Corporate governance - Vigil

As a host of threats continue to mount against organizations, more boards are weighing a broader, more proactive approach to crisis management.

Congress expanded the SEC’s ability to pursue enforcement actions in administrative proceedings in the Dodd Frank Act, bringing the agency’s use of proceedings before its own administrative law judges (ALJs) into the spotlight.

On March 14, 2016, the SEC issued a no-action letter [1] permitting holders of shares of common stock of a publicly traded REIT, or REIT shares, received in exchange for privately placed units of the REIT’s operating partnership, or OP units, to tack the holding period of the OP units to the REIT shares for purposes of Rule 144. This new position is a very significant change from the way Rule 144 has been interpreted historically by the SEC, and may lead to the elimination of registration rights in many OP unit transactions as well as to changes in the way OP unit transactions are structured.

With the return of acquirer stock as a featured form of consideration in many recent deals, dealmakers are once again focusing on “social” issues in striking a merger agreement. As compared to most straight cash takeovers where price garners the overwhelming share of, if not exclusive, attention, an acquisition featuring stock consideration, and especially a so-called merger-of-equals, often involves significant discussion between the parties of softer issues, including governance, board composition, management, people, and corporate identity (e.g., corporate and brand names, headquarters and facility locations, and charitable and community commitments). A number of deal developments over the last few years highlight some of the risks and considerations unique to these social terms.

The Governor of the Bank of Canada, Stephen S. Poloz, and Senior Deputy Governor Carolyn Wilkins today announced the members of an independent Advisory Council, who will develop a short list of iconic Canadian women who could be featured on the first bank note of the next series.

Howard Wetston, who stepped down from the OSC in November, says the part-time role appeals to him because he wants to tackle new things

Just six months ago, when the Supreme Court’s current term opened in October, things looked bleak for the class action.  Three major cases were on the Court’s docket, and each seemed handpicked as a vehicle for the Court’s conservatives to curb the availability of the class action.

On Capitol Hill last week, the Assistant Attorney General for the Antitrust Division of the Department of Justice, William J. Baer, confirmed that the DOJ is investigating potential antitrust issues arising from investors’ “cross-ownership,” or minority shareholdings, in firms that compete against each other in concentrated industries. Baer’s statement follows two recent academic papers suggesting that institutional investors’ minority interests in major U.S. airlines may reduce competition among the carriers. Baer told a Senate subcommittee that the DOJ is investigating cross-ownership “in more than one industry,” and press reports indicate that the airlines industry is one of these. [1] Notably, Baer acknowledged that it was unclear whether cross-ownership alone would violate the existing antitrust laws, absent evidence of collusion. [2]

Have we really reached the point where an executive can put his mortgage interest payments on the company’s tab?

Controlled companies underperformed in terms of total shareholder returns, revenue growth, & return on equity, finds study by IRRCi and ISS

Distressed firms with publicly-issued bonds often seek to restructure the bonds’ payment terms to better reflect the weakened firm’s repayment capabilities. The Depression-era Trust Indenture Act, however, bars the bondholders from voting on whether or not to accept new payment terms, requiring individualized consent to the new payment terms.

There are completely legitimate reasons to use an offshore holding company, but recent events reveal how people may be using them to disguise ownership of assets

In our recently released textbook Mergers and Acquisitions: Law, Theory, and Practice we aim to change the way that transactional law is taught in U.S. law schools by immersing students in a deal environment.