Sarah Baumgartel, Privileging Professional Insider
Trading, Ga. L. Rev.
(forthcoming 2016), available at SSRN
Just when you thought it was safe to avoid yet another article on insider trading comes Sarah Baumgartel’s imaginative and insightful paper. Baumgartel’s point of entry is several recent and pending cases that in some ways extend, and in other ways limit, the peculiar misappropriation theory, a judicial development that continues to prove not only that bad cases make bad law but that they also can make for good scholarship.
Before I get into a few of the details, here’s the bottom line: The misappropriation theory, and especially the Commission’s redaction of “confidential relationship” in Rule 10b5-2, are yet another example of facilitating the economic inequality that has achieved such prominence in contemporary discourse. Baumgartel doesn’t quite put it this way, but she does argue that the manner in which the misappropriation theory has come to impose liability on traders who received their information in the context of personal and often intimate relationships while providing exculpation for professionals and managers who trade on that information satisfies neither the information-protective function of modern insider trading law nor the market fairness rationale that often is invoked. Instead, it sends your golf buddy or your sister to jail while allowing business professionals to reap harvests from fields that ordinary people can’t even locate.
Baumgartel briefly suggests that insider trading law is the result of powerful interests protecting their rents, and this certainly is plausible. She also sees the expansion of insider trading law from professional relationships to personal relationships as a “jurisdictional hook” on which to hang liability for nothing more than personal ethical misconduct, a trend that she situates in other areas of the law.
She also asks that we bid goodbye to the market fairness rationale for insider trading prohibitions. How can it be fair to let professionals benefit from insider trading while precluding market participants whose only hope of getting access to that type of information is the mere dumb luck of personal relationships? She even suggests that fairness, as developed in this context, is an irrational concept. Questioning what fairness means in this context, she reduces it to “nothing more than getting information the owner did not authorize you to have.” Even a cursory reading of the quoted material shows that the word “fairness” has no serious meaning here.
Ultimately, insider trading law is about securing one’s right to protect and use one’s confidential information as one sees fit. Fairness has nothing to do with it, nor does any other market regulatory purpose. It really is a branch of property law (along with the personal ethical regulation mentioned above).
All of this is woven through a doctrinal examination of case law and regulation and, to this reader, provides an example of what really good doctrinal work looks like. Baumgartel amasses the evidence, analyzes it closely, and then steps back and asks: Why does all this matter? While legal change, even if incremental, could result from such work, Baumgartel helps us to see the big picture of what actually is transpiring beneath the details. By doing so, she fits her subject nicely into contemporary social narratives and political debates and unveils rather prosaic material as part of a much bigger (and troubling) trend.
There are a lot of ideas here. Baumgartel has much to say but not much room in which to say it. I get the sense that there are at least several papers waiting to be generated from this one. And I look forward to seeing them all. This is an excellent paper in its own right, but it also reveals the potential its author has for important future work.
In the words of one younger and wiser colleague, “prescriptions are empty calories for law review editors.” Many fabulous articles uncover new histories, new facts, new frames … only to fizzle around the obligatory Part V, with its half-hearted defense of a model law or regulatory gimmick, that orphan child born of perfunctory comments in faculty workshops.
The latest article by Heidi Mandanis Schooner, based on her endowed lecture at Washburn Law School, is a rare counterexample—a stunningly simple reform idea that would literally upend the paradigm of bank capital adequacy, dispensing with some of today’s most urgent and intractable financial regulatory debates. The Washburn Law Journal symposium issue (which includes insightful commentary on Schooner’s lecture) and her spinoff testimony before the Senate Banking Committee are rich food for legal, economic, and policy thought—but are not very well-packaged, and could easily get lost in the buzz and dazzle of the fast-growing scholarly field.
Here are the problem and the fix, in a nutshell.
Under the existing regime, banks and a growing set of other financial firms must keep a minimum cushion of regulatory capital (roughly meaning equity and certain junior liabilities) to absorb losses in the event their assets decline in value. If its cushion is too small, a firm might fail, depositors and other senior creditors might lose money, and other firms and markets might succumb to contagion. To prevent or contain a financial crisis, the state might step in with a bailout.
The proper size of the capital cushion is the subject of a huge, nasty, and mostly unresolved academic and policy debate, which Schooner recounts briefly in her piece. The “consensus” range is somewhere between 4 percent and 40 percent, reflecting different methodologies and normative perspectives. In practice, the floor has been set by international agreement: since the late 1980s, the successive Basel Accords have articulated global norms for bank capital adequacy, and ever more convoluted ways of measuring it. Basel I, II, and III reflect technocratic and political accommodation among regulators who oversee the world’s largest financial institutions and markets.
