Monday, April 10, 2023
Recording of the Inaugural Peter J. Henning Lecture
For those of you interested in watching or listening to the inaugural Peter J. Henning lecture (the subject of my blog post last Monday), you can find the recording here. Friend-of-the-BLPB Chris Lund was kind enough to send the link along. As you'll note, Judge Rakoff's remarks (which were introduced by Chris) begin with comments about Peter, his contributions to our field, and his service to the general public. Judge Rakoff's thoughts in that regard are so well taken. The whole presentation was such a fitting tribute.
I hope you all enjoy the lecture as much as I did!
April 10, 2023 in Joan Heminway, Securities Regulation, White Collar Crime | Permalink | Comments (0)
Wednesday, March 22, 2023
This Friday - Wilkinson Family Speaker Series at OU College of Law
Dear BLPB Readers:
My colleague Professor Joseph Thai at OU College of Law shared the following:
"Do you have an interest in securities fraud and investor protection? Want to ask national experts about the current banking crisis and its implications for regulators, investors, and the general public?
On behalf of OU College of Law, please join us for the Wilkinson Family Speaker Series (WFSS) in the Bell Courtroom at OU College of Law on Friday, March 24, 2023, from 9:15 a.m. – 1:15 p.m. The event is free, breakfast and lunch are included, and you are welcome to come and go if you cannot stay the entire duration.
Please see the flyer and attached program, and RSVP at the link below. Thank you!"
Program flyer is here: Download WSS Program
March 22, 2023 in Colleen Baker, Securities Regulation | Permalink | Comments (0)
Monday, January 30, 2023
Exercise Caution: Why Cautionary Statements May Misdirect
I have had the good fortune of talking to friend-of-the-BLPB Frank Gevurtz about some of his illuminating "takes" on Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, a decision we all wrestle with, it seems, in one way or another. I recently ran into Frank (at the AALS Annual Meeting), and he informed me that some of those thoughts have made their way into a full-length article. That article, Important Warning or Dangerous Misdirection: Rethinking Cautions Accompanying Investment Predictions, was recently posted to the Social Science Research Network (SSRN) and is available here. The abstract follows.
We are constantly bombarded with cautions warning us of dangers to our health or wellbeing. Sometimes, however, cautions increase the danger. This article addresses one example: cautions warning investors of the risks that predictions regarding corporate performance will not pan out.
Here, the danger is investors falling prey to trumped up predictions of corporate performance, the result of which is to misallocate resources, increase the cost of capital for honest businesses, and create a drag on the overall economy. This article shows how the typical cautions accompanying predictions of corporate performance facilitate rather than avoid this danger by misdirecting both investors and courts from looking at what they should: the credibility of the speaker in giving the prediction.
To solve this problem, this article introduces a radically different approach to determining the legal impact of cautions accompanying predictions of corporate performance. This is to distinguish between cautions alerting investors to problems with the speaker’s credibility in giving the prediction versus those that simply list various risks that might lead the prediction to not pan out. The article thereby provides a roadmap for courts to replace their current misguided focus on the wrong type of cautions in the numerous cases raising the issue of when cautions serve as a defense to claims of securities fraud based upon a failed prediction.
Although Frank's draft article is ultimately directed at judicial decision-making, there is much in it for use by others. I have been teaching materiality law and lore to my Securities Regulation students this past week. So much of this article is relevant to our discussions. In the article, Frank writes about (among other things) the bespeaks caution doctrine and the Private Securities Litigation Reform Act safe harbor for forward-looking statements, both of which are part of my materiality coverage. I am finishing talking about these aspects of materiality litigation tomorrow.
While I am on the topic of materiality , I also want to thank BLPB co-editor Ann Lipton for her great post on Saturday on Tesla and Basic. I use the Securities Regulation text coauthored by her, Jim Cox, Bob Hillman, and Don Langevoort (thanks for that, too, Ann!), which allows for a robust coverage of materiality. The Tesla trial has been on our minds and in our classroom. I am adding Ann's blog post to the mix.
January 30, 2023 in Ann Lipton, Joan Heminway, Securities Regulation | Permalink | Comments (0)
Monday, November 28, 2022
Criminal Insider Trading in Personal Networks
Earlier today, friend-of-the-BLPB Andrew Jennings released a podcast in his Business Scholarship Podcast series featuring me talking about my forthcoming piece in the Stetson Business Law Review, "Criminal Insider Trading in Personal Networks." You may recall me blogging about this piece as part of my report on the 2022 Law and Society Association's 7th Global Meeting on Law and Society this past summer. The SSRN abstract is as follows:
This Article describes and comments on criminal insider trading prosecutions brought over an eleven-year period. The core common element among these cases is that they all involve alleged tipper/tippee insider trading or misappropriation insider trading implicating information transfers between or among friends or family members (rather than merely business connections). The ultimate objectives of the Article are to explain and comment on the nature of these criminal friends-and-family insider trading cases and to posit reasons why friends and family become involved in criminal tipping and misappropriation--conduct that puts both the individual friends and family members and the relationships between and among them at risk.
I am grateful to be in the position of publishing this work in the near future (after a number of years of work on the larger project that includes the featured criminal cases). I enjoyed talking to Andrew about it. His podcast series has been a welcomed and valuable contribution to our field. You can find out a lot about current business law research by listening to even a few of his podcasts.
The podcast featuring me is available through any of the following links:
Apple Podcasts and other podcast apps: https://podcasts.apple.com/us/podcast/joan-macleod-heminway-on-friends-and-family-insider/id1470002641?i=1000587717188
YouTube: Business Scholarship Podcast - Ep.164 – Joan MacLeod Heminway on Friends-and-Family Insider Trading
Website url: https://andrewkjennings.com/2022/11/27/joan-macleod-heminway-on-friends-and-family-insider-trading/
Check it out. Consider subscribing!
November 28, 2022 in Joan Heminway, Research/Scholarhip, Securities Regulation, White Collar Crime | Permalink | Comments (0)
Tuesday, November 22, 2022
Teaching Corporate Finance: Public & Exempt Offerings
Yesterday, I taught my Corporate Finance students about public offerings (focusing on initial public offerings--IPOs) and exempt offerings of securities. The front end of this course focuses on the instruments of corporate finance and the back end focuses on a number of different corporate finance transactional contexts. Although Business Associations is a prerequisite for the course, Securities Regulation is not. As a result, the 75 minutes I spend on public and exempt offerings is less doctrinally focused and more practically driven (unsurprising, perhaps, given the fact that my Corporate Finance course is a practical applied experiential offering).
Students prepare for the class session by reading parts of the SEC's website on going public and exempt offerings and reviewing an IPO checklist created and modified by me from a timetable/checklist I generated while I was in full-time law practice. Each student also must bring to class and be prepared to discuss a news article or blog post on public securities offerings. I share general knowledge and we dialogue about insights gained from the discussion items they bring to class. It usually turns out to be a fun and engaged class day, and yesterday's class meeting proved to be no exception.
