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The Shifting Tides Of Merger Litigation, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall S. Thomas 2017 U.S. Securities and Exchange Commission

The Shifting Tides Of Merger Litigation, Matthew D. Cain, Jill E. Fisch, Steven Davidoff Solomon, Randall S. Thomas

Steven Davidoff Solomon

In 2015, Delaware made several important changes to its laws concerning merger litigation. These changes, which were made in response to a perception that levels of merger litigation were too high and that a substantial proportion of merger cases were not providing value, raised the bar, making it more difficult for plaintiffs to win a lawsuit challenging a merger and more difficult for plaintiffs’ counsel to collect a fee award.

We study what has happened in the courts in response to these changes. We find that the initial effect of the changes has been to decrease the volume of merger ...


Is Say On Pay All About Pay? The Impact Of Firm Performance, Jill E. Fisch, Darius Palia, Steven Davidoff Solomon 2017 University of Pennsylvania Law School

Is Say On Pay All About Pay? The Impact Of Firm Performance, Jill E. Fisch, Darius Palia, Steven Davidoff Solomon

Steven Davidoff Solomon

The Dodd-Frank Act of 2010 mandated a number of regulatory reforms including a requirement that large U.S. public companies provide their shareholders with the opportunity to cast a non-binding vote on executive compensation. The “say on pay” vote was designed to rein in excessive levels of executive compensation and to encourage boards to adopt compensation structures that tie executive pay more closely to performance. Although the literature is mixed, many studies question whether the statute has had the desired effect. Shareholders at most companies overwhelmingly approve the compensation packages, and pay levels continue to be high. Although a lack ...


How Corporate Governance Is Made: The Case Of The Golden Leash, Matthew D. Cain, Jill E. Fisch, Sean J. Griffith, Steven Davidoff Solomon 2017 U.S. Securities and Exchange Commission

How Corporate Governance Is Made: The Case Of The Golden Leash, Matthew D. Cain, Jill E. Fisch, Sean J. Griffith, Steven Davidoff Solomon

Steven Davidoff Solomon

This Article presents a case study of a corporate governance innovation—the incentive compensation arrangement for activist-nominated director candidates colloquially known as the “golden leash.” Golden leash compensation arrangements are a potentially valuable tool for activist shareholders in election contests. In response to their use, several issuers adopted bylaw provisions banning incentive compensation arrangements. Investors, in turn, viewed director adoption of golden leash bylaws as problematic and successfully pressured issuers to repeal them. The study demonstrates how corporate governance provisions are developed and deployed, the sequential response of issuers and investors, and the central role played by governance intermediaries—activist ...


Confronting The Peppercorn Settlement In Merger Litigation: An Empirical Analysis And A Proposal For Reform, Sean J. Griffith, Steven D. Solomon, Jill E. Fisch 2017 Fordham University School of Law

Confronting The Peppercorn Settlement In Merger Litigation: An Empirical Analysis And A Proposal For Reform, Sean J. Griffith, Steven D. Solomon, Jill E. Fisch

Steven Davidoff Solomon

Shareholder litigation challenging corporate mergers is ubiquitous, with the likelihood of a shareholder suit exceeding 90%. The value of this litigation, however, is questionable. The vast majority of merger cases settle for nothing more than supplemental disclosures in the merger proxy statement. The attorneys that bring these lawsuits are compensated for their efforts with a court-awarded fee. This leads critics to charge that merger litigation benefits only the lawyers who bring the claims, not the shareholders they represent. In response, defenders of merger litigation argue that the lawsuits serve a useful oversight function and that the improved disclosures that result ...


The Corporation As Sovereign, Allison D. Garrett 2017 University of Maine School of Law

The Corporation As Sovereign, Allison D. Garrett

Maine Law Review

In the past two hundred years, sovereignty devolved from the monarch to the people in many countries; in our lifetimes, it has devolved in several significant ways from the people to the corporation. We are witnesses to the erosion of traditional Westphalian concepts of sovereignty, where the chess game of international politics is played out by nation-states, each governing a certain geographic area and group of people. Eulogies for the nation-state often cite globalization as the cause of death. The causa mortis is characterized by the increase in the power and normative influence of supranational organizations, such as the United ...


