Credit Default Swaps (CDS), like banks, are mind-blowingly simple and potent credit replication machines. Banks replicate their own credit—conjuring gobs of money out of thin air—with a license and a convoluted web of guarantees from the state. CDS can replicate anyone’s credit, with industry-coordinated standard contracts embedded in a tangle of carve-outs, safe harbors, and exemptions from statutes and regulations. The 2007-2009 financial crisis brought a heap of bad press and new regulatory requirements for CDS dealers and trading infrastructure, but did not fundamentally alter the contractual governance paradigm at the heart of this multi-trillion dollar market.
Opportunistic or downright slimy behavior in a space so carefully shielded from substantive regulation can be hard to diagnose, even when it poses an existential threat to the CDS market and could spill beyond it. Recent reports of bad behavior have prompted high-profile lawsuits, contract reforms, and a crop of law review articles revisiting contractual, statutory, and regulatory ecosystems for CDS.
The range of approaches reflects the multifaceted challenge, but can be confusing. Gina-Gail Fletcher’s analysis in Engineered Credit Default Swaps: Innovative or Manipulative? is thoughtful, comprehensive, and a good place to start.
Loaves, Fishes, and Freedom of Contract
Suppose Creditor Cindy Corp. buys $100 million in bonds issued by Borrower Ben, due a year hence, with a $3 million interest payment due in six months. At the other end of the galaxy, Trader Joe—a stranger to Cindy and Ben—bets that Ben is broke. Another stranger, Dealer Dave, takes the opposite side of the bet. He offers to pay Joe $100 million if Ben does not pay Cindy in full and on time, in exchange for a $3 million fee. If Joe accepts, he and Dave would be in a CDS contract on Ben (the “reference entity”), where Joe is a “protection buyer” and Dave a “protection seller.”
If Ben repays Cindy as promised, Dave earns $3 million, just like Cindy. If Ben defaults at the end of the year, Dave loses $100 million, less $3 million, just like Cindy.
The new CDS contract doubles the galaxy’s exposure to Ben’s credit. Absent regulatory constraints, any two counterparties willing to take opposite sides in a bet on Ben’s credit could do the same as many times as they wish. Losses from a Ben default could keep multiplying in distant corners of the galaxy entirely unconnected to Ben or Cindy.
CDS terms need not track Ben’s original debt contract precisely. Joe and Dave might have a contract for six months (through Ben’s interest payment), or for half the notional principal amount. Because CDS isolate and transfer credit risk, the list of “credit events” that may trigger Dave’s obligation to pay Joe differs from the “events of default” in Ben’s contract with Cindy. The CDS would also ignore Cindy’s actual response to Ben’s distress: the bet is on Ben’s condition, not on Cindy’s risk management.
For instance, if Ben’s interest payment is a few days late, Cindy might let it go if she knows Ben is good for the money, but Dave would still have to pay Joe. If Ben hits a rough patch, he and Cindy might amend their contract to postpone the maturity date, avoiding default to Cindy—but not Dave’s obligation to pay Joe. If Ben files for bankruptcy protection, it would stay Cindy’s claim on Ben, but not Joe’s claim on Dave.
Joe and Dave inhabit a parallel Ben-credit universe, simplified and abstracted from Ben’s real-world relationship with Cindy. Ben’s business problems can affect Joe, Dave, and other perfect strangers elsewhere in the galaxy in ways that are neither visible nor manageable under the Ben-Cindy contract.
Trader Joe and Dealer Dave do not write their CDS contract from scratch. ISDA, the derivatives industry association, has produced standard terms for CDS and other derivatives since the 1990s, leaving the parties to customize a limited set of relationship- and transaction-specific items. ISDA also works with governments and lawyers around the world to ensure that its contracts are enforceable everywhere. Robust industry-coordinated standardization often gets credit for derivatives market liquidity.
Keeping regulators at bay remains an important part of ISDA’s work. To succeed, it must foster public faith in the industry’s capacity to regulate itself: preventing and mitigating market disruptions, responding to shocks, and adapting contracts and market practice to new circumstances. To that end, ISDA has taken on new functions over time. It has established an auction procedure to calculate payouts, and a limited adjudication mechanism in the form of industry-staffed regional “Determinations Committees,” which decide whether a CDS credit event has occurred.
The result is a peculiar ecosystem. The same mechanisms that help the industry adapt and respond to shocks also risk transmitting hiccups in any given bilateral relationship or seemingly isolated contract interpretation to distant markets and otherwise-unrelated firms.
Knaves in Loopholes
ISDA’s CDS contract interpretation posture tends to the formal end of the spectrum. In most cases, Determinations Committee decisions have stuck to plain meaning and the four corners of the contract. This approach is at least intuitively consistent with the emphasis on market liquidity: importing relational context in an arm’s length wager could make it hard to trade.
On the flip side, a commitment to narrow textual reading creates arbitrage opportunities, or worse, invites behavior that is patently inconsistent with the spirit of the CDS contract and its market function.
Enter Hovnanian, a home building firm, and GSO Capital Partners, a hedge fund affiliate of the Blackstone Group. In 2017, GSO offered to refinance Hovnanian’s debt on below-market terms, provided Hovnanian borrowed just over $1 million from its own subsidiary and briefly defaulted on an interest payment. The late payment was enough to trigger more than $330 million in CDS that GSO had bought from another hedge fund, Solus, and Goldman Sachs, but not enough to harm the builder’s credit otherwise. Under ISDA’s auction rules, the debt to Hovnanian’s subsidiary also helped inflate the payout to GSO. Solus lobbied ISDA, made a public stink about GSO’s slimy ways (it had pulled a similar trick in 2013), sued, and settled in 2018.
In the end, Hovnanian got cheaper funding and GSO might have made a bundle off another hedge fund. In the words of one prominent commentator, the incident might have threatened the “integrity and viability of the CDS market,” but had no serious “real world” (read real economy) consequences. Who cares?