I captured the board work on my phone and have pasted the photos in below. (I should note that I use a much more detailed public offering timeline in Securities Regulation, which I have memorialized in a series of PowerPoint slides. But the whiteboard version depicted below seems to be at about the right level of detail for the students in this course.) I am curious about how my coverage of public and exempt securities offerings might compare to what others give to this material in similar courses. Feel free to share in the comments.
November 22, 2022 in Corporate Finance, Joan Heminway, Securities Regulation, Teaching | Permalink | Comments (0)
Tuesday, November 15, 2022
SEALS 2023 - Congressional Insider Trading Discussion Group
Co-blogger John Anderson and I are considering submitting a late proposal for the inclusion of a discussion group in the Business Law Workshop for the 2023 annual meeting of the Southeastern Association of Law Schools (SEALS). The 2023 conference is scheduled to be held from July 23 - July 29 at the Boca Raton Resort and Club. A draft title and description for the possible discussion group follow.
Stock Ownership and Trading by Government Officials - Time for Reform?
Allegations of unlawful insider trading by government officials have again been making headlines. Multiple Senators were investigated for suspiciously timed trades in advance of the COVID-19 market collapse. A February 2022 Business Insider article identified members of both houses of Congress hailing from both major political parties who have failed to comply with applicable federal legislation. And a recent poll found that more than three-quarters of American voters think members of Congress have an “unfair advantage” in trading stocks. This discussion group focuses on insider trading by government officials and the need for and nature of possible responses.
Please contact me as soon as possible if you are interested in participating. We need to assemble a group of at least ten folks in total, at least half of whom are from SEALS member schools. And the program is filling up fast!
November 15, 2022 in Conferences, Joan Heminway, Securities Regulation | Permalink | Comments (0)
Tuesday, November 1, 2022
Griffin on the Index Fund Voting Process
Professor Caleb Griffin (University of Arkansas School of Law) offered testimony before the Senate Committee on Banking, Housing, and Urban Affairs in June of 2022 on problems associated with the fact that the “Big Three” index fund managers (Vanguard, BlackRock, and State Street) cast almost a quarter of the votes at S&P 500 companies. As a result, enormous power is concentrated in the hands of just a few index fund managers, whose interests and values may not align with those whose shares they are voting. Professor Griffin proposed two solutions to this problem: (1) “categorical” pass-through voting, and (2) vote outsourcing. Professor Griffin’s remarks were recently posted here, and here’s the abstract:
In recent years, index funds have assumed a new and unprecedented role as the most influential players in corporate governance. In particular, the “Big Three” index fund managers—Vanguard, BlackRock, and State Street—occupy a pivotal role. The Big Three currently cast nearly a quarter of the votes at S&P 500 companies, and that figure is expected to grow to 34% by 2028 and over 40% in the following decade.
The best solution to the current problem—where we have virtually powerless index investors and enormous, concentrated power in the hands of index fund management—is to transfer some of that power to individual investors.
There are two primary ways to do so. The first is to allow individual investors to set their own voting instructions with “categorical” pass-through voting, where investors are able to give semi-specific instructions on common categories of topics. The second approach is vote outsourcing, where investors could instruct management to vote their shares in alignment with a third party representative.
Pass-through voting preserves the economies of scale at the Big Three while addressing the root of the problem: concentrated voting power in the hands of a small, unaccountable group. Ultimately, index funds occupy a unique and important role in financial markets, not least because they're disproportionately owned by smaller, middle-income investors. These investors have a valuable voice, and pass-through voting would help us hear it.
November 1, 2022 in Corporate Governance, Corporations, Financial Markets, John Anderson, Securities Regulation | Permalink | Comments (0)
Monday, October 3, 2022
The Wit and Wisdom of Tom N.
It was so wonderful to be able to host an in-person version of our "Connecting the Threads" Business Law Prof Blog symposium on Friday. Connecting the Threads VI was, for me, a major victory in the continuing battle against COVID-19--five healthy bloggers and a live audience! Being in the same room with fellow bloggers John Anderson, Colleen Baker, Doug Moll (presenting with South Carolina Law friend-of-the-BLPB Ben Means), and Stefan Padfield was truly joyful. And the topics on which they presented--shadow insider trading, exchange trading in the cloud, family business succession, and anti-ESG legislation--were all so salient. (I offered the abstract for my own talk on fiduciary duties in unincorporated business associations in last week's post.) For a number of us, the topic of our presentations arose from work we have done here on the BLPB.
This year, as I noted in my post last week, we had a special guest as our luncheon speaker. That guest would be known to many of you who are regular readers as "Tom N." Tom has commented on our blog posts here on the BLPB for at least eight years. (I rooted around and found a comment from him as far back as 2014.) And Tom lives right here in Tennessee--in middle Tennessee, to be exact (closer to Haskell Murray than to me). You can check out his bio here. I am delighted that we were able to coerce Tom to give up a day of law practice to come join us at the symposium.
The title/topic for Tom's talk was "A Country Boy Busines Lawyer's View from Down in the Weeds." The talk was, by design, a series of reflections on Tom's wide-ranging business law practice here in the state of Tennessee. He tries to stay out of the courtroom, but by his own recounting, he has been in court in every county in the state--and Tennessee has 95 counties!
In the end, Tom ended up offering a bunch of tips for law students and lawyers (both of whom were in attendance at the symposium). I took notes during Tom's talk. I have assembled them into a list below. The key points are almost in the order in which they were delivered. The stories that led to a number of these snippets of practical advice were priceless. You had to be there. Anyway, here is my list, together with a few editorial comments of my own. Tom can feel free to add, correct, or dispute my notes in the comments!
- Take tax courses; if you fear they may hurt your GPA, audit them.
- Use all available resources to get more knowledge. (Tom indicated that he bought Westlaw/used Practical Law as a solo practitioner for many years but recently gave it up. he also noted that he regularly reads a number of the law prof blogs.)
- Be a bar association member and access the resources bar associations provide. (Tom noted the excellent written materials published by the American Bar Association and the superior continuing legal education programs produced by the Tennessee Bar Association.)
- “You are going to learn to write in law school.” (Tom advised focusing on clear, efficient writing—something I just emphasized with my Business Associations students last week.)
- Publish in the law. (Tom shared his view that writing in the law improves both knowledge and analysis.)
- Expect the unexpected, especially in court (e.g., confronting in court transactions in pot-bellied pigs involving a Tennessee nonprofit). And as a Corollary: "You can't make this stuff up." The truth often is stranger than anything you could make up . . . .)