Crucially, the burden of going above the floor is on the state. U.S. officials have successfully used administrative discretion for decades to raise the effective capital requirements for most banks above the absolute minima—but failures and crises came anyway, leading many to argue that capital cushions were still too small.
In a delightfully legal move, Schooner would simply flip the burden. Instead of starting with, say, 8 percent and working up to, say, 15 percent, using a host of complex formulas and byzantine administrative procedures—regulations might start at 20 percent and give regulated firms a chance to argue it down to 15 percent. As she puts it towards the end of her Senate testimony, “[c]onceptually, capital regulation would be set … as ‘prudent’ capital as opposed to ‘minimum’ capital.”
This is ingenious because it flips two arguments at once—the argument over math, and the argument about its normative underpinnings. When the standard is “minimum,” the market failure paradigm dominates. In contrast, “prudent” could be defined in terms of banks’ public functions and the risk preferences of the taxpaying public.
Schooner’s prescription is broadly in line with the precautionary trend in financial regulatory scholarship – a rich crop of proposals to limit and license financial products and activities, reflecting a healthy skepticism about financial innovation and post-crisis risk aversion on the part of the public. Hers stands out for its radical simplicity. It would require no new administrative apparatus, and, if anything, might do away with some of the complexity that has come to define financial regulation.
As Erik Gerding notes in his comment, the upside-down capital idea follows another regulatory precept—captured in Andrew Haldane’s metaphor of the dog and the Frisbee—to fight complexity with simplicity. Top economists have shown that identifying the right minimum level of capital against financial crises is incredibly hard, perhaps even harder than finding a formula for consistently catching a Frisbee. Dogs learn to catch Frisbees without formulas. Flipping capital regulation on its head might dispense with a few formulas as well.
As Gerding and Brett McDonnell rightly note in the symposium, Schooner’s inspired concept does not escape the essential criticisms directed at all bank capital regulation – namely, that regulating some firms more stringently, or more effectively, could drive finance beyond the regulatory perimeter, and spawn new regulatory arbitrage strategies. McDonnell also notes that there are risks to firms and to society from setting capital thresholds too high. Both critiques are fair, but they are not particular to Schooner’s argument. If you are going to regulate bank capital at all, it is hard to see why you wouldn’t do it upside down.
My own frustration with the article is that the absolutely brilliant core contribution is buried way too deeply for most readers to reach, and takes up much less of the text than it should. I am also uneasy about Schooner’s term for the proposal, “Top-Down Capital Regulation,” which to me connotes a clunky dirigisme, potentially overshadowing the subtle elegance of her idea.
In the grand scheme of things, these are quibbles, perhaps pointing to an opportunity for the author to expand on her insight in another article or two.
Prominent economic theories rooted in the seminal work of Ronald Coase have long suggested that firms in a marketplace exist and work to reduce transaction costs, but the explanatory powers of these theories fail to reflect some of the realities of the modern marketplace. In many instances, particularly in the financial industry, it appears that firms exist and work to increase, rather than decrease, transaction costs. In her recent article, Intermediary Influence, Professor Kathryn Judge examines this peculiar phenomenon and offers a persuasive claim that helps to explain this persistent and consequential marketplace curiosity in finance.
The central claim of Professor Judge’s article is aptly summed in the title of the piece: intermediary influence. If one wonders why certain financial arrangements are the way they are, the article suggests the answers likely lies in fees and the firms that collect them. Specifically, the article argues that:
[T]hrough repeatedly helping parties to overcome barriers to transacting, intermediaries develop informational and positional advantages relative to the parties that they serve. These advantages are critical to intermediaries’ capacity to provide value, but they also put intermediaries in a superior position to influence the evolution of institutional forms. In addition, intermediaries of a particular type will often be fewer in number and better organized than the parties that they serve. This makes intermediaries relatively better positioned to shape laws and regulations and to otherwise act to promote institutional arrangements that serve their collective interests. For these reasons, intermediaries often succeed in their efforts to promote and entrench high-fee arrangements.
To bolster her claim that certain intermediaries work to add needless transaction costs to the marketplace, Professor Judge offers evidence with case studies of financial intermediaries such as exchanges, stockbrokers, mutual funds, and credit default swap dealers. In each instance, the entrenched intermediary took action that solidified or moved the marketplace toward a high-fee position even when lower cost alternatives seemed viable. Professor Judge suggests that partially as a result of such intermediary influence, the financial industry is less efficient, more intermediated, more complex, and more fragile.