Fletcher’s article does a lovely job wading through the thicket of pros and cons to answer this question. The cons come out ahead precisely because she takes CDS to be valuable as a source of market liquidity. If CDS contracts detach from the underlying credit risk and become bets on the likelihood of collusion between the reference entity and a CDS counterparty (in the manner of insurance fraud, minus insurance regulation), they lose value for CDS and credit market liquidity, price discovery, and credit access.
The article’s typology of “engineered CDS”—miscreant behavior involving CDS counterparties and the reference entity—covers Hovnanian-style “manufactured” defaults driven by protection buyers, as well as protection seller schemes to kick default just beyond the CDS contract term, or to frustrate the point of a CDS contract by moving all debt from the reference entity to its subsidiary. In all three transaction types, the trouble starts in the CDS parallel universe; smoke may drift into the real world, but the harm is uncertain and would be hard to ascertain empirically.
To the extent these arrangements are harmful, Fletcher’s doctrinal analysis is especially worthwhile for illustrating the breadth and interdependence of contractual, statutory, and regulatory maneuvers shielding CDS contracts from government intervention. Express contract terms and recent court decisions virtually foreclose arguments about good faith, while the SEC and CFTC jurisprudence make it hard to prove manipulation, particularly where the existence of engineered transactions is widely known and baked into CDS prices. This might explain why the SEC and the CFTC have limited themselves to censorious press statements.
Meanwhile, ISDA has tweaked its contracts again, putting more stock in adjudication and Determinations Committees’ judgment. The Determination Committees now have the authority to distinguish between credit events stemming from credit deterioration and those (engineered ones) detached from it.
I share Fletcher’s skepticism of Determination Committees’s capacity to lean into this new authority; I also suspect it is as good as it gets. Instead of investing in ISDA’s already strained adjudication apparatus, I might prefer to revive good faith (the article offers two ways to go about it) and, even less plausibly, a return to public adjudication. Generalist judges might get it wrong sometimes, but the derivatives industry is better equipped than most to compensate for judicial missteps. Shielding it from inexpert scrutiny has not made the public more informed or more sympathetic, and has hardly been good for its own health.
Corporate law has a short historical memory. One result is that conceptual battles that go nowhere get refought, as a look at much of the literature generated in the wake of Citizens United will confirm. There are a few historical classics in the academic literature though. The lead publication in this short stack is Harold Marsh’s Are Directors Trustees? Conflicts of Interest and Corporate Morality, published in The Business Lawyer in 1966. Marsh told a stark story about the decline of the duty of loyalty, which he said went from flat prohibition of self-dealing transactions in 1880 to a general permission subject to judicial fairness review in 1960. Norwood Beveridge challenged Marsh’s description of the early period in a couple of papers published in the 1990s, but the Marsh account has held its place.
Now comes LSE’s (London School of Economics) David Kershaw with a masterful comparative history of corporate fiduciary law in the United States and the United Kingdom, The Foundations of Anglo-American Corporate Fiduciary Law. (The book’s introduction is posted here.) Kershaw seconds Beveridge and dispatches Marsh in a splendid account. The comparison holds the key. Yes, the UK had a prohibition that could be relaxed with a shareholder vote, a prohibition that found its way into the law of a number of US states. But what worked in the UK proved dysfunctional in the US. The conceptual framework of UK corporation law came from partnership, while the US framework came from legislated incorporations. Where the UK had default rules, the US had mandates, with the result that the self-dealing prohibition really was a prohibition here where it was not in the UK. Meanwhile, many states never adopted it and, analogizing to trust law, let officers and directors contract with the company subject to approval by a disinterested director majority.
What in Marsh comes forth as a story of indefensible accommodation of the management interest, in Kershaw is a story of legal doctrine working itself out within its own four corners. Indeed, Kershaw is affirmatively, brazenly positivist and anti-realist. I cannot join him in that. But that doesn’t stop me from thoroughly enjoying his treatment and according him much the better of the argument on this particular point. It turns out that what I thought was a contemporary turn to process review is in fact a reversion to a basic pattern.
Marsh and self-dealing transactions aren’t the only thing on offer here—the law of self-dealing transactions is one of four modules. The others cover the business judgment rule, the duty of care, and the law of corporate opportunities. For each, Kershaw traces back to a start point in UK common law and then brings both systems forward in time. For example, the duty of care comes from bailments. As the doctrinal logic unfolds differently across the two national economies, a compelling story gets told. I particularly benefited from the account of the business judgment rule, as to which my understanding was embarrassingly imperfect. I also greatly benefited from what was for me a needed introduction to UK company law.
Kershaw cares deeply about corporate law as law and manages to communicate his enthusiasm to his reader. Such passion is surprisingly rare in the field, making this book all the more welcome.
Yuval Feldman’s book, The Law of Good People: Challenging States’ Ability to Regulate Human Behavior provides a thought-provoking framework to advance our understanding of how governments should deal with misconduct committed by normative citizens blinded by cognitive biases regarding their own ethicality. While it does not discuss corporate law, this novel framework can offer new insights on fundamental questions of corporate law, securities regulation, and corporate misconduct.
The dominant enforcement paradigm is based on the idea that governments deal with “bad people”—those pursuing their own self-interest—by setting prices or sanctions for misconduct. Feldman, however, draws on the neglected discipline of behavioral ethics to argue that many forms of “ordinary unethicality”—such as workplace discrimination, insurance fraud or tax evasion—are committed by “good people” blinded by self-serving processes such as self-deception, motivated reasoning, ethical dissonance, and moral disengagement. Feldman convincingly shows that the existing analysis of law enforcement misses an important category of good people who may violate legal norms without feeling immoral or thinking that they are indeed in violation of law.
The book pays special attention to subtle conflicts of interest, where many good people may not recognize that there is something wrong or unethical about their behavior. The book explains that a focus on those “good people” will enable regulators to determine in advance which types of situation are likely to encourage acts of ordinary ethicality and develop appropriate regulatory responses. Feldman explores ways to expand the regulatory toolbox in order to allow the government to shape the conduct of good people in an effective manner. Specifically, the book argues that the focus on good people requires a shift in the focus of the legal regime from ex post liability to ex ante design.