- In business disputes, never assume that an attorney was there on the front end. (And yes, there was mention of the use by many unknowledgeable consumers of online entity formation services.)
- As a lawyer, be careful not to insert your own business judgment. The business decision is the client's to make.
- Relatedly, let the business people hand you the framework of the deal.
- Along the same lines: "I am not paying people to tell me I can’t do it; I am paying people to tell me how to do it.” (As heard by Tom from his father, a business owner-manager. I think many of us have heard this or learned this—sometimes the hard way . . . . I do try to prevent my students from learning that lesson the hard way by telling them outright.)
- And further: “You want to screw up a deal, put the lawyers in the center of it.”
- As a courtroom lawyer, know the judges and—perhaps more importantly—court clerks!
- Introduce yourself to everyone; they may be in a position to help you now or later (referencing the time he introduced himself, unknowingly, to John Wilder, the former Lt. Governor of Tennessee, who proceeded to introduce him to the local judges).
- Preparation for the bar exam is a curriculum of its own. (That's close to a quote.)
- “A lot of things go more smoothly of you can get people talking.” (Tom is more of a fan of mediation than arbitration.)
- Local rules of court may not be even published; sometimes, you just need to pick up the phone and call the court clerk. (Another reason to get to know local court clerks!)
- Developing rapport with a judge is incredibly important to successful courtroom lawyering.
- Saying "I don’t know" does not hurt anything; in fact, it may help judges/others develop confidence in you and your integrity.
- Your law school grades will not matter after your first or second job. Employers will be looking at you and your professional record, not your grades.
I am sure I missed something along the way. Maybe my fellow bloggers in attendance will have something to add. But this list alone is, imv, pure gold for students and starting lawyers.
October 3, 2022 in Colleen Baker, Conferences, Corporate Governance, Family Business, Haskell Murray, Joan Heminway, John Anderson, Lawyering, Securities Regulation, Stefan J. Padfield, Unincorporated Entities | Permalink | Comments (1)
Monday, July 11, 2022
2022 Law and Society Association - 7th Global Meeting on Law and Society
Last night, I happily found myself sitting at a café table above the River Douro in Porto, Portugal (see photo below) as part of a two-day hiatus before the Global Meeting on Law and Society in Lisbon. I look forward to the conference and the rest of my time in this beautiful country. Viva Portugal!
I am participating in a number of programs over the course of the conference as part of CRN 46 (Corporate and Securities Law in Society), a Law and Society Association collaborative research network that started as a female business law prof group that routinely organized programs at the annual conferences of the Law and Society Association. I am very proud of this heritage. The group continues to promote and support the scholarship of women and other underrepresented populations in the business law scholarly realm.
I no doubt will have more to say about the meeting once it has ended and I am back in the United States. (I also am taking a personal trip to the Catalonia region of Spain before I return to Knoxville.) But for today, I will offer information about my academic paper presentation at the conference.
On Saturday, July 16, I will present my paper entitled "Criminal Insider Trading in Personal Networks." This piece was written for the 2022 Stetson Business Law Review symposium, held back in February, and will be published in a forthcoming issue of this new student-edited business law journal. (Readers may recall that I posted a call-for-papers almost a year ago for the symposium.) The abstract I posted for the Global Meeting on Law and Society is set forth below.
This article describes and makes observations about a proprietary data set comprising criminal insider trading prosecutions brought between 2008 and 2018. The core common element among these cases is that they all involve tipper-tippee insider trading or misappropriation insider trading involving friends or family members (rather than business connections). The ultimate objectives of the article are (1) to understand and comment on the nature of the friends-and-family criminal insider trading cases that are prosecuted and (2) to posit reasons why friends and family become involved in criminal tipping and misappropriation. Observations will include insights founded in legal doctrine, theory, and policy as well as psychology and sociology. The article is part of a larger project on friends-and-family insider trading cases.
As I work on finishing a paper on my larger project describing the entirety of the data set that I have been working on for the past few years (with several cohorts of students, who deserve massive credit), it seemed interesting--and potentially important--to share this piece of the puzzle with the Stetson Business Law Review symposium attendees and the audience at the Global Meeting on Law and Society. I hope to get new insights on the article as well as the larger project from the audience at this international presentation. Of course, if anyone who is not attending the meeting or this particular session has relevant thoughts on the article or the overall project, I welcome them. Feel free to ask for a draft.
Saúde! (Toasting to your health, in Portuguese, with some vinho verde, also pictured below.)
July 11, 2022 in Conferences, Joan Heminway, Research/Scholarhip, Securities Regulation, Travel, White Collar Crime | Permalink | Comments (0)
Friday, June 24, 2022
Rethinking Insider Trading Compliance Policies in Light of the SEC's New "Shadow Trading" Theory of Insider Trading Liability
In August 2021, the SEC announced that it had charged Matthew Panuwat with insider trading in violation of Section 10(b) of the Securities Exchange Act of 1934. Panuwat was the head of business development at Medivation, a mid-sized biopharmaceutical company when he learned that his company was set to be acquired by Pfizer at a significant premium.
If Panuwat had purchased Medivation stock in advance of the announcement of the acquisition, it is likely he would have been liable for insider trading under the classical theory. Liability for insider trading under the classical theory arises when a firm issuing stock, its employees, or its other agents strive to benefit from trading (or tipping others who then trade) that firm’s stock based on material nonpublic information. Here the insider (or constructive insider) violates a fiduciary duty to the counterparty to the transaction (the firm’s current or prospective shareholders) by not disclosing the information advantage drawn from the firm’s material nonpublic information in advance of the trade.
If Panuwat had purchased shares of Pfizer in advance of the announcement, then it is likely he would have been liable under the misappropriation theory. Liability for insider trading under the misappropriation theory arises when one misappropriates material nonpublic information and trades (or tips another who trades) on it without first disclosing the intent to trade to the information’s source. As the Supreme Court held in United States v. O’Hagan, 521 U.S. 642, 652 (1997), the “misappropriation theory premises liability on a fiduciary-turned-trader’s deception of those who entrusted him with access to confidential information” by duping them out of “the exclusive use of that information.”
But Panuwat did not trade in either Medivation or Pfizer. Instead, he purchased stock options in Incyte, another pharmaceutical company that was similar in size and market focus to Medivation. According to the SEC’s litigation release, “Panuwat knew that investment bankers had cited Incyte as a comparable company in discussions with Medivation and he anticipated that the acquisition of Medivation would likely lead to an increase in Incyte’s stock price.” Panuwat’s gamble paid off. Incyte’s stock price increased 8% when Pfizer’s acquisition of Medivation was announced. Panuwat earned $107,066 from his trade.
Panuwat moved to dismiss the SEC’s insider trading charges, arguing that his trading in the shares of an unrelated third-party issuer did not violate any recognized theory of insider trading liability. While the district court acknowledged this was a case of first impression, it denied Panuwat’s motion and permitted the SEC to proceed with its first enforcement action under the "shadow trading" theory of insider trading liability.