The explanatory strengths of the article are persuasive and powerful. They provide guidance for the current paths of finance, and raise questions about the road ahead. How does one pragmatically and politically go about rechanneling intermediary influence towards greater efficiency and economic welfare mindful of strong incumbent self-interest to oppose such changes? Why have the forces of new technology and greater competition been much more disruptive to entrenched intermediaries in other industries relative to those in finance? What factors make certain intermediary influence more powerful than others? Are there non-economic beneficial purposes to high fees, such as gatekeeping, that we should maintain over time? Are intermediary influence and high fees existential facets of modern finance given its complex and intermediated nature? The answers to these and other lines of inquiries find both fertile ground and green shoots in Professor Judge’s article when one thinks about the large questions looming over the future of financial markets and financial regulation.
Because financial markets are truly markets of intermediaries, financial regulation is truly regulation of intermediaries. And because intermediaries influence, they must be influenced. Thanks to the work of Professor Judge, policymakers and researchers thinking about how best to regulate the financial industry must think harder about how best to repurpose and refashion the influence of financial intermediaries towards more productive and efficient ends.
Veronica Root, Modern-Day Monitorships
, 33 Yale J. on Reg.
109 (forthcoming 2016), available at SSRN
The study of organizational compliance is now proliferating in American law schools. Over the past decade, new courses, new programs, and new scholarship have focused increasing attention on this area. In recognition of the importance of organizational compliance as a free-standing field of inquiry, the American Law Institute has launched the drafting of Principles of the Law, Compliance, Enforcement, and Risk Management for Corporations, Nonprofits, and Other Organizations. This project – and the work it inspires – should advance our understanding of a framework for thinking about organizational compliance. Veronica Root’s work on monitorships, including her most recent piece on Modern-Day Monitorships, is a meaningful contribution to one piece of that framework.
Much of the existing work on organizational compliance focuses on “gatekeepers,” which reassure the public that a corporation is complying with its obligations. Professor Root has focused her scholarship on the enforcement side, helping us to understand the special role of “monitors,” which enter the scene after a compliance failure is manifest. The role of monitors is to investigate wrongdoing and make recommendations for future compliance. In her most recent article, Root describes “modern-day monitorships” and argues for a more nuanced understanding of these important enforcement institutions.
Professor Root traces the origins of modern-day monitorships to the familiar court-appointed monitors, which go by various names, including “master,” “special master,” “receiver,” or “trustee.” These monitors have been used for many years to assist courts along a range of responsibilities in resolving complex litigation, from fact-finding to the creation and implementation of remedies.
Professor Root contends that the traditional court-ordered monitorships served as the model for a new form of monitorship, deployed by governments or administrative agencies in a context of increased regulatory oversight. The challenge for a government faced with an organizational wrongdoer is to get the organization back on the right path, possibly over a period of many years. According to Professor Root, “In regulatory grey areas, it is often difficult to predetermine a set of mandates that an organizational wrongdoer should follow going forward.” (P. 123.) Thus, the role of monitors changed from “performing rote compliance enforcement” in the wake of a finding of wrongdoing to “assisting in the development of a remediation program.” (Id.) Meet the modern-day monitorship, used by courts, government agencies, and (increasingly) private organizations.
While modern-day monitorships can be employed in diverse circumstances, Professor Root describes four core attributes: modern-day monitors are “(i) independent, private outsiders, (ii) employed after an institution is found to have engaged in wrongdoing, (iii) who effectuate remediation of the institution’s misconduct, and (iv) provide information to outside actors about the status of the institution’s remediation efforts.” (Id.)
The most common modern-day monitorships are for purposes of regulatory enforcement, as described above, but modern-day monitorships often perform functions beyond the development of a remediation program. The modern-day monitor, like a gatekeeper, may lend reputational capital to the wrongdoer, but in this context to facilitate rehabilitation. Or, when acting under a court order, some modern-day monitors may exercise a great deal of discretion in defining and remediating past harms. Professor Root also suggests a public relations benefit (beyond the use of reputational capital) from modern-day monitorships, when the wrongdoer voluntarily hires a monitor and charges the monitor with providing a public accounting of the investigation, along with suggestions for remediation measures.
Among the many legal issues that arise from the widespread use of monitors is that “modern-day monitorships … lack a technical source of legal authority governing their use.” (P. 142.) (Note that the ALI project is not a “Restatement of the Law,” which would be primarily addressed to courts to clarify established law, but rather a “Principles of the Law,” which is to be primarily addressed to legislatures, administrative agencies, private actors, or courts where there is little established law.) Some commentators have proposed more robust legal framing of monitors, but Professor Root argues that differences in context make the development of overarching principles challenging. More specifically, she discusses the lack of desirability of one-size-fits-all rules for court involvement, transparency, confidentiality, and monitor duties. The bottom line is that “differences amongst monitorships matter when considering common issues of monitorship reform.” (P. 152.)
