Corporate Law: Corporate & Securities Law eJournal最新文献

Waiting for the Omelet to Set: Match Specific Assets and Minority Oppression in the Close Corporation 等待煎蛋卷:匹配特定资产和封闭公司中的少数人压迫

Corporate Law: Corporate & Securities Law eJournal Pub Date : 2012-03-15 DOI: 10.2139/ssrn.145529

Edward B. Rock, M. Wachter

{"title":"Waiting for the Omelet to Set: Match Specific Assets and Minority Oppression in the Close Corporation","authors":"Edward B. Rock, M. Wachter","doi":"10.2139/ssrn.145529","DOIUrl":"https://doi.org/10.2139/ssrn.145529","url":null,"abstract":"We argue that the close corporation form is uniquely suited to enterprises with a high density of match specific assets, particularly where the assets are not yet fully developed, as in an omelet factory. The corporate law limitations on exit, combined with the corporate law rules against non pro rata distributions, largely prevent opportunistic behavior by the majority shareholder towards the minority. By locking both into the enterprise, the majority shareholder, in maximizing its own wealth, also maximizes the wealth of the minority. The projects are given the opportunity to develop without concern that parties could threaten to remove their capital in order to secure a greater share of the profits. Indeed, as we show, many of the persistent features of the stylized close corporation can best be understood as self-enforcing mechanisms to protect the participants from opportunistic behavior by fellow participants. Starting from this view of close corporations, we analyze the classic problem(s) of minority oppression in the close corporation. We argue that minority oppression can best be understood as a combination of two separate and separable dimensions, with two distinct legal responses. The first dimension is a version of precisely the same problem that, in employment law, arises under the heading of \"employment at will,\" and is best handled with the same judicial passivity, absent explicit agreements to the contrary. To do otherwise is unnecessary and threatens to undermine the self-enforcing structure in place. The second dimension of the problem is fundamentally different from employment at will, and involves attempts by the controlling shareholder to make non pro rata distributions of firm assets. Here, we show that vigorous judicial enforcement of a prohibition on such distributions, including the vigorous protection of ancillary rights to information, is necessary to enforce norms of non-opportunism. We further show that courts are much better at sorting out issues of this sort than employment at will type issues because doing so does not require either relying on unverifiable factors, nor valuing assets that the courts cannot value. Out of our appreciation of the beauty of the close corporation form comes the implication that courts further the purposes of the close corporation when they hold narrowly within the corporate form and avoid ad hoc adjudication of substance. In this model of the close corporation, courts remain passive in the face of the employment issues that animate many bitter close corporation cases. By contrast, courts take an active role in blocking the attempts by majority shareholders to enter into self-dealing transactions with the corporation as a way around the sacred prohibitions on non pro-rata distributions.","PeriodicalId":224394,"journal":{"name":"Corporate Law: Corporate & Securities Law eJournal","volume":"53 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128174643","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}

引用次数: 44

A Law and Finance Analysis of Initial Public Offerings 首次公开发行的法律与财务分析

Corporate Law: Corporate & Securities Law eJournal Pub Date : 2003-11-10 DOI: 10.2139/ssrn.236042

P. Högfeldt, M. Holmén

引用次数: 124

The New Model Index Fund 新模式指数基金

Corporate Law: Corporate & Securities Law eJournal Pub Date : 2001-11-01 DOI: 10.2139/ssrn.275593

P. Ali, M. Gold

引用次数: 1

Barbarians at the Gatekeepers?: A Proposal for a Modified Strict Liability Regime 守门人那里有野蛮人吗?:修订严格责任制度的建议

Corporate Law: Corporate & Securities Law eJournal Pub Date : 2001-08-27 DOI: 10.2139/ssrn.281360