The principal basis for the court’s decision seems to be that Panuwat’s trading arguably violated the misappropriation theory by breaching the broad terms of Medivation’s insider trading policy, which includes the following language:
During the course of your employment…with the Company, you may receive important information that is not yet publicly disseminated…about the Company. … Because of your access to this information, you may be in a position to profit financially by buying or selling or in some other way dealing in the Company’s securities…or the securities of another publicly traded company, including all significant collaborators, customers, partners, suppliers, or competitors of the Company. … For anyone to use such information to gain personal benefit is illegal.
To me, the most interesting question raised by the Panuwat case, and the problem of shadow trading more generally, is why would Medivation (or any company) adopt such a broadly worded insider trading policy? How did this broad proscription on employee trading benefit Medivation’s shareholders?
Medivation’s shareholders could not have been harmed by Panuawat’s trading. Such trading could not affect Medivation’s stock price, nor could it put the acquisition in jeopardy. So why is the blanket proscription against trading in “another publicly traded company” in the policy at all? The final sentence of the policy as quoted above suggests that the drafters were under the impression that such trading would be illegal under the securities laws. This may be true under the misappropriation theory, but only because Medivation chose to make it so by including the language in the policy. What if Medivation’s policy had instead provided something like the following language:
Because of your access to this information, you may be in a position to profit financially by trading in the Company’s securities, or the securities of its customers and suppliers. Such trading is strictly prohibited. Nothing in this policy should, however, be read as prohibiting your trading or dealing in any other issuers’ securities unless expressly restricted by the Company.
Under this policy, the SEC would have had no basis for the charge that Panuwat’s trading violated the misappropriation theory. In other words, it is entirely up to issuers whether they want to expose themselves and their employees to “shadow trading” liability. But if such exposure to liability does not benefit an issuer’s own shareholders, it can only hurt them (by needlessly exposing the company’s employees and the company itself to direct or derivative insider trading liability). So what business justification is there for issuers to include the broader language in their insider trading compliance policies? I hope readers will offer their thoughts in the comments below.
June 24, 2022 in Compliance, Financial Markets, John Anderson, Securities Regulation, White Collar Crime | Permalink | Comments (9)
Tuesday, June 21, 2022
More Commentary on the SEC's ESG Proposal - Sharfman and Copland
June 21, 2022 in Corporate Finance, Corporate Governance, Corporations, Current Affairs, Joan Heminway, Securities Regulation | Permalink | Comments (0)
Friday, June 10, 2022
Sean Griffith on Whether the SEC's Proposed ESG Disclosure Regime Violates the First Amendment
There have been number of recent BLPB posts representing a diversity of viewpoints concerning the SEC's proposed rule to "Enhance and Standardize Climate-Related Disclosures for Investors". For example, co-blogger Joan MacLeod Heminway recently posted on a comment letter drafted by Jill E. FIsch, George S. Georgiev, Donna Nagy, and Cynthia A. WIlliams (and signed by Joan and 24 others) that affirms the proposed rule is within the SEC's rulemaking authority. I have offered a couple posts raising concerns about the proposed rule from the standpoint of utility and legal authority (see here and here). One of the concerns I have raised is that the SEC's proposed disclosure regime may compel corporate speech in a manner that runs afoul of the First Amendment. SEC Commissioner Hester Pierce raised this same concern, and now Professor Sean J. Griffith has posted a new article, "What's 'Controversial' About ESG? A Theory of Compelled Commercial Speech under the First Amendment", which offers a more comprehensive treatment of this problem. Professor Griffith has also submitted a comment letter to the SEC raising this issue. Here's the abstract for Professor Griffith's article:
This Article uses the SEC’s recent foray into ESG to illuminate ambiguities in First Amendment doctrine. Situating mandatory disclosure regulations within the compelled commercial speech paradigm, it identifies the doctrinal hinge as “controversy.” Rules compelling commercial speech receive deferential judicial review provided they are purely factual and uncontroversial. The Article argues that this requirement operates as a pretext check, preventing regulators from exceeding the plausible limits of the consumer protection rationale.
Applied to securities regulation, the compelled commercial speech paradigm requires the SEC to justify disclosure mandates as a form of investor protection. The Article argues that investor protection must be conceived on a class basis—the interests of investors qua investors rather than focusing on the idiosyncratic preferences of individuals or groups of investors. Disclosure mandates that are uncontroversially motivated to protect investors are eligible for deferential judicial review. Disclosure mandates failing this test must survive a form of heightened scrutiny.
The SEC’s recently proposed climate disclosure rules fail to satisfy these requirements. Instead, the proposed climate rules create controversy by imposing a political viewpoint, by advancing an interest group agenda at the expense of investors generally, and by redefining concepts at the core of securities regulation. Having created controversy, the proposed rules are ineligible for deferential judicial review. Instead, a form of heightened scrutiny applies, under which they will likely be invalidated. Much of the ESG agenda would suffer the same fate, as would a small number of existing regulations, such as shareholder proposals under Rule 14a-8. However, the vast majority of the SEC’s disclosure mandates, which aim at eliciting only financially relevant information, would survive.
June 10, 2022 in Joan Heminway, John Anderson, Securities Regulation | Permalink | Comments (0)
Tuesday, June 7, 2022
Comment Letter of Securities Law Scholars on the SEC’s Authority to Pursue Climate-Related Disclosure
This post alerts everyone to a comment letter, drafted by Jill Fisch, George Georgiev, Donna Nagy, and Cindy Williams (signed by the four of them and 26 other securities law scholars, including yours truly and Ann Lipton), affirming that the Securities and Exchange Commission’s recent proposal related to the enhancement and standardization of climate-related disclosures for investors is within its rulemaking authority. The letter was filed with the Commission yesterday and has been posted to SSRN. The SSRN abstract is included below.
This Comment Letter, signed by 30 securities law scholars, responds to the SEC’s request for comment on its March 2022 proposed rules for the “Enhancement and Standardization of Climate-Related Disclosures for Investors” (the “Proposal”). The letter focuses on a single question—whether the Proposal is within the SEC’s rulemaking authority—and answers this question in the affirmative.
The SEC’s authority for the Proposal is grounded in the text, legislative history, and judicial interpretation of the federal securities laws. The letter explains the objectives of federal regulation and demonstrates that the Proposal’s requirements are properly understood as core capital markets disclosure in the service of those objectives. The statutory framework requires the SEC to adjust and update the content of the federal securities disclosure regime in response to the evolution of the economy and markets, and, in recent decades, the SEC has done so to require disclosures on a variety of subjects from Y2K readiness, to cybersecurity, to human capital management, to the effects of the Covid-19 pandemic. Rules mandating climate-related disclosure fit with this pattern of iterative modernization. Such rules do not represent a foray into new and uncharted territory, since the SEC has a long history of requiring disclosure on environmental and climate-related topics dating back more than 50 years. Finally, the federal securities laws do not impose a materiality constraint on the SEC’s authority to promulgate climate-related disclosure requirements.