Professor Root’s examination of monitorships is careful and detailed, and she includes in the final section of her paper several additional considerations that “lawmakers, scholars, and the public should contemplate” as they think about monitorship regulation. (P. 153.) This piece and her previous work on the monitor-“client” relationship are worthy of close reading by anyone who is interested in advancing his or her thinking about this emerging field.
Supply chains. Not too long ago, I found myself nodding wisely along when someone was talking about them. The truth is that my nodding signaled only that I recognized their significance as components of the modern global economy, and as objects of legal study. In no way did my nodding signal that I actually knew much about them.
These are the things I do know about supply chains: they are important; they are complex and present complex challenges; their trans-border nature makes them hard to regulate; and bad things regularly happen in developing countries, at the ends of supply chains that provide goods many of us have come to rely on. Things I don’t know about supply chains: above all, I don’t know in precise terms just how inadequate existing legal regimes – domestic, transnational, public, or private – are in dealing with supply chain problems; where the shortcomings are and the precise consequences of those shortcomings; and whether I should be hopeful or despondent about the prospect of addressing them.
Happily, Galit Sarfaty has shone new light into one aspect of supply chain regulation, through something I do know a bit about: disclosure-based securities regulation. In the process, she has illuminated the potential of domestic law in addressing the use of conflict minerals within corporate supply chains, and the significant limits of corporate conduct on the matter to date.
In Shining Light on Global Supply Chains, Sarfaty considers the mandatory disclosure requirements under Dodd-Frank Section 1502, which requires companies that are publicly traded in the US, including their foreign subsidiaries, and which manufacture or contract to manufacture certain conflict minerals, to disclose whether their minerals originate from the Democratic Republic of Congo (DRC) or its neighboring countries. When they do, the company must exercise due diligence on the source and chain of custody of their minerals, and file a Conflict Minerals Report. Sarfaty’s work quantitatively and qualitatively reviews the first round of such reports, 967 in total, filed in mid-2014, supplemented by ethnographic interviews and participant observation. As she points out, Section 1502 aims to use domestic disclosure rules to extend the extraterritorial reach of US domestic law far enough to provide some visibility into where the conflict minerals in our laptops and other electronics (along with gold and other minerals) actually come from, and the conditions under which they are obtained.
Sarfaty’s first, striking finding is that most companies show genuinely poor due diligence when it comes to understanding their supply chains, let alone mitigating risks or seeking to improve supplier practices vis-à-vis conflict minerals. 48% of companies demonstrate weak due diligence based on her careful criteria, and only 7.34% (that is, 8 of 967 reporting companies) can claim to be demonstrating strong due diligence.
As Sarfaty shows, good supply chain due diligence is hard to achieve. Supply chains can be long, and tend to be fluid. International norms on supply chains are still at an early stage of development, so there is a lack of guidance around, e.g., how much due diligence work can be outsourced to third parties, and even what counts as a “conflict” for purposes of the rule. As well, multiple different parties – industry groups, NGOs, consulting firms, and governmental bodies – are now involved in developing certification standards and sourcing initiatives. The initiatives can conflict, can be non-transparent, and in any event are generating in the context of a competition among certifiers for market share. Coordination is less the norm than competition, and ameliorating the desperate situation in the DRC is not the certifiers’ only priority. As well, of course, local security is very challenging and governance is very weak in the region, which inhibits mapping and traceability.
Then there are the factors that seem to correlate with higher compliance. Unsurprisingly, firm capacity and “social license” matter. Brand strength and company size (but not profitability, so much) are positively correlated with better compliance. Also strongly correlated is whether a company has been involved with particular international supply chain initiatives, like the Conflict Free Sourcing Initiative (CFSI). However, benefits taper off if a company is involved in more than one such initiative, presumably because at some point redundancy and even conflict between initiatives kick in. It also turns out that making things easier for companies – for example, by having independent third-party auditors certify smelters as conflict-free, as CFSI does – increases compliance. For regulation and governance nerds like me, Sarfaty’s article also enriches the conversation about the comparative benefits of harmonization versus decentralization (i.e., in the context of federalism, or improving legal standards by allowing multiple standards to operate simultaneously). It reminds us that there can be real costs associated with allowing multiple initiatives to develop alongside each other, at least in the context of urgent human rights abuses on the ground. One harmonized set of due diligence reporting requirements, which are fairly easy for companies to implement, potentially with the assistance of credible on-the-ground actors like the CFSI would apparently make conflict mineral supply chains easier to map and to manage. While over the long run, multiple competing standards may be more effective at generating optimal standards, optimality in this environment may be less important than actually making some progress, sooner.