Although Feldman does not address corporate law, securities regulation or corporate misconduct, both his thesis and the framework he develops offer important lessons for corporate law scholarship. The book convincingly demonstrates both the complexity of regulating behavior in the corporate setting and the promise of alternatives. Many fundamental corporate law questions arise when “good people” make self-serving decisions, and many cases of corporate misconduct involve corporate executives who made business decisions that turned out to have catastrophic effects. The book’s innovative paradigm uncovers the complexity of using legal rules to improve corporate decision-making processes.
One of the main challenges for corporate law is addressing directors’ conflicts that arise not from pure financial incentives, but from the realities of the modern corporation. Boards of directors need to decide how much to pay the company’s CEO, whether the company should sue other directors for alleged violations of the duty of loyalty or the duty of care, and whether the company should transact with other corporate insiders. Directors’ failure to make optimal decisions under these circumstances is often presented as purely incentive driven. Under this view, directors have self-interested reasons to cater to insiders’ wishes in order to continue serving as directors (and enjoy the income and the networking opportunities). This influential view arguably calls for expanding directors’ liability for breaches of their fiduciary duties.
Feldman’s framework, however, demonstrates that the dynamics of directors’ decision-making may be far more complicated. Behavioral ethics takes the view that people’s actions are based on self-interest in that they serve a need to maintain a positive and coherent view of the self. Thus, the effect that self-interest has may be implicit—by modifying cognitive processes without people’s admitting to themselves that such influence exists—rather than explicit. Under this account, subtle conflicts may lead directors who genuinely believe that they do the right thing to make poor (but self-serving) decisions. Directors are subject to a vague, open-ended standard (fiduciary duties) that requires them do what is best for the corporation and ignore their own self-interest. Directors, however, must make business decisions under conditions of uncertainty about the best course of action for the company.
Consider, for example, independent directors who are asked to decide whether the company should enter into a major transaction with its controlling shareholder. The controlling shareholder has the power to nominate directors and the directors serve at her will. Under these conditions, even when the transaction with the controller reduces value, implicit cognitive processes might lead the directors to believe that the transaction would benefit the company and its minority shareholders. In other words, it may simply be the case that directors use motivated reasoning to make decisions that cater to those they are supposed to monitor—the company’s CEO or its controller. Feldman’s analysis therefore suggests that subjecting directors to more liability won’t be effective in containing poor decisions that arise from structural bias. Rather, corporate law should resort to ex ante measures (for example, change the regime governing director elections) or focus on improving the process for making board decisions.
To summarize, I strongly recommend this fascinating book for corporate law scholars interested in getting a new perspective on how corporate law could more effectively affect the behavior of companies’ officers and directors.
Hillary Sale, Social License and Publicness
(June 13, 2019), available at SSRN
Why can’t Facebook persuade senators to help the company get its new Libra cryptocurrency off the ground? Why is VW running strange apology ads with Simon & Garfunkel’s Sounds of Silence and an allusion to light ahead? Many more questions could follow in this vein and the concept we’ve been looking for is an erosion of “social license.”
Sometimes an article has an idea so sticky that once you read it, you see relevant examples everywhere. You have a better vocabulary to discuss a phenomenon that you have long observed and might otherwise have used many words to describe. Professor Hillary Sale’s new article Social License and Publicness achieves all of this and more.
Most importantly, Sale brings the sociological theory of social license into the business law discourse, enabling a deeper discussion of the dynamic, real-world context in which corporations act. Few corporate law scholars follow the sociology literature and Sale makes a valuable contribution by importing it and offering trenchant legal and business analyses.
As Sale explains, social license refers to the idea that businesses are social institutions that “exist with permission from the communities in which they are located,” as well as from other stakeholders, and are subject to public accountability. Businesses receive social license by developing “legitimacy, credibility, and trust.” In short, operating a business requires both legal license and social license—the former “can be applied and paid for,” but the latter “must be earned with consistent, trustworthy behavior.”
The magic of understanding this concept and giving it salience with a label is that you can then see predictable consequences that arise when a business loses this essential ingredient for sustainable operation. Sale illustrates the loss of social license with two case studies, Wells Fargo and Uber. While other scholars have studied these companies and their scandals, Sale offers a unique perspective that is grounded in her highly influential concept of “publicness.”
She starts the case studies by carefully detailing how the companies originally established their social license. Taking, for example, Wells Fargo, she recounts how it had been one of the top-ranked banks in the U.S. and one of the largest companies in the world. It had, quite amazingly, come out of the financial crisis of 2008 relatively unscathed and with a good reputation. Sale is a great storyteller here, building the narrative tension with positive details and then bit by bit taking the reader through the cultural and organizational problems that allowed for widespread illegal activity to grow at the bank.
Further, she highlights the Los Angeles Times articles that brought the Wells Fargo consumer account scandal to light and sparked public outrage and a series of costly consequences. Her discussion particularly shines in describing the aftermath as the reader can clearly connect the loss of social license with the outcomes of publicness crashing down on the bank. The article collects the wide range of responses that can flow from eroding public trust, including everything from negative publicity, protests, and consumer boycotts, to new regulation, enforcement, and litigation.
Sale’s insights will be enormously helpful to scholars working on issues of compliance, ESG (environmental/social/governance), corporate culture and reputation, human rights, political activity, board oversight, and more. The article has already informed my analysis of the social pushback that can arise as a constraint on regulatory arbitrage and undoubtedly others will also owe Sale an intellectual debt.
Moreover, the article enriches not only academic debate, but also gives corporate directors and executives a valuable tool to implement stakeholder-based corporate governance practices and engage in risk management. Sale provides specific actions that corporate boards can take to avoid losing social license. Notably, with the pre-IPO Uber case study, she also shows that being a private company does not equate to operating under the radar. Startups as well as listed companies should keep an eye on their public responsibilities and their impact on stakeholders.
Finally, the article could not have come at a better time—the CEO of one of the world’s largest institutional shareholders has recently called on corporate leaders to pay attention to the precise issue of social license and to account for the public nature of their actions. Interest in corporate ESG initiatives is at an all-time high. Daily headlines capture Big Tech’s destruction of public trust and the intensifying outcry for a regulatory overhaul. All of the above, from content to timing, makes Social License and Publicness a must-read article.