The Comment Letter therefore concludes that the SEC has the statutory authority to promulgate the Proposal, and that the climate-related disclosure rules under consideration are consistent with close to nine decades of regulatory practice at the federal level and with statutory authority dating back to 1933 that has been repeatedly reaffirmed by Congress and the courts.
There is more that has been, can, and will be said about the Commission's rulemaking proposal as a matter of process and substance. But I will leave that for another day. For now, we just wanted you to know about the filing of the letter and offer you an easy way to find it and review it.
June 7, 2022 in Ann Lipton, Current Affairs, Joan Heminway, Securities Regulation | Permalink | Comments (11)
Monday, June 6, 2022
Colin Marks: Total Return Swaps ≡ Secured Transactions?!
I am excited to be promoting here an inventive and interesting paper, Total Return Meltdown: The Case for Treating Total Return Swaps as Disguised Secured Transactions, written by friend-of-the-BLPB Colin Marks (St. Mary's School of Law). The SSRN abstract follows.
Archegos Capital Management, at its height, had $20 billion in assets. But in the spring of 2021, in part through its use of total return swaps, Archegos sparked a $30 billion dollar sell-off that left many of the world’s largest banks footing the bill. Mitsubishi UFJ Group estimated a loss of $300 million; UBS, Switzerland’s biggest bank, lost $861 million; Morgan Stanley lost $911 million; Japan’s Nomura, lost $2.85 billion; but the biggest hit came to Credit Suisse Group AG which lost $5.5 billion. Archegos, itself lost $20 billion over two days. These losses were made possible due to the unique characteristics of total return swaps and Archegos’ formation as a family office, both of which permitted Archegos to skirt trading regulations and reporting requirements. Archegos essentially purchased beneficial ownership in large amounts of stocks, particularly ViacomCBS Inc. and Discovery Inc., on credit. Under Regulation T of the Federal Reserve Board, up to 50 percent of the purchase price of securities can be borrowed on margin. However, to avoid these rules, Archegos instead entered into total return swaps with the banks whereby the bank is the actual owner of the stock, but Archegos would bear the risk of loss should the price of the stock fall and reap the benefits if the stock were to go up or were to make a distribution. Archegos would still pay the transaction fees, but the device permitted Archegos to buy massive amounts of stock without having the initial margin requirements, thus making Archegos heavily leveraged. This article argues that the total return swap contracts are analogous to and should be re-characterized as what they really are – disguised secured transactions. Essentially the banks are lending money to enable the Archegoses of the world to buy stocks, and are simply retaining a security interest in the stocks. Such a re-characterization should place such transactions back into Regulation T and the margin limits. But re-characterization also offers another contract law approach that is more draconian. If the structure of the contract violates a regulation, then total return swaps could be declared void as against public policy. This raises the specter that a court could apply the doctrine of in pari delicto and leave the parties where they found them in any subsequent suits to recover outstanding debts.
I do not teach, research, or write in the secured transactions space, but this work engages corporate finance and contract law as well. (I am grateful that Colin, among others, has encouraged my forays into contract law research over the years.) I was privileged to have the opportunity to preview Colin's arguments and offer some feedback during his research and writing of this paper, which is forthcoming in the Pepperdine Law Review. I find his argument creative and intriguing. I think you may, too.
June 6, 2022 in Contracts, Corporate Finance, Financial Markets, Joan Heminway, Securities Regulation | Permalink | Comments (1)
Friday, May 27, 2022
Kevin Douglas on "Has the Strong-Form of the Efficient Capital Market Hypothesis Crept into U.S. Securities Regulation?"
In the fall, I posted on Professor Kevin R. Douglas's article, "How Creepy Concepts Undermine Effective Insider Trading Reform" (linked below), which is now forthcoming in the Journal of Corporation Law. The following post comes from Professor Douglas. In it, he develops one theme from that article:
Would U.S. officials imprison real people for failing to adhere to the most unrealistic assumptions in prominent economic models? Yes, if the assumption is that no one can generate risk-free profits when trading in efficient capital markets. What are risk-free profits, and why should you go to jail for trying to generate them? Relying on the ordinary dictionary definition of “risk” makes the justification for criminal penalties described above seem absurd. One dictionary defines risk as “the possibility of loss, injury, or other adverse or unwelcome circumstance,” and another simply defines risk as “the possibility of something bad happening.” Why should someone face criminal liability for attempting to generate trading profits without something bad happening—without losing money? The absurdity is especially jarring when thinking about securities markets, where hedge fund managers rely heavily on risk reduction strategies.
However, if we turn to the definition of “risk” used in prominent models of the efficient capital market hypothesis (ECMH), punishing investors who attempt to generate risk-free profits seems logical, if not sensible. The ECMH is the hypothesis that securities prices reflect all available information. Additional assumptions transform this hypothesis into the implication “that it is impossible to beat the market consistently on a risk-adjusted basis since market prices should only react to new information.” Here “beat the market” means generating profits that are greater than the returns of some index of the market. With these assumptions in mind, criminalizing the attempt to generate no-risk profits can seem logical if the existence of no-risk profits indicates market inefficiencies…and we accept that a proper role of government is increasing the efficiency of securities markets. Whether or not this approach is sensible depends on whether this model of risk bears any resemblance to anything operating in the real world. And even Eugene Fama who is thought of as the father of the ECMH, acknowledges that the model “is obviously an extreme null hypothesis. And, like any other extreme null hypothesis, we do not expect it to be literally true.”
Sensible or not, I argue that U.S. courts have relied on the ECMH’s model of risk for almost 60 years. Consider just one of several examples cataloged in my forthcoming article, How Creepy Concepts Undermine Effective Insider Trading Reform. The Court in SEC v. Texas Gulf Sulphur Co. provides the following justification for imposing insider trading liability under Rule 10b-5:
It was the intent of Congress that all members of the investing public should be subject to identical market risks,—which market risks include, of course the risk that one’s evaluative capacity or one’s capital available to put at risk may exceed another’s capacity or capital. … [However] inequities based upon unequal access to knowledge should not be shrugged off as inevitable in our way of life, or, in view of the congressional concern in the area, remain uncorrected.