Sarfaty’s work makes a welcome contribution to our understanding of how to improve supply chain due diligence. Hers is a positive early account of the application of domestic law to a thorny transnational problem, and Sarfaty’s thoughtful and thorough analysis helps identify the specific ways in which we may be able to envision a yet more robust and meaningful strategy for dealing with conflict minerals, human rights abuses, and corporate supply chains.
Adam Badawi, Influence Costs and the Scope of Board Authority
, 39 Iowa J. Corp. L.
675 (2014), available at SSRN
Over four score years ago, William O. Douglas told us that directors don’t direct. Since then, there have been multiple attempts to enable directors to direct the corporations they nominally manage, often by proposing or mandating changes in the composition of the board. Directors’ backgrounds, biases, opportunism and group behaviors have been diagnosed as both the cause and cure to the problem of director inaction.
Rather than examining directors, Adam Badawi shifts attention to those outside the board to explain why it is in the interest of the business that directors don’t direct. His focus is not on coalitions within the board, but on lobbying of the board by others in the corporation. So that these other interests don’t spend their time attempting to influence the board (and instead concentrate on activities more profitable to the business), it is essential that boards exercise little of the authority they possess. By delegating authority to management, boards constrain the investment management makes in lobbying the board.
As Badawi makes clear, restricting board activity may restrict the board’s abilities to reduce the agency costs occasioned by the separation of ownership and control. His focus is on the trade-offs. He considers, for example, the displacement of inside directors by outside ones. The gains in better monitoring of agency costs, Badawi argues, come with increases in lobbying costs, especially those imposed on the firm by the former directors. (P. 678.) As employees have non-diversifiable firm-specific capital investments, they will actively lobby the board. This lobbying may take various forms from massaging the information that the board receives to overt politicking. Because they have strong interests in the outcome, employees will impose influence costs on the firm when the board seeks to exercise its authority, “[t]o put it another way, the drag that lobbying can exert on a firm increases with every additional decision the board makes.” (P. 687.)
The trade-offs between influence costs and agency costs will be business and issue specific. Hence, Badawi argues, the deference of the business judgment rule to director exercise of their authority reflects fear of imposing influence costs on the firm. (P. 679.) As board oversight increases, agency costs might decrease, but the organizational drag of influence costs might increase. The appropriate trade-off, how board decision-making is structured, is contextual and difficult to make, perhaps especially by the board. Hence, the judicial hands-off policy is the proper default option. In an M.I.T. dissertation, Michael Powell has found a convex shape to the costs of lobbying. (P. 684.) Hence, a rule of law that required more board governance – such as a weakening of the business judgment rule – would “escalate very quickly” influence costs “in a way that is quite difficult for a court to observe.” (P. 708.)
Badawi’s account also explains why firms sometimes use outside law firms and independent consultants. Information that the board gets internally should be presumed to be influenced by the strong interests of firm employees. They may be knowledgeable, but they are interested. So, in an acquisition, a firm is likely to seek the independent but less knowledgeable opinion about whether the target is or is not a good fit for the firm. (P. 690) (even without Van Gorkom).
Badawi doesn’t claim that influence costs are the only reason why directors don’t direct (P. 692). But it is a breath of fresh air to find an article that neatly illuminates that question and that doesn’t impugn directors. One mark of a very good article article is the reaction, “of course.” And, that was my initial reaction to this article. I then thought that it is shocking that it hadn’t already been written. Badawi has his finger on something, and analyzes it beautifully. It should be much cited.
I hope this article also stimulates empirical work. If the CEO is Chairperson of the Board, what lobbying takes place? Does that influence the range of activities that the board undertakes? Do boards with CEO’s as Chairperson direct more than those without? When the General Counsel (as Board Secretary) sets the agenda, how is the legal department lobbied? There are, I believe, many more studies of intra-board politics than of firm-board politics. Badawi challenges us to undertake such research, and we should be grateful for that stimulus.
Theories of corporate law and governance that purport to explain the nature of the corporate entity, the legitimate objective of corporate decision-making, and/or the balance of corporate power have proliferated over recent decades, and the debates prompting them show no signs of abating. Some accounts place the shareholders’ interests at the core of the enterprise, while others present more embracing conceptions requiring (or at least permitting) regard for other “stakeholders” such as employees and creditors. Similarly, some accounts identify shareholders as the font of legitimate corporate power, while others present more board-centric conceptions. Adding to the complexity, various theories combine differing perspectives on the corporate objective and corporate power in differing ways, often rooting them in irreconcilable conceptions of what the corporate entity itself fundamentally is. As time passes, the arc of corporate theory would appear to bend toward fragmentation rather than closure.
