: ISS Releases 2015 Benchmark Policy Updates

Do Takeover Laws Matter? Evidence from Five Decades of Hostile Takeovers

Posted by R. Christopher Small, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Friday January 16, 2015 at 1:00 pm
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Editor’s Note: The following post comes to us from Matthew Cain, Financial Economist at the U.S. Securities and Exchange Commission; Stephen McKeon of the Department of Finance at the University of Oregon; and Steven Davidoff Solomon, Professor of Law at the University of California, Berkeley.

The takeover battle for Erie Railroad is legend. In 1868, Cornelius Vanderbilt, the railroad baron, began to build an undisclosed equity position in Erie. When the group controlling Erie discovered this, they quickly acted to their own advantage, issuing a substantial number of additional shares of Erie stock for Vanderbilt to purchase. One of the managers, James Fisk, purportedly said at the time that “if this printing press don’t break down, I’ll be damned if I don’t give the old hog all he wants of Erie.” The parties then arranged for their own bought judges to issue dueling injunctions prohibiting the other from taking action at Erie. The battle climaxed when Erie’s management fled to New Jersey with over $7 million in Erie’s funds. By the time the dust settled, they were still in control and Vanderbilt was out over $1 million (details from Gordon, 2004; Markham, 2002).

The Erie story is apocryphal, but informative for any attempt to measure the effect of takeover laws. Takeover laws are enacted to regulate takeover activity, and they often take the form of anti-takeover laws intended to thwart hostile takeovers. However, these laws can have the opposite effect of their intended purpose. Although they provide protection to targets, they also implicitly rule out certain defensive tactics and therefore provide protection and increased certainty for prospective hostile bidders. In the case of Erie, it is the bidder that may have benefited from more legal structure, not the target.

…continue reading: Do Takeover Laws Matter? Evidence from Five Decades of Hostile Takeovers

Statement of Thirty-Four Senior Corporate and Securities Law Professors Urging Commissioner Gallagher and Professor Grundfest to Withdraw Their Allegations against Harvard and the SRP

Posted by Thirty-Four Senior Corporate and Securities Law Professors, on Thursday January 15, 2015 at 8:30 am
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Editor’s Note: This post is a joint statement by thirty-four senior corporate and securities law professors, listed in the statement, from seventeen leading law schools at Boston University, Chicago, Columbia, Cornell, Duke, George Washington, Georgetown, Harvard, Michigan, New York University, Northwestern, Stanford, Texas, UCLA, Vanderbilt, Virginia and Yale. Reacting to a recent paper by Commissioner Daniel Gallagher and Professor Joseph Grundfest (described on the Forum here), the thirty-four senior law professors listed in this statement opine that the paper’s allegations against Harvard and the Shareholder Rights Project (SRP) are meritless and urge the paper’s co-authors to withdraw these allegations. The Forum featured earlier posts about the paper by Professor Grundfest (most recently here), Professor Jonathan Macey (most recently here), Professor Tamar Frankel (here) and Harvey Pitt (here).

We are thirty-four senior professors from seventeen leading law schools whose teaching and research focus on corporate and securities law. We write to respectfully urge SEC Commissioner Daniel M. Gallagher, and his co-author Professor Joseph Grundfest, to withdraw the allegations, issued in a paper released last month (described on the Forum here), that Harvard and the Shareholder Rights Project (SRP), a clinic at its law school, violated the securities laws by assisting institutional investors in submitting shareholder proposals to declassify corporate boards.

We conduct our teaching and research at seventeen different law schools throughout the United States, including at Boston University, Chicago, Columbia, Cornell, Duke, George Washington, Georgetown, Harvard, Michigan, New York University, Northwestern, Stanford, Texas, UCLA, Vanderbilt, Virginia and Yale. We write in our individual capacities; our institutional affiliations are noted below for identification purposes only.

Members of our bipartisan group differ widely in our views on corporate law issues, including on the appropriate use of staggered boards and shareholder proposals. However, we all agree that Commissioner Gallagher and Professor Grundfest should withdraw their accusations.

First, the authors’ allegations are meritless. The Gallagher/Grundfest paper accuses Harvard and the SRP of violating federal securities law by assisting investors with shareholder proposals that did not include sufficient references to certain academic studies. These accusations are deeply flawed. (For a detailed analysis of flaws in the paper, see the posts by Professor Jonathan Macey available here, here, and here). For example, the proposals were consistent with the SEC’s long-standing policy on shareholder proposals; none of the more than one hundred public companies receiving proposals, many represented by the country’s premier law firms, raised any of the claims put forward by the authors; and there is no precedent for an enforcement action or private suit against shareholder proponents, let alone those assisting them, of the type that the paper urged against Harvard and the SRP. Members of our group do not all share the same view on each of these and the other flaws in the authors’ analysis. However, we all agree that the allegations of securities law violations in the Gallagher/Grundfest paper are meritless.