It may seem arbitrary to expect equal “risk” for market participants to mean equality of information, but not equality of capital or skill. However, this disconnect is in harmony with models of market efficiency that focus on whether securities prices always “fully reflect” available information. Other cases identifying the attempt to generate risk-free profits to justify imposing liability for insider trading include two cases related to Ivan Boesky and Michael Milken, and Justice Ruth Bader Ginsburg’s majority opinion in United States v. O’Hagan. To differentiate acceptable and unacceptable information advantages, Justice Ginsburg states that the “misappropriation theory targets information of a sort that misappropriators ordinarily capitalize upon to gain no-risk profits through the purchase or sale of securities.”
Can explaining liability for securities fraud by reference to “risk-free profits” mean anything other than the implicit adoption of the strong form of the ECMH? If prominent economic models inspire the reference to risk-free profits in these cases, then it is astounding how little has been said about this fact. It was a big deal when the United States Supreme Court relied on some assumptions of the semi-strong form of the ECMH to justify adopting the fraud on the market theory. It is puzzling how quietly this feature of the ECMH crept into the insider trading case law.
May 27, 2022 in Financial Markets, John Anderson, Securities Regulation | Permalink | Comments (2)
Friday, May 20, 2022
What Do FIFA, Nike, and PornHub Have In Common?
It's a lovely Friday night for grading papers for my Business and Human Rights course where we focused on ESG, the Sustainable Development Goals (SDGs), and the UN Guiding Principles on Business and Human Rights. My students met with in-house counsel, academics, and a consultant to institutional investors; held mock board meetings; heard directly from people who influenced the official drafts of EU's mandatory human rights and environmental due diligence directive and the ABA's Model Contract Clauses for Human Rights; and conducted simulations (including acting as former Congolese rebels and staffers for Mitch McConnell during a conflict minerals exercise). Although I don't expect them all to specialize in this area of the law, I'm thrilled that they took the course so seriously, especially now with the Biden Administration rewriting its National Action Plan on Responsible Business Conduct with public comments due at the end of this month.
The papers at the top of my stack right now:
- Apple: The Latest Iphone's Camera Fails to Zoom Into the Company's Labor Exploitation
- TikTok Knows More About Your Child Than You Do: TikTok’s Violations of Children’s Human Right to Privacy in their Data and Personal Information
- Redraft of the Nestle v. Doe Supreme Court opinion
- Pornhub or Torthub? When “Commitment to Trust and Safety” Equals Safeguarding of Human Rights: A Case Study of Pornhub Through The Lens of Felites v. MindGeek
- Principle Violations and Normative Breaches: the Dakota Access Pipeline - Human rights implications beyond the land and beyond the State
- FIFA’s Human Rights Commitments and Controversies: The Ugly Side of the Beautiful Game
- The Duty to Respect: An Analysis of Business, Climate Change, and Human Rights
- Just Wash It: How Nike uses woke-washing to cover up its workplace abuses
- Colombia’s armed conflict, business, and human rights
- Artificial Intelligence & Human Rights Implications: The Project Maven in the ‘Business of war.’
- A Human Rights Approach to “With Great Power Comes Great Responsibility”: Corporate Accountability and Regulation
- Don’t Talk to Strangers” and Other Antiquated Childhood Rules Because The Proverbial Stranger Now Lives in Your Phone
- Case studies on SnapChat, Nestle Bottling Company, Lush Cosmetics, YouTube Kidfluencers, and others
Business and human rights touches more areas than most people expect including fast fashion, megasporting events, due diligence disclosures, climate change and just transitions, AI and surveillance, infrastructure and project finance, the use of slave labor in supply chains, and socially responsible investing. If you're interested in learning more, check out the Business and Human Rights Resources Center, which tracks 10,000 companies around the world.
May 20, 2022 in Compliance, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Ethics, Financial Markets, Human Rights, International Business, International Law, Marcia Narine Weldon, Securities Regulation, Teaching | Permalink | Comments (0)
Friday, April 29, 2022
"We Know Wrongful Trading When We See It" - Some Observations Concerning the Recent Senate Hearing on the Insider Trading Prohibition Act
Earlier this month, the U.S. Senate Committee on Banking, Housing, and Urban Affairs held a hearing on the Insider Trading Prohibition Act (ITPA), which passed the house with bipartisan support in May of last year. Some prominent scholars, like Professor Stephen Bainbridge, have criticized the ITPA as ambiguous in its text and overbroad in its application, while others, like Professor John Coffee, have expressed concern that it does not go far enough (mostly because the bill retains the “personal benefit” requirement for tipper-tippee liability).
My own view is that there are some good, bad, and ugly aspects of the bill. Starting with what’s good about the bill:
- If made law, the ITPA would end what Professor Jeanne L. Schroeder calls the “jurisprudential scandal that insider trading is largely a common law federal offense” by codifying its elements.
- The ITPA would bring trading on stolen information that is not acquired by deception (e.g., information acquired by breaking into a file cabinet or hacking a computer) within its scope. Such conduct would not incur Section 10b insider trading liability under the current enforcement regime.
- The ITPA at least purports (more on this below) to only proscribe “wrongful” trading, or trading on information that is “obtained wrongfully.” Since violations of our insider trading laws incur criminal liability and stiff penalties, I have argued for some time that liability should be limited to conduct that is morally wrongful.
- The ITPA preserves the “personal benefit” test as a limiting principal on what otherwise would be an ambiguous and potentially overbroad test for when tipping would breach a fiduciary or similar duty of trust and confidence. Traders need (and justice demands) bright lines that will allow them to determine ex ante whether their trading is legal or will incur 20 years of prison time (but more on this below).
Now, turning to what is bad about the bill, I share some concerns raised by Professor Todd Henderson in his testimony before the Senate Committee:
- Though the ITPA codifies the personal benefit test as a limit on liability, it includes “indirect personal benefit[s]” within its scope. As Henderson points out, “[i]t is possible to describe virtually any human interaction as providing an ‘indirect benefit’ to the participants. Instead, the law should reflect the common sense notion that the source of information either received something tangible and valuable in return or what amounts to a monetary gift to a relative or friend.” The personal benefit test only fulfills its intended function as a limiting principle if it imposes real limits on liability. The test should therefore only be satisfied by objective evidence of self-dealing. If indirect psychological or other benefits that can be found in any voluntary human action can satisfy the test, then it cannot function as a limit on liability.
- At least some versions of the ITPA include a catchall provision to the definition of wrongfully obtained or used information that would include “a breach of a confidentiality agreement, [or] a breach of contract.” Not only does this challenge the time-honored concept of efficient breach in the law of contracts, but as Professor Andrew Verstein has argued, this provision can open the door to the weaponization of insider trading law through the practice of “strategic tipping.” Professor Henderson raised this concern before the Senate committee, noting that so broad an understanding of wrongful trading is “ripe for abuse, with companies potentially able to prevent individual investors from trading merely by providing them with information whether they want it or not.” The recent examples of Mark Cuban and David Einhorn come to mind.