Climate change and its implications are among the most debated and pressing issues of our time. The effects of climate change are felt throughout the country and the world. Raging wildfires, rising oceans, overflowing rivers, devastating storms, crippling drought, and other weather phenomena have directly disrupted vast populations, nation-states, ecosystems, and businesses across the globe. Policymakers, executives, scientists, lawyers, and activists have long discussed and debated how best to confront these and other challenges of the environment.
In her recent article, The Law of the Corporation as Environment Law, Professor Sarah Light makes a valuable contribution to these discussions and debates by arguing for a more expansive view of environmental law:
In light of the significant impact that firms can have on the environment (often, though not always, when they are organized as publicly traded corporations), this Article argues that the law governing the corporation throughout its life cycle—corporate law, securities regulation, antitrust law, and bankruptcy law—should be understood as a fundamental part of environmental law.
(P. 140.) The article highlights the insight and purchase that could be derived from seeking to understand the broader corpus of business law as part of environmental law. For instance, the article suggests that such a broader, unified understanding could bring about an integration and harmonization of the five key ways in which policymakers can impact firm environmental decisions: mandates, incentives, safe harbors, disincentives, and prohibitions. Furthermore, the article notes that thinking about business law broadly as part of environmental law can leverage the tools, powers, and influence of businesses to solve some longstanding issues that environmental law has thus far failed to adequately address on its own. Businesses and business law in many instances can better marshal market-oriented tools and policies to help confront the challenges of the environment where environmental activists and traditional environmental law have faltered and fallen short.
Professor Cristie Ford’s prior JOTWELL review of the article here viewed it as a valuable “reframing exercise that generates new practical strategies” for the urgent problems of climate change that cannot wait for the recalcitrant, restrained processes of political policymaking. Professor Ford’s review also noted that financial institutions can play a particularly powerful role in using business law and business tools to impact environmental law and policy because of the existential importance of finance in the lives of businesses.
Whether this leveraging of the means of business law for the ends of environmental law is an appropriate shift in legal understanding is subject to legitimate debate, but the power and influence of such a shift is clearer and less debatable. Through numerous decisions related to matters like supply chains, energy, manufacturing, procurement, transportation, and social responsibility, businesses decisions directly impact the environment. Furthermore, businesses wield enormous resources and influence in shifting and shaping public opinion and public policy. Businesses and their executives have significant access to elected officials, government regulators, and thought leaders across government and society throughout the world. By using the legal tools offered by corporate law, securities regulation, antitrust law, and bankruptcy law, business leaders can amplify their power and influence on environmental issues.
In an era where many large public-facing corporations see themselves as more than merely amoral engines of profits, revenues, goods, and services, Professor Light’s article has particular resonance. Many of today’s businesses and business leaders see themselves and their enterprises as vehicles for producing social good and social change. This is evidenced in part by the normalization of corporate social responsibility among large businesses, as Professor Ford also noted in her prior review, and the emergence of corporate social activism on a wide-range of important social issues, including those connected to the environment among many businesses of all sizes. Professor Light’s article provides a way by which businesses, executives, and other corporate stakeholders interested in environmentalism can effectuate legal, policy, and social change with legal and non-legal tools readily available to them in boardrooms, courtrooms, and beyond. Working for the cause of environmentalism no longer means just working for the government or an environmental advocacy group, rather it can also mean working for and with large corporations on environmental issues. Today, environmentalism is no longer an either/or proposition between government and advocacy organizations on the one hand and private enterprise on the other hand, rather it is a both/and proposition that reflects the possibility of thoughtful combined, collective efforts.
The rising implications and impact of climate change and the environment will present serious questions and challenges for political and business leaders in the coming years. Even more so than now, environmental issues will become business issues and business issues will become environmental issues. Thus, as Professor Light points out, “[t]he law of the corporation is environmental law[;]” and vice versa (P. 137.) Together, business law and environmental law may form a powerful double-helix of influence and policymaking that could hold the code to solving existential, persisting, and vexing environmental problems. Whether this fruitful fusion of environmental law and business law comes to pass, remains to be seen. And whether the complex contemporary crucible of business, politics, and activism helps or hinders this fusion also remains unclear. Nevertheless, what is clear is that as we confront anew the pressing problems of climate change and the environment, Professor Light’s article offers us a valuable conceptual pathway towards possibly better and more workable solutions.
Perhaps the marker of a really good observation is that once it’s been made, it seems obvious, and we’re surprised that it hasn’t been made before. This is Sarah Light’s article, The Law of the Corporation as Environmental Law.
Climate change is a terribly urgent problem. Limiting global warming is a priority that, according to some, calls for wartime levels of mobilization. Yet in an imperfect world, with consensus on basic priorities lacking, some of us have learned to look not only to ambitious regulatory programs but also to the kind of incremental work that, unglamorous as it may seem, could produce real change now. It may be the dysfunctional state of current high politics in the US and the UK that has provoked several academics to think, again, about what might be possible through other mechanisms (see, e.g., Tom Lin, Iris Chiu & Edward Greene, John Armour et al.).
Corporate Social Responsibility (CSR)/ Environmental, Social and Governance (ESG) is not new. What is unique in Light’s article is that she argues for seeing corporate and business law—corporate law, securities regulation, antitrust, and bankruptcy—together, as a “single phenomenon with significant implications for firms’ environmental decision making.” (P. 145.) That is, she argues that corporate and business law should be understood as environmental law.
Drawing on a rich and varied set of sources, Light traces the history of environmental law, from thinking of a firm as a target/object of regulation, to more diffuse strategies that acknowledge the importance of embedding environmental concerns within an organization. She builds on important transnational scholarship in environmental law and regulatory theory. She sets out a useful and careful list of ways in which public actors can shape private (individual and corporate) environmental decisions. At the same time, as she correctly notes, environmental law approaches tend not to think in terms of corporate or business law mechanisms. Environmental law casebooks, for example, do not generally discuss the business judgment rule, the shareholder primacy concept, or antitrust or bankruptcy implications that may arise from a corporation’s environmentally-oriented decisions. To the extent that those casebooks consider business law, discussion is limited to explicit provisions like the disclosure obligations imposed by securities regulation.