The "New" Fiduciary Standards Under The Revised Uniform Limited Liability Company Act: More Bottom Bumping From Nccusl, Rutheford B. Campbell Jr. 2017 University of Maine School of Law

The "New" Fiduciary Standards Under The Revised Uniform Limited Liability Company Act: More Bottom Bumping From Nccusl, Rutheford B. Campbell Jr.

Maine Law Review

Between 1995 and 2001, the influential National Conference of Commissioners on Uniform State Laws (NCCUSL) promulgated iterations of uniform laws pertaining to partnerships, limited partnerships and limited liability companies. One or more of those acts have been widely adopted by state legislatures. Each of the three acts—the Uniform Partnership Act (1997) (hereinafter RUPA), the Uniform Limited Partnership Act (2001) (hereinafter ULPA (2001)), and the Uniform Limited Liability Company Act (1996) (hereinafter ULLCA) —contains identical fiduciary duty provisions. The acts all adopt the same standards for the duty of care and the duty of loyalty, and offer parties the same ...


Amicus Brief: Koshy V. Sachdev, Brian J.M. Quinn, Niloufar Abae, Alex Pena 2017 Boston College Law School

Amicus Brief: Koshy V. Sachdev, Brian J.M. Quinn, Niloufar Abae, Alex Pena

Brian JM Quinn

No abstract provided.


The Modigliani-Miller Theorem At 60: The Long-Overlooked Legal Applications Of Finance’S Foundational Theorem, Michael S. Knoll 2017 University of Pennsylvania Law School

The Modigliani-Miller Theorem At 60: The Long-Overlooked Legal Applications Of Finance’S Foundational Theorem, Michael S. Knoll

Faculty Scholarship

2018 marks the 60th anniversary of the publication of Franco Modigliani and Merton Miller’s The Cost of Capital, Corporation Finance, and the Theory of Investment. Widely hailed as the foundation of modern finance, their article, which purports to demonstrate that a firm’s value is independent of its capital structure, is little known by lawyers, including legal academics. That is unfortunate because the Modigliani-Miller capital structure irrelevancy proposition (when inverted) provides a framework that can be extremely useful to legal academics, practicing attorneys and judges.


Uas Investments, Llc Order On Cross Motions For Summary Judgment, Elizabeth E. Long 2017 Fulton County Superior Court

Uas Investments, Llc Order On Cross Motions For Summary Judgment, Elizabeth E. Long

Georgia Business Court Opinions

No abstract provided.


Newsroom: Is Wall Between Church And State Crumbling? 10-10-2017, Diana Hassel 2017 Roger Williams University School of Law

Newsroom: Is Wall Between Church And State Crumbling? 10-10-2017, Diana Hassel

Life of the Law School (1993- )

No abstract provided.


Rwu First Amendment Blog: Diana Hassel's Blog: Is The Wall Between Church And State Crumbling? 10-07-2017, Diana Hassel 2017 Roger Williams University School of Law

Rwu First Amendment Blog: Diana Hassel's Blog: Is The Wall Between Church And State Crumbling? 10-07-2017, Diana Hassel

Law School Blogs

No abstract provided.


Partnerships Or Joint Ventures As Vehicles To Achieve Charitable Objectives, Bruce R. Hopkins 2017 St. John's University School of Law

Partnerships Or Joint Ventures As Vehicles To Achieve Charitable Objectives, Bruce R. Hopkins

The Catholic Lawyer

No abstract provided.


Partnerships Or Joint Ventures As Vehicles To Achieve Charitable Objectives, James J. McGovern 2017 St. John's University School of Law

Partnerships Or Joint Ventures As Vehicles To Achieve Charitable Objectives, James J. Mcgovern

The Catholic Lawyer

No abstract provided.


Governance Challenges Of Listed State- Owned Enterprises Around The World: National Experiences And A Framework For Reform, Curtis J. Milhaupt, Mariana Pargendler 2017 Columbia Law School

Governance Challenges Of Listed State- Owned Enterprises Around The World: National Experiences And A Framework For Reform, Curtis J. Milhaupt, Mariana Pargendler

Cornell International Law Journal

Despite predictions of their demise in the aftermath of the collapse of socialist economies in Eastern Europe, state-owned enterprises (SOEs) are very much alive in the global economy. The relevance of listed SOEs— firms subject to government ownership, but with a portion of their shares traded on public stock markets— has persisted and even increased around the world, as policymakers have encouraged the partial floating of SOE shares either as a first step toward, or as an alternative to, privatization. In this Article, we evaluate the governance challenges associated with mixed ownership of enterprise, and examine a variety of national ...