Frank Partnoy

{"title":"Barbarians at the Gatekeepers?: A Proposal for a Modified Strict Liability Regime","authors":"Frank Partnoy","doi":"10.2139/ssrn.281360","DOIUrl":"https://doi.org/10.2139/ssrn.281360","url":null,"abstract":"This article attempts to fill a few of the gaps in current scholarship about gatekeepers, and sets forth a proposal for a modified strict liability regime that would avoid many of the problems and costs associated with the current due diligence-based approaches. Under the proposed regime, gatekeepers (investment banking, accounting, and law firms) would be strictly liable for any securities fraud damages paid by the issuer pursuant to a settlement or judgment. Gatekeepers would not have any due diligence-based defenses for securities fraud. Instead, gatekeepers would be permitted to limit their liability by agreeing to and disclosing a percentage limitation on the scope of their liability for the issuer's damages. For example, a gatekeeper for an issue might agree ex ante to be strictly liable for 10 percent of the issuer's liability related to the issuance, measured by the present value of any payment by the issuer pursuant to a settlement or judgment. A particular gatekeeper's liability would be limited to the issuer's liability related to that gatekeeper's role (e.g., counsel for the issuer or the underwriters generally would not be liable for material misstatements or omissions in audited financial statements). The percentage for each gatekeeper could range based on competitive bargaining and market forces, with a minimum limit (e.g., the amount of the gatekeeper's fee, or perhaps a fixed amount of 1 to 5 percent) set by law. This modified strict liability proposal is intended to solve two important and parallel problems in securities regulation. The first problem is the rapidly increasing and substantial costs related to the role of gatekeepers in securities fraud, including both the costs of behavior designed to capture the benefit of due diligence-based defenses and - more importantly - the costs of resolving disputes about gatekeeper behavior. The second problem is that the value of gatekeeper certification is declining at the same time costs are increasing. The article gathers evidence to demonstrate these two problems, and shows how a strict liability regime might ameliorate them. Throughout this discussion, the article challenges the assumption that gatekeepers act as reputational intermediaries.","PeriodicalId":224394,"journal":{"name":"Corporate Law: Corporate & Securities Law eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117079033","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}

引用次数: 39

Shareholders as Principals 股东为主体

Corporate Law: Corporate & Securities Law eJournal Pub Date : 2001-06-26 DOI: 10.2139/SSRN.275049

Deborah A. DeMott

引用次数: 6

An Analysis of Sec Guidelines for Executing Open Market Repurchases 美国证券交易委员会公开市场回购执行准则分析

Corporate Law: Corporate & Securities Law eJournal Pub Date : 2001-04-09 DOI: 10.2139/SSRN.267054

Douglas O. Cook, L. Krigman, J. Leach

引用次数: 80

The Ramifications of the Gilmer Decision for Firm Profitability 吉尔默决策对企业盈利能力的影响

Corporate Law: Corporate & Securities Law eJournal Pub Date : 2001-04-05 DOI: 10.2139/ssrn.264517

S. Abraham, P. Voos

引用次数: 2

From Metaphor to Reality in Corporate Law 公司法从隐喻到现实

Corporate Law: Corporate & Securities Law eJournal Pub Date : 2001-01-08 DOI: 10.2139/SSRN.254117