Light argues that, when viewed and applied holistically, corporate and business law can fill gaps that traditional environmental law has been ill-equipped to address thus far. For example, climate change is a cumulative problem produced from the aggregation of thousands or even millions of small actions. It isn’t responsive to the “end of the smokestack” framing that has traditionally driven environmental law priorities. But Light suggests that corporate and business law could induce incremental changes. She identifies a series of practical corporate and business law moves that could immediately influence firm environmental behaviour. For example:
- Constructing the business judgment rule in corporate law as Margaret Blair and Lynn Stout proposed—as providing a zone of discretion for managers, within which they may consider a broader range of factors in thinking about the corporation’s best interests—rather than in the zero-sum shareholder primary formulation proposed by Milton Friedman among others. Going further, under corporate law, firm managers could be affirmatively required to consider environmental values and goals alongside profits, which would alter their calculus in deciding whether to reduce their environmental footprints or adopt private environmental governance;
- Tweaking the materiality standard in securities regulation, under which firms are required to disclose material environmental risks, so that it encompasses more than the narrow, purely financial definition of materiality;
- Identifying and learning from those situations in which antitrust enforcement helped to prevent industry collusion to delay implementation of higher environmental standards, while also ensuring that antitrust law does not prohibit, e.g., cooperative private environmental standards or certification regimes, which have sanctions for non-compliance attached (as most meaningful standards do);
- Tweaking bankruptcy law provisions to make clear that discharge provisions can’t operate, where they would produce a violation of a law designed to protect public health or safety from identified hazards.
Looking at any of corporate law, antitrust law, bankruptcy law or securities regulation in isolation may also miss the ways in which they operate in harmony or conflict with environmental law, and indeed with each other. Light argues for a unified approach, and a comprehensive analytical framework for understanding how these disparate fields act and interact. She proposes that corporate and business law can become stronger mechanisms for positive environmental change if we develop a normative environmental priority principle— something that can be advanced incrementally at multiple registers through litigation, regulation, and other forms of both public and private action.
I would add that financial institutions, as essential providers of funding across industries, are key actors at every stage of a firm’s life. They are linked to firms not only through contract and the market but through corporate, antitrust, securities, and bankruptcy law. Light’s insights, and her concrete proposals, could be useful in the emerging field of Climate Finance as well in thinking about how to leverage financial institutions’ influence to help generate a faster and smoother transition to a low carbon economy.
Corporate and business law mechanisms are not a silver bullet for addressing climate change and environmental risk. At the same time, synthesis across its conceptual silos yields new imaginative possibilities. Incremental change is still change, and it can move the needle considerably. The climate in particular is too urgent a problem to ignore while we wait for positive action at the level of high politics. Learning to see business law as environmental law is the kind of reframing exercise that generates new practical strategies, which can be tackled by multiple actors in varied positions virtually right away.
Stavros Gadinis and Amelia Miazad, The Hidden Power of Compliance
(Feb. 14, 2018), available at SSRN
In business and government, today, bureaucrat is a pejorative. Bureaucracy rather than being a mark of rationality is sneered at. Multi-disciplinary project teams, flat hierarchies and “intrapreneurship” are what corporate consultants prescribe. At least since Thatcher and Reagan, market mechanisms have been praised as superior to the civil service.
Yet, corporate legal regulation can only think in bureaucratic forms. In Europe, the GDPR requires a new C-suite member, the Chief Data Officer. In the U.S., executive, legislative and judicial actions, well described in this article, have resulted in “the explosive growth of compliance departments.” (P. 7.) In legal regulation, authority is vested at the top and liability at the top is thought to ensure compliance. As scandals occur because those at the top failed to confront problems, the law envisions new staffs being created so that the top of the bureaucracy can issue orders resolving the problems. Previous work has been skeptical of whether the development of compliance departments will lead to actual compliance. Gadinis and Miazad report on various law review articles in which “the harshest critics view compliance as a box-checking exercise, too formalistic.” (P. 2.) Others complain that those in the department won’t be able to “supervise their superiors.” (P. 2.) In other words, they will be inferior bureaucrats. Without being explicit about it, often using agency-cost theory, these law review articles apply the critique of bureaucracy so prevalent in our culture to criticize the organizational technique of compliance departments.
Gadinis and Miazad cut through these critiques and argue that the principal function of compliance departments is to put red flags in front of the board. One might quibble with this approach by emphasizing the educational function of compliance departments, improving how lower-level employees exercise their powers. But, in consonance with corporate law’s emphasis on power at the top, Gadinis and Miazad propose that whoever leads the compliance department (sometimes a Chief Legal Officer, but increasingly a Chief Compliance Officer) be in the C-suite and have clear lines of authority to communicate to the board. The threat of liability, they assume, will incentivize chief compliance officers to report to the board.
Gadinis and Miazad’s insight is to describe the problem facing the law as deciding “where the board faces a substantial risk of liability” and where the “chief legal or compliance officer faces a substantial risk of liability.” (P. 40.) Reviewing both Delaware and Federal law, they show that the board has a high risk of liability when it culpably ignores the red flags and that the chief compliance officer has a high risk of liability when she knew of red flags and failed to communicate them to the board. But the situation is not always so clear cut.
The great pleasure of this article is that the authors create a 2×2 matrix of low and high risk of liability for boards, on one axis, and chief compliance officers, on the other. They label the four situations as ones in which non-compliance is “untraceable,” “traceable,” “interrupted,” and “incomplete.”
“Untraceable” non-compliance occurs when the problems escape the due attention of both the compliance officer and the board, which is how the authors interpret what happened at GM during the 12 years of non-recall of a fatally defective ignition switch, despite repeated individual cases that GM settled. According to the authors, in “untraceable” non-compliance, neither the board nor the head of the compliance department are liable.