In the article cited above, Martin Gelter and Geneviève Helleringer illuminate these issues from a fascinating doctrinal perspective, exploring what the persistence of so-called “constituency directors” – placed on the board by a particular individual or institution – reveals about the nature and defining objective of corporate decision-making. Gelter and Helleringer bring to the task not only deep engagement with the scholarly literature in these areas, but also considerable comparative and interdisciplinary sophistication. Drawing upon a broad range of examples from U.S., U.K., and Continental European corporate legal systems, they observe a “fundamental contradiction” manifesting itself in all of them – “the tension between the uniformity of directors’ duties and the heterogeneity of directors themselves.” Specifically, they identify an apparent “paradox” in permitting “directors’ nomination rules linked to specific constituencies” while at the same time imposing “heterogeneity-blind duties.” Building on their descriptive account of illustrative doctrinal structures, Gelter and Helleringer assess them against prevailing formulations of the corporate objective, social scientific insights, and the available empirical evidence, concluding with a normative case for reform. Their product is informative, insightful, and a pleasure to read.
Whether the director in question is a venture capital investor’s nominee, increasingly common in the United States; an employee representative appointed under a Continental European codetermination system; a minority shareholder representative; or even a government representative (with which even the United States has some recent experience under TARP), directors’ duties remain undifferentiated. “In spite of the heterogeneity of directors between and within countries,” Gelter and Helleringer find, “all major jurisdictions, of which we are aware, developed a strongly uniform duty of loyalty for all directors.” While such issues have historically loomed larger elsewhere, Gelter and Helleringer rightly observe that their salience in the United States has increased as defined contribution pensions and greater institutional dominance have produced a more active and heterogeneous investor base.
In such situations, the potential for cognitive dissonance blurring into outright conflict of interest is obvious and acute, and structures permitting constituency directors have remained workable only because of another (perhaps ironic) commonality that all such jurisdictions share, which is that “the purported objective of fiduciary duty – however formulated in theory – is not clearly defined at all.” Directors are instructed to pursue the best interests of “the company” or “the corporation,” whatever that means. Sometimes there is a simultaneous nod toward the interests of the shareholders, an instruction that effectively remains unenforceable due to structures substantially insulating board discretion (e.g. the business judgment rule). Accordingly, while clear self-dealing may be aggressively policed, more general and pervasive conflicts pertaining to business policy typically will not. For lack of any coherent substantive definition, the corporate objective effectively has been “procedurally” defined through board appointment rules – and in such cases the outcome will, as an empirical matter, often “look more like negotiation between different groups than deliberation for a common purpose.”
A particularly important question reflecting these dynamics, Gelter and Helleringer suggest, is whether constituency directors ought to be permitted to share nonpublic information with the entity appointing them. While directors “are typically subject to a duty of confidentiality that prohibits them from sharing nonpublic information from the company with their sponsor,” Gelter and Helleringer argue in their normative discussion that “permitting firms to opt out of confidentiality” may be desirable – at least where the board appointment structure effectively amounts to a negotiated resolution to long-term contracting problems among various stakeholders.
This intriguing line of normative argument could be refined and taken further, and perhaps will be in future work. Regardless, Gelter and Helleringer’s article is a rewarding read, offering a rigorous, nuanced, and insightful analysis of constituency directors and their implications for prevailing conceptions of the duty of loyalty and the corporate objective.
Mihailis Evangelos Diamantis, Corporate Criminal Minds
, 91 Notre Dame L. Rev.
___ (forthcoming 2016), available at SSRN
The Yates Memo emphasizes the need to fight corporate crime by imposing criminal liability on individual criminal perpetrators. But critiques of corporate deferred prosecution agreements and cascades of examples of corporate criminality involving crimes such as bribery, manipulation, tax evasion and sanctions-busting raise questions about criminal liability of corporations as well as the liability of individual wrongdoers. Whether sanctioning individuals or the corporations they work for would be more effective in achieving deterrence or vindicating society’s interest in ensuring legal compliance and sanctioning legal violations is an empirical question. But improving the rules about corporate criminality does not require abandoning efforts to sanction individual criminality.
The problem Mihailis Diamantis addresses in this article is not a new one: corporations may be subject to civil and criminal liability for their acts, but assigning criminal liability to a corporation depends on an “antiquated gimmick—respondeat superior,” which focuses on attribution of employees’ intent to the corporation, rather than on any real theory. Diamantis states that respondeat superior results in assigning criminal liability to corporations where the criminal acts resulted from the actions of a few rogue employees, and insulating the corporation from criminal liability inappropriately merely because no single employee has the requisite mens rea. He argues that whereas respondeat superior may have made sense as the basis for the attribution of mens rea in the context of small corporations it makes no sense in the context of large complex modern business enterprises. Corporate personhood may be a legal fiction, but it is one to which the law is committed, and therefore it is necessary to be able to identify the mental state of these fictional persons.
