Corporate Law: Corporate Governance Law eJournal最新文献

{"title":"Enforcing the Bargain v. Materiality Requirement — The Future of Disclosure-Only Settlements Post-Trulia","authors":"Hao Jiang","doi":"10.58948/2331-3528.1970","DOIUrl":"https://doi.org/10.58948/2331-3528.1970","url":null,"abstract":"In in re Trulia, Delaware Court of Chancery broke away from its tradition of routinely approving disclosure-only settlements and required disclosures to be material in order to cure the conflict of interest between plaintiff counsel and plaintiff class. I argue that fairness of settlement is the only standard in approving class action settlements and fairness will not be achieved by requiring materiality. Shareholders are legally entitled to all material information, as board’s fiduciary duty dictates. Thus, material disclosures are enforcement of a legal duty that is no consideration for the release of shareholder claims. On the other hand, fairness could be achieved by enforcing the bargain if bargaining process was conducted fairly and in good faith. The agency problem and the conflict of interest between plaintiff counsel and plaintiff class can be resolved by judicial assessment on whether there was adequate representation based on the effort of the plaintiff counsel and the appropriate attorney fee award according to the well-established three-scale system in quantifying the appropriate attorney fees. In addition, overbroad releases can be rescinded under the contract doctrines of fraud and unconscionability if such settlements were fraudulently induced or the release is overbroad compared to the benefit that the disclosures conveyed.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125685373","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"On the Company's Bounded Sense of Social Obligation","authors":"L. Moncrieff","doi":"10.4324/9780203733486-4","DOIUrl":"https://doi.org/10.4324/9780203733486-4","url":null,"abstract":"The chapter that you are about to read routes through demise and expulsion, sweatshops and distressed ecologies, to say something about the harms, repressions, and tragedies that lurk in the recesses of corporate networks. It uncovers parts and existences that corporate costings repeatedly leave out, and that form into deposits and accumulations of neglect under the surfaces of law. A critical feature of these sub-surface deposits is that they are depleted in their ability to generate obligations, an effect traced to the company’s bounded and managerial mode of interaction with the world. The chapter problematises the length of time that some existences spend in this state of disregard; governance is struggling to look after existences at the far-flung reaches of corporate networks and assemblages. But time also marks out the chapter’s journey towards new methods for reaching under law’s sub-surfaces. These draw together critical thinking about law and governance with thinking about the ‘legacy’ of corporate organisations, human and non-human accumulations of scale that reach into ‘the geologic’.The chapter uses this notion of legacy and the geologic mode to give existential meaning and force back to forgotten existences, and to introduce a new formula for corporate obligation.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"745 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134198016","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"‘Baby, It's Cold Outside…’ – A Comparative and Economic Analysis of Freeze-Outs of Minority Shareholders","authors":"Tom Vos","doi":"10.2139/ssrn.2898461","DOIUrl":"https://doi.org/10.2139/ssrn.2898461","url":null,"abstract":"Because minority shareholders can be a nuisance for a company, a majority shareholder may want to freeze them out. In general, the approach in the United States towards freeze-outs is more flexible than in the European Union. Law and economics scholarship suggests that a flexible regime for freeze-outs may be beneficial for society, as it addresses a free rider problem and a holdout problem in the market for corporate control. However, these insights are rarely integrated into European legal scholarship. This article endeavours to determine what constitutes an efficient legal framework on freeze-outs through a comparative law and economics approach. First, the legal regime on freeze-outs in the United States is compared with the regime of the Takeover Directive in the European Union and with Dutch law. Then, these legal systems are evaluated on their efficiency. Finally, some suggestions of reform are made for the European Union.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129205042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Suspension of the Exercise of Voting Rights – A Step towards Deterrent and Consistent Sanctioning of EU Transparency Requirements?","authors":"K. Sørensen, Mette Neville","doi":"10.2139/SSRN.2958677","DOIUrl":"https://doi.org/10.2139/SSRN.2958677","url":null,"abstract":"With the adoption of Directive 2013/50/EU, the Member States have been required to introduce the sanction of suspending the exercise of the voting rights of shareholders who fail to notify their major shareholdings in accordance with the national rules that implement the Transparency Directive (Directive 2004/109/EC). Directive 2013/50/EU does not regulate in detail how such suspension should be implemented, nor its consequences, so it is hardly surprising that its implementation varies widely. This article shows where the major differences lie. Directive 2013/50/EU is intended to set a minimum standard, but it is concluded that the wide differences in its implementation may mean that the minimum standard set by the Directive with regard to the suspension of voting rights may be said to very low. This does not necessary mean that the harmonisation is a failure, as it is the total mix of sanctions required by the Directive that should set the minimum level. However, as the Commission considers the suspension of the exercise of voting rights to be a particularly important sanction, it may be presumed that it expected this sanction to be implemented with more teeth than appears to be the case.