Posts Tagged ‘Staggered boards’

Why Do Dual-Class Firms Have Staggered Boards?

Posted by June Rhee, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Wednesday February 18, 2015 at 9:00 am
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Editor’s Note: The following post comes to us from Mira Ganor, professor at the University of Texas School of Law. Recent work from the Program on Corporate Governance about staggered boards includes: How Do Staggered Boards Affect Shareholder Value? Evidence from a Natural Experiment (discussed on the Forum here).

The paper, Why Do Dual-Class Firms Have Staggered Boards?, which was recently made publicly available on SSRN, identifies a relatively high incidence of the combination of two of the strongest anti-takeover mechanisms: a dual-class capital structure with a staggered board. On its face this combination seems superfluous and redundant. If we already have a dual-class capital structure, why do we need a staggered board?

Even more puzzling are the results of the empirical studies of the combined use of staggered boards and dual class capital structures that find a negative correlation between staggered boards and firm value (as measured by Tobin’s Q) similar to the correlation found in firms with single class capital structures. This statistically significant and economically meaningful correlation persists even when controlling for special cases such as founder firms and family firms. Similarly, there are no significant changes in the results when controlling for effective dual class structures, i.e., dual class structures that grant de jure control and not merely the likelihood of de facto control.

…continue reading: Why Do Dual-Class Firms Have Staggered Boards?

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.

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).

Editor’s Update: A statement that Mr. Pitt issued jointly with Mr. Brian Cartwright and Mr. Simon Lorne, expressing substantial agreement with the paper’s analysis and disagreeing with suggestions that Commissioner Gallagher’s co-authorship of the paper is inappropriate, is available on Business Wire 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

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

Did Commissioner Gallagher Violate SEC Rules?

Posted by Tamar Frankel, Boston University School of Law, on Wednesday January 7, 2015 at 8:53 am
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Editor’s Note: Professor Tamar Frankel is Professor of Law at Boston University School of Law. This post offers a critique of a paper by Commissioner Daniel Gallagher and Professor Joseph A. Grundfest, described on the Forum here. Additional critiques of the paper by Professor Jonathan Macey are available on the Forum here, here and here. A reply post to Professor Macey authored by Professor Grundfest and endorsed by Commissioner Gallagher is available on the Forum here.

Recently SEC Commissioner Daniel M. Gallagher issued a paper, titled Did Harvard Violate Federal Securities Law? (described on the Forum here and in a WSJ article here). The paper, co-authored with Professor Joseph Grundfest, expressed the Commissioner’s opinions regarding shareholder proposals and the Harvard Law School clinic that assisted public pension funds filing those proposals in the previous three years. The Commissioner did not mince his words. In his opinion, Harvard University and its clinic violated the securities laws by assisting proponents that failed to include references to academic studies contrary to the views of those proponents. The Commissioner was clearly presenting a threat to the University and its clinic. However, his statements also raise a number of questions about his own behavior.

To begin with, the Commissioner should have recognized that, as Professor Macey has shown in a series of posts (available on the Forum here, here, and here), his accusations are without merit and the proposals were entirely consistent with current SEC rules, policies and practices. Furthermore, in making his accusations, the Commissioner deviated from standard SEC procedures and practices.

I am unaware of any case in which a sitting SEC Commissioner released a paper accusing particular individuals or organizations of legal violations, and urging enforcement action and/or private suits against them, or used such public accusations as an instrument for urging other Commissioners or the SEC staff to change their policy. In a recent comment to the New York Times, Harvey Pitt brought up as a possible precedent a 1974 speech by then-Commissioner A.A. Sommer who expressed concerns about “going-private” transactions. However, Sommer’s speech (available on the SEC website here) did not mention (let alone accuse) any particular individuals or organizations (the only mention of any names in the Speech is in footnote citations to past court cases). There is a big difference between discussing general policy problems, which SEC Commissioners should be doing, and attacking or urging actions against particular individuals and organizations, which SEC Commissioners should not be doing.

The SEC Canon of Ethics (available here), which is binding on SEC Commissioners, warns SEC officials to be wary of using their “power to defame and destroy”. The Cannon of Ethics guides SEC officials to avoid defaming individuals or organizations. The Canon provides:

“§ 200.66 Investigations. The power to investigate carries with it the power to defame and destroy. In determining to exercise their investigatory power, members should concern themselves only with the facts known to them and the reasonable inferences from those facts. A member should never suggest, vote for, or participate in an investigation aimed at a particular individual for reasons of animus, prejudice or vindictiveness. The requirements of the particular case alone should induce the exercise of the investigatory power, and no public pronouncement of the pendency of such an investigation should be made in the absence of reasonable evidence that the law has been violated and that the public welfare demand it.”