The solution Diamantis offers is a “new theory of corporate mens rea that could be plugged into the current framework of criminal liability” rather than a radical overhaul of the criminal law.
Diamantis concedes that he is not the first to acknowledge the deficiencies of respondeat superior or to suggest improvements (for example approaches that rely on ideas of an inner circle, or collective knowledge, or corporate ethos). Diamantis’ proposed solution involves “further anthropomorphizing corporations in the eyes of the law, and adjudicating their mental states just as courts do those of natural persons— inference to the best explanation from acts and surrounding circumstances.” The problem of working out what was in the mind of the corporation is not so different from the problem of identifying the mental state of a natural person. We should infer intent from action. The argument is elegant in its simplicity.
Diamantis says that his solution to the corporate mens rea problem “harmonizes with recent discoveries in cognitive science and social psychology about how people actually assess the blameworthiness of groups like corporations.” People behave as though corporations are real, rather than merely fictional, entities and are willing to attribute blame to them in much the same way that they attribute blame to individuals. Why, then, would the law behave differently?
Claire Hill and Richard Painter’s new book is the latest addition to their long line of work on the complex interaction between law, economics, culture, and individual behavior in the fast-moving world of investment banking. In this exceptionally well-written book, Hill & Painter target what they view as the fundamental problem with today’s Wall Street: the fact that bankers (a term that denotes mainly investment bankers and other securities industry professionals) are allowed to behave in socially harmful ways, without suffering meaningful personal consequences. Alas, the authors don’t need to try very hard to convince us why this topic is both timely and important. What seems to be a never-ending string of scandals involving large financial institutions rigging prices, misleading customers, and helping clients cheat tax authorities and creditors provides plenty of evidence to that effect. If, after all these ugly revelations, you still trust bankers’ assurances that they are “doing God’s work,” you haven’t been paying attention.
In the book, Hill & Painter explain why, in recent decades, Wall Street bankers so consistently failed the public whose money they purport to manage. While not necessarily breaking new ground in this well-trotted area, the book does a great job of telling a rather impressively comprehensive story of how, in the course of the last few decades, investment bankers gradually abandoned their professional ethos in favor of purely self-serving pursuit of personal profit that is at the core of today’s culture of “irresponsible banking.” Hill & Painter trace the transformative changes in the business model of modern investment banking in the context of the increasingly competitive, globalized, computerized, and impersonal marketplace. One of the central themes here is the loss of bankers’ unlimited personal liability as a result of mass conversions of investment banking firms from partnerships to publicly traded corporations. Hill & Painter masterfully depict how this seemingly innocuous change reshaped the structure and culture of Wall Street from the 1970s on. To this broad-brush picture, they add nuance by dissecting some of the psychological factors driving individual investment bankers to disregard society’s interests and gamble with other people’s money. I found that part of the book particularly enjoyable and insightful.
What makes the book an even more worthwhile read, however, is the authors’ proposed solution to the problem of irresponsible banking. Hill & Painter preface their proposal by stating that an effective solution to problematic behavior in the financial industry must target not only monetary incentives – the focus of many proposed reforms – but also the underlying industry values. Importantly, the authors are skeptical about the efficacy of law as the key engine of an industry-wide normative shift. To them, changes in banks’ business practices mandated by regulation alone are bound to miss the mark, largely because regulators are ill-equipped to stay ahead of the misbehaving bankers. So, if it’s not the law and its agents, then what or who could possibly transform Wall Street’s culture?
The book’s answer to this question is elegant in its simplicity. Hill & Painter propose that investment banks – the corporate entities whose coffers and reputations are directly at stake – impose contractual obligations on their highly paid bankers to bear personal liability for some portion of their banks’ losses from excessive risk-taking or violations of law. This system of “covenant banking” would, in effect, force individual bankers to internalize the costs of their socially irresponsible actions and, consequently, to adopt a more conservative ex ante attitude toward financial and legal risk. It is this last factor that the book’s authors find especially important. Indeed, that’s why they insist on not having bankers’ personal liability depend on individual fault. To illustrate the basic idea, Hill & Painter discuss how such personal liability agreements might work if a bank is insolvent, bailed out by the government, is assessed a fine or found liable for fraud, or enters into a settlement in lieu of such a fine or judgment. The discussion is thoughtful, engaging, and gives much food for thought to anyone interested in financial regulation.