“Traceable” non-compliance occurs when the compliance department has reported to the board and the board chooses to ignore the red flags. In the WaMu Mortgage Meltdown, the board was informed of the risks, but chose not to act, creating its liability, but not that of the compliance officer, even though the compliance department did not stop the underlying actions.
“Interrupted” non-compliance occurs where the compliance department is aware of the non-compliance but doesn’t report it to the board. The authors recount this happening at Yahoo, which in 2014 had what was then the largest data beach in history. The authors don’t explain why the General Counsel failed to involve the board, but by doing so he incurred liability.
“Incomplete” non-compliance occurs when the compliance department communicates some of the facts to the board, but in such a way that when the scandal erupts the board claims “that they were ‘blindsided.’” (P. 51.) The authors interpret the fake accounts saga at Wells Fargo in this manner. Muddled awareness by the board and obfuscating reports to them by the compliance department, according to the authors, potentially lead to liability for both. The authors don’t explain why the Wells Fargo compliance department acted as it did, but describes that it escaped liability, as did the board, although the board had to undergo some stress in proving its lack of scienter.
These distinctions are lucid. But it might be emphasized that in all categories, except “traceable” noncompliance, the board was protected. In all but “interrupted noncompliance,” the chief compliance officer was protected. In all these cases, lower level employees, in and out of compliance, were the normal fall guys. Many were fired and only rarely was the CEO terminated.
It also might be emphasized that except at WaMU, the “traceable” case, the compliance department did not signal red flags to the board. At GM, the red flags were not even signaled to the General Counsel, its chief compliance officer at that time. The General Counsel was kept ignorant because he delegated to his staff the settlement of all cases for $5 million or less. The legal department of GM empowered lower-level attorneys, and all the cases settled within their limits. Especially in flat organizations, information does not necessarily get to the top, but also in bureaucracies, no one wants to be the messenger of bad news. Failing to report to the board may be a result of the chief compliance officer making her subordinates aware of how she is to be protected or it may be that the chief compliance officer knows that the board expects her to fall on her sword.
The emphasis of this article is on designing organizational structures where people want to be messengers of bad news. In the one case where the board was apprised, WaMu, the board had “already run through nine chief compliance officers in just seven years.” (P. 45.) I doubt that this frequent firing makes for a desirable organizational strategy because it could frighten the chief compliance officer into failing to report the problems to the board. But there also can be incidental benefits. In my opinion, the tenth one felt no loyalty to the company or the board and that is why he put the board on the hot seat.
Organizational loyalty can make one a bad gatekeeper, but it more importantly may induce a chief compliance officer to choose to incur liability. Where once, the Chief Legal Officer was “the vice-president in charge of going to jail,” now that task may have shifted to the chief of compliance. As the authors point out, “going to jail” is hardly ever the problem. Losing golden parachutes and claw-backs of bonuses are the risks that chief compliance officers may feel is part of their job. When one chief compliance officer suffered liability, at Yahoo, the “interrupted” case, other Silicon Valley GC’s explained that he was “The Fall Guy.” (P. 48.) True, and he probably thought that was his job. General counsels and chief compliance officers may feel that non-compliance is their territory and it is their problem to deal with. As a General Counsel once told me, she knows that she stands at “the coalface” and it is her job to handle the problem, not the board’s.
The bureaucratic instinct is a territorial one: this is my job and my station. In response to “incomplete” non-compliance, where the full story was not told to the Wells Fargo board, the compliance department was increased by over 5,200 employees (P. 52.) Obfuscating reports may risk subjecting the chief compliance officer to liability for maintaining an inadequate system, but they also create the possibility that a larger department may result. Suggesting that there may be red flags out there, but not planting them at the board, may be in the interest of both the chief compliance officer and the board.
As the authors note, there “is wide variation in structure, powers, and resources available” to compliance departments (P. 53.) As they also note, these organizational differences may have profound consequences not only on the “new actors” (P. 52) but also on “the institutional makeup of compliance.” (P. 53.) The authors call for “empirical studies of successful compliance operations.” (P. 53.) The weakness of this article is the authors’ review of the extant empirical literature on this topic. Although the authors quote various law review articles, they do not mention work, such as that being done at their institution by Lauren Edelman on Human Resources Departments, or, for example, on Australian compliance departments by Christine Parker and Vibeke Lehmann Nielsen. For Gadinis and Miazad, organizational problems arising in connection with compliance departments are new ones. Although their perspective on compliance is new and exciting, I would suggest as a partial critique of the many pleasures of this article that we do have some knowledge of how corporate staffs function. Joining what we know about how corporate staffs operate to the unique approach of Gadinas and Miazad will only enhance the many pleasures of this article.
Shaanan Cohney, David A. Hoffman, Jeremy Sklaroff, & David A. Wishnick, Coin-Operated Capitalism
, Columbia L. Rev.
(forthcoming 2019), available at SSRN
So-called “initial coin offerings,” or ICOs, are the new IPOs. In the last two years, ICOs became one of the hottest new investment opportunities in the rapidly growing market for crypto-assets—and one of the hottest topics of discussion among policy-makers and capital markets experts. Just like everything else that belongs in the general category of “fintech,” ICOs are fascinating and mysterious to most of us, legal scholars. What exactly are these “tokens” or “coins” that are being sold to investors in lieu of the traditional shares and bonds? Are they investment contracts, products, or club membership cards? Are they money? Should they be regulated, and under what set of rules? These are just some of the questions the acronym “ICO” triggers in the lawyer’s restless mind.
In a new article, cleverly titled Coin-Operated Capitalism, a team of authors with varying expertise (including a computer scientist and a scholar of contract law) explain ICOs by using an example of Coca-Cola raising money for its network of vending machines by issuing tokens to be used for purchasing cans of coke from those machines. Unlike the imaginary Coca-Cola project, however, ICOs involve purely digital “tokens” and “machines” that reside on blockchains and are embodied in software codes. As the authors explain, the key forms of this software—known as “smart contracts”—are encoded “if-X-then-Y” rules that govern the functionality of specific tokens sold in individual ICOs. To many ICO (and, more generally, crypto-tech) enthusiasts, this fully automated functioning of the issuer-investor relationship is a great virtue: by eliminating the need to trust humans, smart contracts supposedly eliminate the possibility of fraud or other misbehavior by company managers and insiders enjoying significant informational advantages over outside investors. In this techno-utopian narrative, there should be no need for legally mandated disclosures, regulatory oversight, or court enforcement of investors’ rights: the software code would simply deliver the results intended by the contracting parties, in an impeccably efficient and transparent manner.