…continue reading: Did Commissioner Gallagher Violate SEC Rules?

Professor Grundfest’s Latest Reply Flip-Flops Allegations and Further Demonstrates that He and Commissioner Gallagher Wrongfully Accused the SRP

Posted by Jonathan R. Macey, Yale Law School, on Tuesday January 6, 2015 at 8:37 am
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Editor’s Note: Jonathan R. Macey is the Sam Harris Professor of Corporate Law, Corporate Finance & Securities Law at Yale University. This post provides a detailed response to a reply post authored by Professor Joseph A. Grundfest and endorsed by Commissioner Daniel Gallagher, titled No Good Deed Goes Unpunished: A Reply to Professor Macey’s Reply, and available on the Forum here. This reply post engaged with earlier posts by Professor Macey available on the Forum here and here, which offered a critique of a paper by Commissioner Gallagher and Professor Grundfest, titled Did Harvard Violate Federal Securities Law? The Campaign Against Classified Boards of Directors (described in a post on the Forum here).

This post is my second—and I hope final—response to the unsuccessful attempts by SEC Commissioner Daniel Gallagher and Professor Joseph Grundfest to address my criticism of the paper released by them last month (hereinafter “the Paper,” described on the Forum here). In my first post, “SEC Commissioner, Law Professor Wrongfully Accuse SRP of Securities Fraud” (hereinafter “My First Post,” available on the Forum here), I analyzed the spurious claims against the Shareholder Rights Project (SRP) that Gallagher/Grundfest put forward. In this post I address the authors’ most recent reply to my latest post. This most recent reply again shifts allegations dramatically and fails to address the identified flaws in the authors’ analysis. The reply thus confirms and reinforces my original position that the authors wrongfully accused the SRP.

The analysis of My First Post showed that the proposals submitted by investors working with the SRP (SRP proposals) were consistent with the law and with the long-held policies and practices of SEC staff, and I concluded that the authors had wrongfully accused the SRP. In a subsequent post titled “A Response to Professor Macey” (hereinafter “the First Reply,” available on the Forum here), Professor Grundfest attempted to offer a “point by point” detailed response to my analysis. In a response titled Professor Grundfest’s Reply Demonstrates that He and Commissioner Gallagher Wrongfully Accused the SRP (“My First Response”, available on the Forum here), I showed that (i) the First Reply dramatically modifies and weakens the authors’ allegations and (ii) the First Reply itself demonstrates, in conceding some key points that I made and in failing to address some others, that Gallagher/Grundfest wrongfully accused the SRP and should withdraw their allegations.

“There you go again”: Earlier this week, the Forum published a reply to My First Response (“the Second Reply,” available on the Forum here) authored by Professor Grundfest and endorsed by Commissioner Gallagher. Like the First Reply, the Second Reply reinforces my serious concerns about the Gallagher/Grundfest attack.

Below I first discuss the dramatic shift of allegations introduced by the Second Reply as well as the authors’ announced plan to come up with new allegations against the SRP following my debunking of the allegations in the Paper. I next discuss the authors’ consistent failure to address the deficiencies I identified in their claims. I conclude that the repeated attempts to prop up spurious claims, which are admittedly at odds with the long-held policies and practices of the SEC regarding shareholder proposals, are particularly unworthy of a sitting SEC commissioner, and I urge the authors to withdraw their allegations.

…continue reading: Professor Grundfest’s Latest Reply Flip-Flops Allegations and Further Demonstrates that He and Commissioner Gallagher Wrongfully Accused the SRP

No Good Deed Goes Unpunished: A Reply to Professor Macey’s Reply

Posted by Joseph Grundfest, Stanford Law School, on Monday January 5, 2015 at 2:02 pm
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Editor’s Note: The post is authored by Joseph A. Grundfest, the W. A. Franke Professor of Law and Business at Stanford University Law School, and endorsed by SEC Commissioner Daniel M. Gallagher. The post responds to a post by Yale Law School Professor Jonathan R. Macey (available on the Forum here), titled Professor Grundfest’s Reply Demonstrates that He and Commissioner Gallagher Wrongfully Accused the SRP. Professor Macey’s post, along with an earlier post by him (available on the Forum here), offered a critique of a paper by Commissioner Gallagher and Professor Grundfest, titled Did Harvard Violate Federal Securities Law? The Campaign Against Classified Boards of Directors, that is described in a post by Professor Grundfest (available on the Forum here).