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130942962","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tailoring a Public Policy Exception to Trade Secret Protection","authors":"Peter S. Menell","doi":"10.2139/SSRN.2686565","DOIUrl":"https://doi.org/10.2139/SSRN.2686565","url":null,"abstract":"The growing importance of information resources as well as mounting threats to proprietary information in the digital age propelled federalization of trade secret protection onto the national legislative agenda during the past year. This salience provided a propitious opportunity to address a critical overlooked failing of trade secret protection: the lack of a clear public policy exception to foster reporting of illegal activity. The same routine non-disclosure agreements that are essential to safeguarding trade secrets can be and are used to chill those in the best position to reveal illegal activity. Drawing on classic law enforcement scholarship as well as established institutions for protecting proprietary information, this article proposes a sealed disclosure/trusted intermediary exception to trade secret protection. This approach safeguards trade secrets while promoting effective law enforcement. The article also recommends that non-disclosure agreements prominently include notice of the law reporting safe harbor to ensure that those with knowledge of illegal conduct are aware of this important public policy limitation on non-disclosure agreements and exercise due care with trade secrets in reporting illegal activity.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125987880","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Does the Buck Stop Here? Board Responsibility for FCPA Compliance","authors":"Amy Westbrook","doi":"10.2139/SSRN.2928971","DOIUrl":"https://doi.org/10.2139/SSRN.2928971","url":null,"abstract":"This article focuses on the corporation law aspect of “corporate compliance,” i.e., how the legal structure of the corporation should, but often does not, ensure compliance. It explains that a corporation’s board of directors, legally obligated to manage the business in the interests of the corporation and its shareholders, should run the firm in order to avoid costly violations of the U.S. Foreign Corrupt Practices Act (FCPA) or other laws. In addition, the article explains that because the fiduciary duties of directors are in principle enforceable by shareholders, the specter of shareholder suit against directors who violate their duties and allow the firm to operate illegally should result in corporate compliance with the FCPA, or at least should provide a remedy to shareholders if directors fail, and violations occur. \u0000This article shows, however, that the fiduciary duties of directors are at best weak reeds in practice. Although there are certainly many fine directors, fiduciary duties in fact legally require directors to do very little and it is nearly impossible for a shareholder to obtain a judicial remedy against a faithless director. This article argues that several decades of Delaware court decisions, combined with legislation enabling director exculpation in nearly every state, have resulted the evisceration of director fiduciary duties and remedies for their violation. \u0000This article then looks closely at the allegations of FCPA violations and a cover-up of the same in the mid-2000s by Wal-Mart Stores, Inc.’s Mexican subsidiary. This article looks at the ill-fated shareholder derivative suits claiming breach of fiduciary duties by the Wal-Mart board members that were filed in the wake of the FCPA allegations. This article concludes that a return to the basics of corporation law, with enforceable fiduciary duties imposed on board members, might improve compliance with the FCPA.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-12-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128784322","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Bridge Over Troubled Water: Corporate Law Reform for Life-Cycle Based Governance and Reporting","authors":"Beate Sjåfjell","doi":"10.2139/SSRN.2874270","DOIUrl":"https://doi.org/10.2139/SSRN.2874270","url":null,"abstract":"In spite of all the business initiatives using a sustainability language status quo remains very much unchanged: ‘business as usual’ continues, and is a very certain path towards a very uncertain future. The dire status as regards the convergence of environmental crises facing global society is encapsulated in the concept of ‘planetary boundaries’, first identified in the ground-breaking article by Rockstrom et al. in 2009, and updated and re-affirmed by Steffen et al. in 2015. Planetary boundaries define global sustainability criteria for critical environmental processes that regulate the stability of the life-support systems on Earth, defining nine parameters of the earth system to indicate a safe operating space for humanity. According to Steffen et al., human production and consumption is placing us in increasing or high risk in relation to at least four of the boundaries: climate change, biosphere integrity (genetic diversity, with uncertainty concerning the boundary for functional diversity), land system change, and biogeochemical cycles (phosphorus and nitrogen). The grand challenge of sustainability lies in securing the social foundation for humanity now and in the future, while staying within the planetary boundaries; in Kate Raworth’s words: achieving a safe and just operating space for humanity. Business contribution to meeting this grand challenge is vital. This paper concentrates on the contribution of the dominant legal form of business: the company. The paper first discusses why we are in this situation of corporate unsustainability: why has neither the mainstream corporate governance debate nor the more progressive CSR movement provided helpful answers? The answer lies in the perception of the nature of the company and of the role of regulation that informs these two alternative streams (Section 2), where the social norm of shareholder primacy dominates and where law, and notably company law, to a great extent has been ignored. This is also true of the business and human rights movement, although its innovative approach has the potential for contributing to breaking down barriers between social norms and law.The paper continues with discussing the role of the law, arguably the most powerful tool for society to implement the social norms that society on a high political level agree on: where and how has law failed in ensuring that companies create value in an environmentally, socially and economically