Coin-Operated Capitalism puts this techno-utopian narrative to test. The cross-disciplinary team of the article’s authors reviewed disclosure documents—or “white papers”— issued in 50 ICOs that raised the most amount of capital in 2017. In each case, they examined three key dimensions of the relationship between ICO promoters and investors: (1) the limits on the supply of the relevant tokens (which is important from the viewpoint of tokens’ value); (2) vesting requirements and other restrictions on the insiders’ ability to sell or otherwise monetize their tokens; and (3) the ability of the ICO promoters to change the terms of the contract after the tokens are sold to investors. In each case, the authors reviewed both what the relevant white paper disclosed to the investors, and what was actually programmed into the relevant code. Their inquiry focused on whether or not the software governing the relevant tokens was written in a way that would deliver on the white paper’s promises. Perhaps not surprisingly, the results of their empirical testing revealed that “ICO code and ICO disclosures often do not match.” To put it simply, what investors were told would happen in future might never materialize because the governing software was simply not written to produce the expected outcomes. Furthermore, the authors found no evidence that ICO markets effectively priced this absence of investor protections from the code.
The authors use these fascinating empirical findings to raise a number of important questions about ICO markets. They ask, among other things, whether the code is not quite as important as ICO enthusiasts portray it to be, and whether the ICO markets are fundamentally broken. I won’t attempt to spoil your fun, however, by previewing their conclusions. I am sure you will enjoy following the authors’ thoughtful arguments and pondering the questions they pose as much as I enjoyed doing so. I also hope this deliberately empirically grounded article will make you think about such “big” normative questions as the changing role of law in our increasingly decentralized, computerized, and automated world. This article does not purport to answer such “big” questions but it does help us get a bit closer to that goal.
Cite as: Saule T. Omarova, Understanding ICOs: In Code We (Shouldn’t) Trust?
(May 2, 2019) (reviewing Shaanan Cohney, David A. Hoffman, Jeremy Sklaroff, & David A. Wishnick, Coin-Operated Capitalism
, Columbia L. Rev.
(forthcoming 2019), available at SSRN), https://corp.jotwell.com/understanding-icos-in-code-we-shouldnt-trust/
Jennifer Hill, Legal Personhood and Liability for Flawed Corporate Cultures
, European Corporate Governance Institute Law Working Paper No. 413/2018 (2018), available at SSRN
In Legal Personhood and Liability for Flawed Corporate Cultures, Jennifer Hill provides a thought-provoking, comparative perspective on corporate accountability for misconduct arising from defective culture. Recent scandals involving Volkswagen, Wells Fargo, Uber, Fox News, CBS, and others make clear that culture can contribute to malfeasance that damages both company and societal bottom lines. Such scandals raise key corporate governance questions: (i) how should the law address widespread intra-firm wrongdoing as a matter of criminal and civil liability?; and (ii) should the law target the organization, the senior executives and directors, or the individuals (i.e., “bad apples”) who commit wrongful acts?
The paper compares US, UK, and Australian approaches to two types of liability: (i) entity criminal liability and (ii) individual director and officer liability for breach of duty. The analysis highlights jurisdictional differences and similarities that determine each regime’s ability to promote accountability for misconduct arising from flawed corporate cultures. It also examines the influence of the theoretical lens through which scholars view liability for flawed corporate cultures. Aggregation theories (e.g., nexus of contracts), viewing the corporation as a legal fiction composed of natural persons, create barriers to entity liability. (Pp. 9-14.) By contrast, entity-based theories, viewing the corporation as a separate legal person, can be used to secure legal rights for corporations on the one hand and impose duties on the other. This analysis finds that entity-based theories are better-suited to address accountability for flawed corporate cultures than aggregation theories of the corporation because they: (i) can overcome accountability problems where it is difficult to identify individual wrongdoers; (ii) address diffuse, opaque, and complex operations more effectively; (iii) minimize scapegoating of lower-level employees to protect senior management; and (iv) incentivize self-regulation to avoid liability.
Entity Criminal Liability for Wrongs Arising from a Flawed Corporate Culture
The paper asserts that despite their different historical development, the US, UK, and Australian approaches all allow for entity criminal liability. (Pp. 14-19.) However, it finds no coherent theory of criminal liability across jurisdictions, especially with respect to misconduct stemming from a flawed corporate culture.
Civil Liability of Directors and Officers for Wrongs Arising from a Flawed Corporate Culture
At first glance, the US and UK approaches to director liability for breach of duty appear different, but in practice, they both significantly limit it. In contrast, Australia has an active public enforcement regime: the Australian Securities and Investments Commission brings actions against directors for breach of duty with a degree of success. Australian courts and regulators increasingly view directors’ duties as public obligations with important social functions, and this raises director liability risks for overseeing flawed corporate cultures.
Process versus Culture
The paper highlights a number of common scenarios involving cultural breakdowns; for example, (i) low-level employees commit wrongful acts in response to encouragement and firm-wide directives from senior management (P. 9); and (ii) high-level employees engage in malfeasance that results, not from perverse incentives, but inadequate policing of the company’s culture. The Wells Fargo fictitious accounts scandal reflects the first scenario, and recent sexual harassment scandals at CBS and Fox News, where harassment by senior employees deemed too important to the organization was tolerated, reflect the latter. Although within the US corporate-law context (i.e., Caremark and Stone v. Ritter), directors and officers are unlikely to face liability for breaching their oversight duties due to flawed corporate cultures, they ostensibly set a cultural and ethical tone for the entire organization. Flawed corporate cultures may impede effective management of legal compliance, risk, and corporate malfeasance. The failure to account for flawed corporate cultures, irrespective of legal liability, risks damage to company and societal bottom lines.