K. Greenfield

{"title":"From Metaphor to Reality in Corporate Law","authors":"K. Greenfield","doi":"10.2139/SSRN.254117","DOIUrl":"https://doi.org/10.2139/SSRN.254117","url":null,"abstract":"This essay is in response to a commentary by Professor David Millon, who ably argues in the same journal that a dependence on metaphor drives much of the debate within corporate law jurisprudence and corporate law scholarship. This essay joins Millon in his criticism. For decades, scholars have used metaphors ? corporation as person, corporation as creature of the state, corporation as property, corporation as contract, corporation as community, to name the most prominent ? as justifications for the imposition of, or freedom from, legal and ethical requirements. The metaphors are often taken as self-evident. The legal and ethical arguments then flow quite naturally. Currently, the dominant metaphors in corporate law spring from the rights-based common law of contract and property. Arguments that corporations have obligations to stakeholders other than shareholders are deemed inconsistent with property or contract norms. It is no coincidence that those who oppose more socially responsible corporate governance regimes choose metaphors from the common law. Common law rights have long had significant rhetorical power. Much of this persuasiveness is based on the fact that they are seen as neutral, pre-political, and pre-legal. Corporate law is private law, defined by common law principles, and therefore neutral. To change it is impermissible. These rights-based metaphors used to explain corporate law harken back to Lochner v. New York, and are subject to some of the same criticisms. Even the so-called laissez-faire marketplace is shot through with government, and even the most basic common law entitlements are functions of legal rules. Contract and property law are no more neutral, private, or pre-legal than statutory law. One cannot justify the present make-up of corporate law as non-political or pre-legal because it is based on common law principles any more than Lochner could justify common law itself as non-political or pre-legal. This essay suggests that our thinking about corporate law would be improved if we jettisoned the metaphors of private law and instead considered corporate law as regulation. That is, corporate law should be subject to the same analysis as environmental law, labor law, tax law, communications law, and the like. At a high level of generality, the analysis with regard to corporate law rules should be the same as the analysis for other kinds of statutes and regulations. One should ask what we want our society to look like and then seek to craft a bundle of legal rules and regulatory programs that are likely to move us in that direction.","PeriodicalId":224394,"journal":{"name":"Corporate Law: Corporate & Securities Law eJournal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2001-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121163119","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}

引用次数: 0

The Sec's 'Fair Value' Standard for Mutual Fund Investment in Restricted Shares and Other Illiquid Assets 美国证券交易委员会对共同基金投资于限制性股票和其他非流动性资产的“公允价值”标准

Corporate Law: Corporate & Securities Law eJournal Pub Date : 2000-11-01 DOI: 10.2139/ssrn.249317

Janet Kiholm Smith, Richard L. Smith, K. Williams

{"title":"The Sec's 'Fair Value' Standard for Mutual Fund Investment in Restricted Shares and Other Illiquid Assets","authors":"Janet Kiholm Smith, Richard L. Smith, K. Williams","doi":"10.2139/ssrn.249317","DOIUrl":"https://doi.org/10.2139/ssrn.249317","url":null,"abstract":"Mutual funds generally do not invest in venture capital, private equity, or restricted shares of public companies. Consequently, individuals who desire to invest in such securities are unable to do so through diversified mutual funds. In this paper, we identify public policies and regulations that discourage mutual fund involvement in the markets for illiquid equity. We also present evidence that changes in SEC policy caused mutual funds to retreat from investing in illiquid equity. Under the Investment Company Act of l940, the SEC requires mutual fund boards to determine and report the “fair value” of their investments in restricted shares and other illiquid equity claims. The SEC interprets fair value to mean value in current sale. Under the Investment Company Act, fair value reporting is a “certification” standard that presumes investors rely on the value representations of the fund board and its auditors. We consider whether alternatives to certification and current sale valuation could reduce barriers to mutual fund investment, without exposing individuals who invest in mutual funds to excessive risk or potential manipulation. To assess the effects of public policies, we analyze recent efforts of the SEC to apply the fair-value standard and examine court decisions arising from subsequent litigation. We also analyze the financial economics literature concerning discounts for illiquidity and the implications for valuing restricted shares. The paper concludes with a discussion of policy alternatives, including allowing funds to rely more on “transparency” in lieu of certification and allowing funds more latitude in determining and reporting the values of their illiquid securities.","PeriodicalId":224394,"journal":{"name":"Corporate Law: Corporate & Securities Law eJournal","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2000-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132962726","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}

引用次数: 2

How IPO Pricing Method Affects Underpricing and Issue Cost: Evidence on Japan's Change from Auction Method Pricing to Book-Building IPO定价方式对抑价和发行成本的影响:基于日本从拍卖定价向簿记定价转变的证据

Corporate Law: Corporate & Securities Law eJournal Pub Date : 2000-10-01 DOI: 10.2139/ssrn.248032

Richard L. Smith, K. Kutsuna

引用次数: 13