According to the Guinness World Book of Records, the longest game of correspondence chess spanned 53 years and ended only with the death of one of the participants. Professor Macey and I have a good start at challenging this record, but with any luck, we will reach closure without either of us having to expire. And, if you are keeping score, this post is my reply to Professor Macey’s reply (here) to my response (here) to Professor Macey’s reaction (here) to a paper posted by Commissioner Gallagher and me asserting that the Harvard Shareholder Rights Project has violated federal securities law (here). Whew.

As an initial matter, I would like to thank Professor Macey for the time and effort he has devoted to commenting on our article. While Professor Macey and I seem destined to disagree on significant points, Professor Macey’s most recent post suggests strategies to strengthen the coming revision of our article, and we are grateful for those observations.

…continue reading: No Good Deed Goes Unpunished: A Reply to Professor Macey’s Reply

Corporate Governance Survey—2014 Proxy Season Results

Posted by Yaron Nili, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Wednesday December 31, 2014 at 9:12 am
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Editor’s Note: The following post comes to us from David A. Bell, partner in the corporate and securities group at Fenwick & West LLP. This post is based on portions of a Fenwick publication titled Corporate Governance Practices and Trends: A Comparison of Large Public Companies and Silicon Valley Companies (2014 Proxy Season); the complete survey is available here.

Since 2003, Fenwick has collected a unique body of information on the corporate governance practices of publicly traded companies that is useful for Silicon Valley companies and publicly-traded technology and life science companies across the U.S. as well as public companies and their advisors generally. Fenwick’s annual survey covers a variety of corporate governance practices and data for the companies included in the Standard & Poor’s 100 Index (S&P 100) and the high technology and life science companies included in the Silicon Valley 150 Index (SV 150). [1]

…continue reading: Corporate Governance Survey—2014 Proxy Season Results

A Reply to Professors Macey and Grundfest

Posted by Harvey L. Pitt, Kalorama Partners, LLC, on Saturday December 27, 2014 at 9:00 am
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Editor’s Note: The following post comes to us from Harvey L. Pitt, Chief Executive Officer and Managing Director at Kalorama Partners, LLC and former Chairman of the U. S. Securities and Exchange Commission. This post comments on posts by Professor Joseph A. Grundfest (available on the Forum here and here) and Professor Jonathan R. Macey (available on the Forum here and here), which discuss a paper by SEC Commissioner Daniel M. Gallagher and Stanford Law School Professor Joseph A. Grundfest, described in a post by Professor Grundfest (available on the Forum here).

Entering the ongoing debate in this venue between Professors Macey and Grundfest—two individuals of profound intellect I greatly admire and respect—is doubtlessly foolish on my part. Nonetheless, I have been known to abandon caution frequently, and see no reason to change at this stage of my professional existence. The focal point of the debate is an important and thoughtful Paper co-authored by SEC Commissioner Dan Gallagher and Stanford Law Professor (and former SEC Commissioner) Joe Grundfest (a summary of the Paper is available here). The Paper discusses the obligation of proponents of shareholder proposals to avoid misleading shareholders when explaining the reasons those shareholders should support their proposals.

In commenting upon the Gallagher/Grundfest Paper, Professor Macey seemingly assumes the mantle of “Harvard Protector” (his original post criticizing the Paper is available here) an unusual role—to say the least—for a Yale Law Professor (and former Administrator) of distinction. Perhaps, he also disputes Professor Grundfest’s response to his initial criticism of the Paper, which exposits legal principles (the response is available here) that contest some of Professor Macey’s initial commentary. In his latest reply (available here), Professor Macey, on occasion, appears to be looking a gift horse in the mouth.

If, as Professor Macey contends, Professor Grundfest’s response to Professor Macey’s original posting contains concessions—a characterization I’m not certain Professor Grundfest would accept—or if Professor Macey is correct that Professor Grundfest has retreated from certain positions previously espoused in the Gallagher/Grundfest Paper—something I am certain Professor Grundfest would not concede—Professor Macey’s comments pointing out these concessions and retreats are superfluous. Surely those of us interested (and, dare I say, sophisticated) enough to read the Harvard Law School Forum’s postings on Corporate Governance and Financial Regulation don’t require Professor Macey (or anyone else) to tell us what concessions or retreats Professor Grundfest has embraced! Professor Macey also seems reluctant to acknowledge that there are considerable points of commonality between the two professors on many substantive issues raised and discussed in the Gallagher/Grundfest Paper.

…continue reading: A Reply to Professors Macey and Grundfest

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