The legitimacy of US-based corporate law is often judged from a procedural perspective, with procedures serving as a heuristic for quality governance, but procedures do not necessarily capture important cultural and behavioral dynamics. For example, a common feature of most corporate compliance programs is an employee code of conduct that serves as a written reflection of a preferred culture and behaviors. When unwritten rules, practices, and patterns undermine it, directors and officers are unlikely to be held liable as long as they did not have knowledge of wrongdoing, and officially sanctioned written procedures were followed.
Culture is an anthropological concept. The paper acknowledges that the corporate governance literature views it as “slippery” and cloudy, with no consensus on its meaning. In practice, ascertaining where a culture begins and ends and how to measure it may be difficult. Arguably, organizations do not constitute a single culture. For example, they may have a dominant culture reinforcing integrity as well as various subcultures promoting abhorrent behavior. The latter prove most problematic and challenging for legal compliance and risk management.
Despite these challenges, some scholars and regulators have arrived at roughly similar definitions relating culture to a set of “non-legal norms,” “conventions,” and “expectations” shared by institutional actors. (Pp. 2-6.) Even if culture is not specifically defined, and flawed cultures are unlikely to engender legal liability for directors and officers, court decisions, statutory schemes, regulations, and standard-setting organizations all signal the unquestionable importance of corporate culture acting responsibly and corporate managers setting the tone.
In conclusion, this must-read paper alerts corporate governance scholars to the haunting presence of flawed corporate cultures and provides an informative comparative assessment of how different jurisdictions address the implications.
Cite as: Omari Simmons, Responsibility for Flawed Corporate Cultures
(April 5, 2019) (reviewing Jennifer Hill, Legal Personhood and Liability for Flawed Corporate Cultures
, European Corporate Governance Institute Law Working Paper No. 413/2018 (2018), available at SSRN), https://corp.jotwell.com/responsibility-for-flawed-corporate-cultures/
Ofer Eldar & Andrew Verstein, The Enduring Distinction between Business Entities and Security Interests
, 92 S. Cal. L. Rev.
__ (forthcoming 2019), available at SSRN
While business entities have existed for centuries, their essential nature and forms of utility remain contested matters today. Over recent years, the asset partitioning theory of business entities has become highly influential, yet even for those inclined to accept it, fundamental questions remain unresolved. As Ofer Eldar and Andrew Verstein observe in the paper cited above, security interests likewise function to partition assets for the benefit of particular creditors, yet we lack a nuanced account of when one approach might be preferable to the other. In their paper, Eldar and Verstein develop a compelling foundation for such an account, analyzing these differing modes of asset partitioning and providing a fresh perspective on legal and market dynamics prompting financial innovations that, at least at first glance, appear to “blur the distinction between security interests and entities.”
Eldar and Verstein argue that, while business entities and security interests alike possess capacity to order creditors’ claims in a manner unachievable through contracts, a critical distinction remains. Whereas business entities create a “floating” priority scheme in the sense that an entity “can always update it to undermine the priority of existing creditors by pledging the assets to additional creditors,” security interests create a “fixed” priority scheme favoring “the first perfected secured interest over other claims in the assets.” This, they conclude, is why both forms of asset partitioning persist. “Security interests and entities coexist in the world and in particular structures because they offer different and irreplaceable priority schemes for creditors.”
So when might one be preferable to the other? Eldar and Verstein style the choice as a trade-off between “evaluation costs” and “managerial discretion.” The floating priority associated with business entities will generally appear preferable where one anticipates requiring “flexibility to respond to changing circumstances”—notably, capacity to continue borrowing in the future. The fixed priority associated with security interests, on the other hand, will correlatively appear preferable “when the value of managerial discretion is limited,” and “when debt liquidity is critical”—home mortgages being a straightforward example, reducing evaluation costs and facilitating a secondary market by fixing creditors’ priority.
After examining and rejecting various other potential distinctions, Eldar and Verstein deploy their floating-versus-fixed framework as a means of understanding “three areas of financial innovation” where this distinction might appear to have substantially blurred. In securitization, captive insurance, and mutual funds alike, the predominant U.S. approach involves heavy reliance on “numerous entities,” even though the asset pools are generally constructed “to ensure low evaluation costs and low managerial discretion.” Eldar and Verstein argue that, “in all these financial products, the key structural element is actually a security interest or other law that essentially fixes the priority of the creditors,” and that entities have become critical solely because, in the United States, “security interests are not bankruptcy remote.” In these fields, the proliferation of entities reflects the benefit of insulating the pooled assets they contain from the bankruptcy of a distinct management company, not the need for managerial discretion that would ordinarily render distinct entities attractive.
This insight prompts fascinating comparative points and leads Eldar and Verstein to raise important normative questions that one hopes they will continue to explore in future work. Observing, for example, that a bankruptcy-remote form of security interest under English law has facilitated a form of securitization “without meaningful use of an entity,” they reason that similar availability of a bankruptcy-remote security interest would render distinct entities largely superfluous in U.S. securitization, captive insurance, and mutual fund structures alike, eliminating substantial associated transaction costs. In this light, they further argue that the emergence of “protected cell companies” and the like—permitting more granular partitioning of assets within a single entity—reflects demand for more efficient U.S. structures combining fixed priority with bankruptcy remoteness.
“The law would be improved,” they conclude, “if it respected the bankruptcy remoteness of security interests in such contexts without requiring the interposition of an entity”—at least “where entity-based bankruptcy remoteness is already feasible.” In the meantime, Eldar and Verstein’s analysis sheds new light on a range of complex structures and highlights dynamics that will likely continue to drive financial innovation.
Cite as: Christopher M. Bruner, Asset Partitioning and Financial Innovation
(March 6, 2019) (reviewing Ofer Eldar & Andrew Verstein, The Enduring Distinction between Business Entities and Security Interests
, 92 S. Cal. L. Rev.
__ (forthcoming 2019), available at SSRN), https://corp.jotwell.com/asset-partitioning-and-financial-innovation/