- The ITPA would impose criminal liability for “reckless” conduct. As Henderson explained to the Committee, under the ITPA, “anyone who ‘was aware, consciously avoided being aware, or recklessly disregarded’ that the information was wrongfully obtained or communicated can have a case brought against them. The ITPA is silent on the meaning of ‘recklessly disregarded,’ which would appear to rope in innocent traders along with actual wrongdoers.” Moreover, permitting mere recklessness to satisfy the mens rea element of insider trading liability will no doubt have a chilling effect on good-faith transactions based on market rumors that would otherwise be value enhancing for traders, their clients, and the markets. The loss of such trades will diminish market liquidity and reduce price accuracy.
- Finally, Henderson raised the concern that the ITPA lacks an “exclusivity clause stating that it will be the sole basis for bringing federal insider trading claims.” Henderson explained that “allowing prosecutors to cherry pick their preferred law is no way to provide clear rules for the market.” Professor Karen Woody has written about how prosecutors may be starting to bring insider trading cases under 18 U.S.C. § 1348 to avoid the court-imposed personal benefit test under Exchange Act §10b. Without an exclusivity clause, prosecutors will be free to make the same end run around the personal benefit test imposed by the ITPA.
Finally, the ITPA is straight-up ugly because, while it promises that it will limit insider trading liability (which can be punished by up to 20 years imprisonment) to only “wrongful” conduct, the bill defines the term “wrongful” in a way that suggests the drafters have no intention of delivering on that promise. For example, as noted above, some versions of the bill define any breach of contract as “wrongful,” but this is in clear tension with common sense, common law, and the doctrine of efficient breach.
In addition, though there is ambiguity in the text, current versions of the ITPA appear to embrace SEC Rule 10b5-1’s “awareness” test for when trading on material nonpublic information incurs insider trading liability. Under the awareness test, a corporate insider incurs insider trading liability if she is aware of material nonpublic information while trading for totally unrelated reasons. In other words, liability may be imposed even if the material nonpublic information played no motivational role in the decision to trade. But if the material nonpublic information played no motivational role, then the trading cannot be judged “wrongful” under any common-sense understanding of that term.
For these (and other reasons there is no space to address here), the ITPA leaves too much room for play in its definition of what constitutes “wrongful” trading and tipping to cohere with our common-sense understanding of that term. Former SEC Commission Robert J. Jackson assured the Committee that “we know wrongful trading when we see it.” Presumably Professor Jackson’s implication was that the SEC and DOJ can be trusted to exercise sound discretion in interpreting the play in the statutory language. In response, I offer the following question for Professor Jackson or any reader of the ITPA to consider: Would issuer-licensed insider trading violate the statute? I have defined “issuer licensed insider trading” as occurring where:
(1) the insider submits a written plan to the firm that details the proposed trade(s);
(2) the firm authorizes that plan;
(3) the firm has previously disclosed to the investing public that it will permit its employees to trade on the firm’s material nonpublic information when it is in the interest of the firm to grant such permission; and
(4) the firm discloses ex post all trading profits resulting from the execution of these plans.
I have argued that trading under these conditions is neither morally wrongful nor harmful to markets. If it violates ITPA, what provisions? I hope some readers will share their thoughts on this in the comments below!
April 29, 2022 in Current Affairs, Ethics, Financial Markets, John Anderson, Securities Regulation, White Collar Crime | Permalink | Comments (1)
Saturday, April 23, 2022
Elon Musk is a Blessing and a Curse
I'm doing what may seem crazy to some- teaching Business Associations to 1Ls. I have a group of 65 motivated students who have an interest in business and voluntarily chose to take the hardest possible elective with one of the hardest possible professors. But wait, there's more. I'm cramming a 4-credit class into 3 credits. These students, some of whom are learning the rule against perpetuities in Property and the battle of the forms in Contracts while learning the business judgment rule, are clearly masochists.
If you're a professor or a student, you're coming close to the end of the semester and you're trying to cram everything in. Enter Elon Musk.
I told them to just skim Basic v. Levenson and instead we used Rasella v. Musk, the case brought by investors claiming fraud on the market. Coincidentally, my students were already reading In Re Tesla Motors, Inc. Stockholder Litigation because it was in their textbook to illustrate the concept of a controlling shareholder. Elon's pursuit of Twitter allowed me to use that company's 2022 proxy statement and ask them why Twitter would choose to be "for" a proposal to declassify its board, given all that's going on. Perhaps that vote will be moot by the time the shareholder's meeting happens at the end of May. The Twitter 8-K provides a great illustration of the real-time filings that need to take place under the securities laws, in this case due to the implementation of a poison pill. Elon's Love Me Tender tweet provides a fun way to take about tender offers. How will the Twitter board fulfill it's Revlon duties? So much to discuss and so little time. But the shenanigans have made teaching and learning about these issues more fun. And who knew so many of my students held Twitter and Tesla stock?
I've used the Musk saga for my business and human rights class too. I had attended the Emerge Americas conference earlier in the week and Alex Ohanian, billionaire founder of Reddit, venture capitalist, and Serena Williams' husband, had to walk a fine line when answering questions about Musk from the CNBC reporter. The line that stuck out to me was his admonition that running a social media company is like being a head of state with the level of responsibility. I decided to bring this up on the last day of my business and human rights class because I was doing an overview of what we had learned during the semester. As I turned to my slide about the role of tech companies in society, we ended up in a 30 minute debate in class about what Musk's potential ownership of Twitter could mean for democracy and human rights around the world. Interestingly, the class seemed almost evenly split in their views. While my business associations students are looking at the issue in a more straightforward manner as a vehicle to learn about key concepts (with some asking for investment advice as well, which I refused), my business and human rights students had a much more visceral reaction.
Elon is a gift that keeps on giving for professors. He's a blessing because he's bringing concepts to life at a time in the semester where we are all mentally and physically exhausted. Depending on who you talk to in my BHR class and in some quarters of the media, he's also a curse.
All I know is that I don't know how I'll top this semester for real-world, just-in-time application.
A tired but newly energized professor who plans to assign Ann Lipton's excellent Musk tweets as homework.
April 23, 2022 in Corporate Governance, Corporate Personality, Corporations, Current Affairs, Financial Markets, Law School, Management, Marcia Narine Weldon, Securities Regulation, Shareholders | Permalink | Comments (0)
Friday, April 15, 2022
Is the SEC Proposing a "Loaded Question" Climate Disclosure Regime?
Shortly after President Barack Obama’s first press conference in 2009, the Huffington Post published an article, "When Did You Stop Beating Your Wife?", that challenged the false premises of many of the questions being asked of the new president. The article opens by noting:
Sooner or later every human being on the face of this planet is confronted with tough questions. One of the toughest and most common is the infamous loaded question, “when did you stop beating your wife?” which implies that you have indeed been beating your wife. How do you answer without agreeing with the implication? How do you not answer without appearing evasive?