Of course, as with any creative proposal, Hill & Painter’s concept of covenant banking is bound to raise many questions and objections, some of which the authors correctly anticipate and discuss in the last part of the book. In my view, the more fundamental potential criticism of their book is that their proposed solution seems too narrow, especially in relation to their broadly painted and multi-factored diagnosis of the ethical degradation of the investment banking industry. The story of this gradual loss of Wall Street’s professional ethos, so forcefully presented in the beginning of the book, is at least as much a structural story as it is an attitudinal one. Yet, the contractual personal liability solution has little to say about the broader structural trends in the financial industry. It is possible that expanding the scope of the proposed solutions would have diffused the focus of the book and diluted the force of its core argument. So, the bottom line is simple: this is a great book, and I hope you will read it with interest.
More importantly, I hope that Wall Street CEOs read this book – and soon!
Developments in corporate law center on two topics these days—shareholder voting and merger litigation. One of the more surprising of the many twists and turns in the latter area is the appearance of appraisal arbitrage. The arbitrage characterization applies because the petitioner under section 262 of the Delaware corporate code takes advantage of the section’s standing rule to buy the transferor’s stock after the record date for the vote on the merger, based on a financial analysis that signals a good chance to prove a valuation in excess of the merger price. A number of special-purpose hedge funds have cropped up as players—Merion Capital, now a frequent appraisal plaintiff, raised $1 billion for a fund dedicated to appraisal claims in 2013. The volume of petitions has spiked up.
Volume has increased substantially despite the fact that appraisal is supposed to be brutally unfriendly to plaintiffs, partly because class actions are prohibited and partly because the plaintiff bears the burden to prove every dollar of damages through a ground up valuation of the company. The surge casts a negative light on the permissive the standing rule, which, in contrast to the blocks erected in representative litigation, facilitates buy-ins. The surge in filings also bids reconsideration of the open-ended approach to valuation techniques followed in the Delaware courts. Finally, it calls into question the fed funds plus 5% interest rate applied to appraisal recoveries under section 262. It is alleged that at a time when interest rates have fallen to little more than zero, a petitioner with a substantial stake can turn a profit on a return of the merger price alone, given an assured 5% yield during the litigation period. Critics are pressuring Delaware to amend the statute to turn back the plaintiffs.
In Appraisal Arbitrage and the Future of Public Company M&A, Myers and Korsmo turn back the critics.
This is a model law review article. It succinctly lays out the framework, and then reports on what has been going on lately, reporting an empirical study of Delaware appraisal litigation over the past ten years. The authors produce a series of crisp, telling descriptive statistics. (There is also a regression but it does not really add anything.) They persuade the reader that the appraisal surge, while certainly dependent on the loose standing rule as a door-opener, is not a function of hold up tactics and does not depend on the 5% interest add-on. The petitioners are selective and target low-premium mergers. Appraisal rights thus are being deployed in accordance with their purpose. Indeed, the authors suggest that Delaware expand section 262 to make appraisal available whatever the form of merger consideration.
This is one of those rare cases where there arises a strong inference that an article influenced the development of the law. Everyone in Delaware with whom I have raised the appraisal arbitrage question makes reference to Myers and Korsmo. The Council of the Corporation Law Section of the Delaware Bar Association cited the article when it took the matter up earlier this year. Significantly, the Council left the standing door open and proposed only a tweak of the statute, suggesting (1) a de minimis dismissal opening for petitions including 1% or less of the shares outstanding or involving a merger consideration of $1 million or less, and (2) an interest cutoff option in the company keyed to a payment of all or part of the merger consideration. As it happened, the legislature left the Committee’s suggestions on the table.
Delaware’s adjustment for appraisal arbitrage instead shows up in the caselaw. Vice-Chancellor Sam Glasscock recently has been using the merger price to trump the petitioner’s showing, reasoning that a well-conducted sale process lends confidence in the dollar result. See, e.g., Huff Fund Investment Partnership v. CKx, Inc., 2013 WL 5878807 (Del. Ch.), affirmed 2015 WL 631586 (Del.). Process concerns have been known to spill over into appraisal cases before, but never to this extent. Even so, the process move makes sense in the present context. Myers and Korsmo pick up on it, mooting a section 262 safe harbor constructed on Revlon principles. This is an intriguing suggestion, but then safe harbors are not the style in Delaware corporate jurisprudence.
Cite as: Bill Bratton, Appraisal Arbitrage
(November 25, 2015) (reviewing Minor Myers & Charles R. Korsmo, Appraisal Arbitrage and the Future of Public Company M&A
, Wash. U. L. Rev.
(forthcoming 2015), available at