sustainable way? That section concludes with an identification of the main barrier to sustainable business: the social norm of shareholder primacy that has taken over the discretionary space company law has given corporate decision makers, and the explanatory power of this recognition for the failure of the most favoured legislative tool for sustainability: reporting (Section 3). Legislative efforts at promoting sustainable business through reporting requirements risk continued failure because of the chasm between the perceived role a","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130331218","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Comparative Analysis of Corporate Governance Disclosure in Nigerian and South African Banks","authors":"Araniyar C. Isukul, J. Chizea","doi":"10.9734/AJEBA/2016/29335","DOIUrl":"https://doi.org/10.9734/AJEBA/2016/29335","url":null,"abstract":"This research examines corporate governance disclosure in Nigerian and South African Banks using the unweighted disclosure index technique. This research provides a cross sectional examination of corporate governance disclosure practices in the annual reports of 10 listed banks in Nigeria and South Africa for the year 2013. The results suggest that Nigerian and South African banks have a high level corporate governance disclosure. However, Nigeria and South African banks have low levels of voluntary corporate governance disclosure. Furthermore, in reporting of voluntary corporate governance disclosure, Nigerian banks appear to be collating information with no link to the overall business strategy of the organization while the South African banks have a more robust approach to voluntary corporate governance disclosure as they apply international guidelines such as the global reporting initiative in reporting voluntary corporate governance disclosure.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131176692","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Discontinuities in Earnings and Earnings Change Distributions after J-SOX Implementation: Empirical Evidence from Japan","authors":"M. Enomoto, Tomoyasu Yamaguchi","doi":"10.2139/ssrn.2622396","DOIUrl":"https://doi.org/10.2139/ssrn.2622396","url":null,"abstract":"Prior research finds that the Sarbanes-Oxley Act (US-SOX) of 2002 has affected earnings management in the United States. Cohen et al. (2008) indicate that accrual-based earnings management has declined since the passage of US-SOX, while real earnings management has increased. Further, Gilliam et al. (2015) show that the zero-earnings discontinuity has disappeared since its passage, indicating that earnings management to avoid losses has decreased as a result. In Japan, the Financial Instruments and Exchange Act of 2006, the so-called Japanese version of SOX (J-SOX), was implemented for fiscal years starting in April 2008. Similar to US-SOX, J-SOX aims to reinforce the corporate governance of financial reporting. This study investigates whether the discontinuity in the distributions of earnings and earnings changes disappeared after J-SOX implementation. In contrast to US-SOX, the results indicate that the discontinuity in the earnings distribution at zero did not disappear after J-SOX implementation. However, the discontinuity in the earnings change distribution at zero almost disappeared after J-SOX implementation, indicating that earnings management to avoid earnings decreases became less prevalent. In addition, the results indicate that the discontinuity in the distribution of earnings changes before J-SOX implementation was mainly caused by habitual beaters and that earnings management by habitual beaters to avoid earnings decreases was less prevalent after J-SOX implementation.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127156047","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Mutual Fund Investor","authors":"Alan R. Palmiter","doi":"10.2139/ssrn.2853506","DOIUrl":"https://doi.org/10.2139/ssrn.2853506","url":null,"abstract":"This chapter for an upcoming handbook on mutual funds (by Edward Elgar Publishing) offers an overview of the mutual fund market and the investors who inhabit it. On the supply side, mutual funds hold $16 trillion in financial assets and have become the largest component of our private retirement system. On the demand side, mutual fund ownership has become widespread, with 90 million fund-owning households composed mostly of middle-class, educated, and older investors.The portrait of mutual fund investors, painted by a large and consistent body of academic and government studies over the past few decades, is disturbing. Fund investors are mostly ignorant of fund characteristics, inattentive to risks (and opportunities) of different asset classes, and often insensitive to fund fees. Instead, fund investors tend to chase past returns and attempt to time the market. As a result, the average returns for fund investors (both in stock and bond funds) have significantly trailed benchmark market returns – according to some studies, by several percentage points.The role of financial intermediaries in the mutual fund market is also disconcerting. Often, financial advisers give fund investors conflicted advice, leading them to choose high-cost, under-performing funds on which the advisers garner commissions. Although some employers are shifting employees to low-cost, risk-appropriate balanced funds, many 401(k) plans remain less than optimal. Moreover, fund companies tout higher-cost actively managed funds, despite growing evidence that most, if not all, fund managers are unable to beat the market – particularly after fees.There are, however, glimmers of hope. Recently, many fund investors have moved to lower-cost index funds – reflecting a new sensitivity both to the importance of low costs and to the empty promise of active fund management. Target date funds have also established a beachhead in the 401(k) market. The recent clarion calls of the financial press reinforces these trends, as a growing drumbeat of stories emphasizes the importance of fund fees, the counter-productivity of trying to beat or time the market, and the emptiness of chasing past fund performance.","PeriodicalId":171289,"journal":{"name":"Corporate Law: Corporate Governance Law eJournal","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114887075","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}