Furthermore, while it is always regrettable when meritless allegations are raised by any author, we are especially concerned that a sitting SEC Commissioner has chosen to issue such allegations without support from a prior investigation by the SEC staff and without due process of law. While the Commissioner has indicated his interest in changing the SEC’s long-held policy in this area, meritless accusations against private parties should not be part of an effort to bring about such a change. We worry that Commissioner Gallagher’s decision to level meritless allegations against specific private parties will have adverse consequences for the important work that the SEC must do.

We wish to stress our support for a vigorous policy debate about the appropriate role of staggered boards and shareholder proposals in corporate and securities law—subjects on which there is substantial diversity of views among us—and we welcome Commissioner Gallagher and Professor Grundfest as valuable participants in such a discussion. The baseless accusations issued against Harvard and the SRP should not, however, be part of this debate. We respectfully urge Commissioner Gallagher and Professor Grundfest to withdraw these accusations.

Jennifer H. Arlen
Norma Z. Paige Professor of Law
New York University School of Law
Jeffrey N. Gordon
Richard Paul Richman Professor of Law
Columbia Law School
Michal Barzuza
Professor of Law
The University of Virginia School of Law
Robert J. Jackson, Jr.
Professor of Law and Milton Handler Fellow
Columbia Law School
Jeffrey D. Bauman
Professor of Law
Georgetown University Law Center
Marcel Kahan
George T. Lowy Professor of Law
New York University School of Law
Laura Nyantung Beny
Professor of Law
University of Michigan Law School
Vikramaditya S. Khanna
William W. Cook Professor of Law
University of Michigan Law School
Lisa Bernstein
Wilson-Dickinson Professor of Law
The University of Chicago Law School
Michael Klausner
Nancy and Charles Munger Professor of Business and Professor of Law
Stanford Law School
Stephen Choi
Murray and Kathleen Bring Professor of Law
New York University School of Law
Reinier H. Kraakman
Ezra Ripley Thayer Professor of Law
Harvard Law School
Robert C. Clark
Harvard University Distinguished
Service Professor and Austin Wakeman Scott Professor of Law
Harvard Law School
Kimberly D. Krawiec
Kathrine Robinson Everett Professor of Law
Duke Law School
John C. Coates IV
John F. Cogan, Jr. Professor of
Law and Economics
Harvard Law School
Donald Langevoort
Thomas Aquinas Reynolds Professor of Law
Georgetown University Law Center
John C. Coffee, Jr.
Adolf A. Berle Professor of Law
Columbia Law School
Katherine Litvak
Professor of Law
Northwestern University School of Law
James D. Cox
Brainerd Currie Professor of Law
Duke Law School
Jonathan R. Macey
Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law
Yale Law School
Lawrence A. Cunningham
Henry St. George Tucker III Research Professor of Law
The George Washington University Law School
James Park
Professor of Law
UCLA Law School
Deborah A. DeMott
David F. Cavers Professor of Law
Duke Law School
J. Mark Ramseyer
Mitsubishi Professor of Japanese Legal Studies
Harvard Law School
Allen Ferrell
Harvey Greenfield Professor of Securities Law
Harvard Law School
Mark J. Roe
David Berg Professor of Law
Harvard Law School
Tamar Frankel
Professor of Law
Boston University School of Law
James C. Spindler
Sylvan Lang Professor of Law
University of Texas School of Law
Jesse M. Fried
Dane Professor of Law
Harvard Law School
Randall S. Thomas
John S. Beasley II Professor of
Law and Business
Vanderbilt Law School
Mira Ganor
Professor of Law
University of Texas School of Law
Frederick Tung
Professor of Law
Boston University School of Law
Ronald J. Gilson
Charles J. Meyers Professor of
Law and Business
Stanford Law School
Marc and Eva Stern Professor of
Law and Business
Columbia University School of Law
Charles K. Whitehead
Myron C. Taylor Alumni Professor of Business Law
Cornell University Law School

The Threat to Shareholders and the Economy from Activist Hedge Funds

Posted by Martin Lipton, Wachtell, Lipton, Rosen & Katz, on Wednesday January 14, 2015 at 9:02 am
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Editor’s Note: Martin Lipton is a founding partner of Wachtell, Lipton, Rosen & Katz, specializing in mergers and acquisitions and matters affecting corporate policy and strategy. This post is based on a Wachtell Lipton memorandum by Mr. Lipton and Sara J. Lewis.

Again in 2014, as in the two previous years, there has been an increase in the number and intensity of attacks by activist hedge funds. Indeed, 2014 could well be called the “year of the wolf pack.”

With the increase in activist hedge fund attacks, particularly those aimed at achieving an immediate increase in the market value of the target by dismembering or overleveraging, there is a growing recognition of the adverse effect of these attacks on shareholders, employees, communities and the economy. Noted below are the most significant 2014 developments holding out a promise of turning the tide against activism and its proponents, including those in academia.

…continue reading: The Threat to Shareholders and the Economy from Activist Hedge Funds

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