The author’s solution is that you should refuse to answer the question by simply responding, “no,” or by challenging the false assumption imbedded in the question. But what if the question is not asked at a press conference, by opposing counsel in the courtroom, or at a cocktail party, but as part of a federally mandated disclosure regime? This is a dilemma issuers may face if the Securities and Exchange Commission’s (SEC’s) proposed rule to "Enhance and Standardize Climate-Related Disclosures for Investors" is adopted.
Existing SEC disclosure rules and guidance already require that issuers disclose man-made-climate-change-related risks that would materially impact market participants’ investment decisions concerning the company. Nevertheless, the SEC has determined that the existing regime grants boards too much discretion in deciding whether and how to disclose climate risk—which has resulted in climate-related disclosures that are insufficiently "consistent," "comparable," and "clear."
The SEC’s proposed changes to the disclosure regime would compel all publicly-traded companies to answer specific, standardized climate-related questions concerning, for example, the physical risks of human-caused-climate-related events (e.g., “severe weather events and other natural conditions”) on their business models and earnings in a manner that will be consistent and comparable with the answers of the thousands of other regulated issuers. But what if the boards’ honest answers to these difficult questions cannot be made to fit the SEC’s proposed one-size-fits-all mold? What if some issuers question the premises of the questions?
What if, for example, a board is not convinced that extreme weather events such as hurricanes, tornadoes, wildfires, droughts, etc., can be traced directly to human versus non-human causes? In such circumstances, mandatory reporting on either transitional or physical risks due to human-caused climate change might look a lot like mandatory disclosures on questions like “When did you stop beating your spouse?” Can issuers satisfy the SEC’s reporting requirements by simply answering “no,” as the Huffington Post author suggested President Obama should have answered such questions, or by challenging the premise of the question?
There is no doubt that the extent, effects, and appropriate response to human-caused-climate change is a partisan issue in the United States. One Vanderbilt survey found that 77.3% of respondents who identify as “liberal” believe that climate change is a serious problem, but only 17.2% of those who identify as “conservative” regard climate change as a serious problem. Moreover, the division over the impacts and appropriate responses to climate change are not just political—they exist in the scientific community as well. For example, Steven E. Koonin, a former Undersecretary for Science in the U.S. Department of Energy under President Obama, and member of the Academy of Sciences, recently published a book, Unsettled: What Climate Science Tells Us, What It Doesn’t, and Why It Matters, which questions a number of the premises informing the SEC’s proposed disclosure regime.
Take, as just one example, the proposed rule’s mandatory disclosure of “physical” risks to issuers due to extreme weather events resulting from human-caused-climate change. The home page of the Task Force on Climate-Related Financial Disclosures, which the SEC credits as a principal source for its proposed rule, includes a video presentation by former Democratic Presidential Candidate, Michael Bloomberg, stating that climate change is a “crisis that shocked the [financial] system” in 2021: “wildfires, heat, flooding, and other extreme weather events have devastated communities and cost trillions of dollars this year alone.”
The premise of Bloomberg’s statement, which the SEC has effectively adopted, is that our models can reliably trace these extreme weather events to human causes. But is this true? Koonin points out that while a recent U.S. government climate report claims that heat waves across the U.S. have become more frequent since 1960, it “neglected to mention that the body of the report shows they are no more common today than they were in 1900.” Koonin also points out similar holes in common claims that human-caused climate change is responsible for extreme weather events like flooding, wildfires, and hurricanes. More fundamentally, Koonin argues that the new field of “event attribution science,” which provides the principal basis for claimed causal links between human influences and extreme weather events is “rife with issues,” and he is “appalled such studies are given credence, much less media coverage.”
None of the above should be interpreted as an attempt on my part to take sides in the climate debate. (I am no authority; my PhD is in philosophy, not in anything useful.) It is just to illustrate how these issues continue to be highly contested subjects of debate in both political and scientific circles.
The worry I raise here is that this sphere of discourse is far too contested and politically charged to be the subject of a mandatory disclosure regime. In response to challenges by Commissioner Hester Peirce and others that the SEC’s proposed rule on climate disclosure compels speech in a manner inconsistent with the First Amendment, Commissioner Gensler has responded that the reporting requirements do not mandate content. But, again, is this correct? If the disclosure questions are loaded, don’t they (at least implicitly) dictate the content of the response—particularly if the questions are carefully designed to elicit “standardized,” “consistent,” “comparable,” and “clear” answers?
April 15, 2022 in Corporate Governance, Financial Markets, John Anderson, Securities Regulation | Permalink | Comments (1)
Monday, April 11, 2022
The Federalization of Corporate Governance - Heminway on Karmel
Last May, I posted on a wonderful two-day event--a symposium hosted over Zoom by Brooklyn Law School celebrating the career of Professor Roberta Karmel. As I noted then, I was honored to be invited to speak at the event. It was so inspiring.
I have just posted the essay that I presented at the symposium, "Federalized Corporate Governance: The Dream of William O. Douglas as Sarbanes-Oxley Turns 20" (recently published by the Brooklyn Journal of Corporate, Financial & Commercial Law), on SSRN. It can be found here.
The roadmap paragraph from the essay's introduction offers a brief description of the essay's contents.
This essay focuses on the federalization of U.S. corporate governance since Sarbanes-Oxley—and, more specifically, since Roberta’s article was published in 2005 [Realizing the Dream of William O. Douglas — The Securities and Exchange Commission Takes Charge of Corporate Governance, 30 DEL. J. CORP. L. 79 (2005)]—pulling forward key aspects of Roberta’s work in Realizing the Dream. To accomplish this purpose, the essay first briefly reviews the contours of Roberta’s article. It then offers observations on corporate governance in the wake of (among other things) the public offering reforms adopted by the U.S. Securities and Exchange Commission (SEC) in 2005, the SEC’s 2010 adoption of Rule 14a-11, the 2010 enactment of the Dodd–Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), the 2012 enactment of the Jumpstart Our Business Startups Act (JOBS Act), and recent adoptions of corporate charter and bylaw provisions that constrain aspects of shareholder-initiated federal securities and derivative litigation. Finally, before briefly concluding, the essay provides brief insights on the overall implications for future corporate governance regulation of these and other occurrences since the publication of Realizing the Dream.
I found it great fun to build on the architecture of Roberta's earlier work in writing this piece. Work on the essay allowed me to appreciate in new ways the many linkages between corporate governance and corporate finance--an appreciation that will no doubt continue to infuse my teaching with new ideas over time. I hope some of you will take time out to read the essay and that you gain some insight from it. Comments are, of course, always welcomed.
April 11, 2022 in Corporate Finance, Corporate Governance, Joan Heminway, Legislation, Securities Regulation | Permalink | Comments (0)