Reviving Reliance, Ann M. Lipton 2017 Tulane Law School

Reviving Reliance, Ann M. Lipton

Fordham Law Review

This Article explores the misalignment between the disclosure requirements of the federal securities laws and the private causes of action available to investors to enforce those requirements. Historically, federally mandated disclosures were designed to allow investors to set an appropriate price for publicly traded securities. Today’s disclosures, however, also enable stockholders to participate in corporate governance and act as a check on managerial misbehavior. To enforce these requirements, investors’ chief option is a claim under the general antifraud statute, section 10(b) of the Securities Exchange Act of 1934. But courts are deeply suspicious of investors’ attempts to use ...


Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic 2017 University of Michigan Law School

Humanizing The Corporation While Dehumanizing The Individual: The Misuse Of Deferred-Prosecution Agreements In The United States, Andrea Amulic

Michigan Law Review

American prosecutors routinely offer deferred-prosecution and nonprosecution agreements to corporate defendants, but not to noncorporate defendants. The drafters of the Speedy Trial Act expressly contemplated such agreements, as originally developed for use in cases involving low-level, nonviolent, noncorporate defendants. This Note posits that the almost exclusive use of deferrals in corporate cases is inconsistent with the goal that these agreements initially sought to serve. The Note further argues that this exclusivity can be attributed to prosecutors’ tendency to only consider collateral consequences in corporate cases and not in noncorporate cases. Ultimately, this Note recommends that prosecutors evaluate collateral fallout when ...


The Economic Justice Imperative For Transactional Law Clinics, Lynnise E. Pantin 2017 Boston College Law School

The Economic Justice Imperative For Transactional Law Clinics, Lynnise E. Pantin

Lynnise E. Pantin

The economic, political, and social volatility of the sixties and seventies, out of which clinical legal education was born, has certain mythical qualities for most law students, and perhaps some law professors. America still bears the scars of the economic policies of those previous eras, such as redlining, blockbusting, poverty and urban decay. While the realities of the era may seem out of reach for many of our students, those policies arising out of that era have contributed to the wealth gap in this country, which has worsened over the last twenty years. Now more than ever, society needs social ...


Is Say On Pay All About Pay? The Impact Of Firm Performance, Jill E. Fisch, Darius Palia, Steven Davidoff Solomon 2017 University of Pennsylvania Law School

Is Say On Pay All About Pay? The Impact Of Firm Performance, Jill E. Fisch, Darius Palia, Steven Davidoff Solomon

Faculty Scholarship

The Dodd-Frank Act of 2010 mandated a number of regulatory reforms including a requirement that large U.S. public companies provide their shareholders with the opportunity to cast a non-binding vote on executive compensation. The “say on pay” vote was designed to rein in excessive levels of executive compensation and to encourage boards to adopt compensation structures that tie executive pay more closely to performance. Although the literature is mixed, many studies question whether the statute has had the desired effect. Shareholders at most companies overwhelmingly approve the compensation packages, and pay levels continue to be high.

Although a lack ...


Corporate Conflict Management 4.0: Reflections On How To Get There From Here, Peter W. Benner 2017 Pepperdine University

Corporate Conflict Management 4.0: Reflections On How To Get There From Here, Peter W. Benner

Pepperdine Dispute Resolution Law Journal

No abstract provided.


Distributed Governance, Carla L. Reyes, Nizan Geslevich Packin, Ben Edwards 2017 Stetson University

Distributed Governance, Carla L. Reyes, Nizan Geslevich Packin, Ben Edwards

William & Mary Law Review Online

Distributed ledger technology disrupts traditional business organizations by introducing new business entities without the directors and officers of traditional corporate entities. Although these emerging entities offer intriguing possibilities, distributed entities may suffer significant collective action problems and expose investors to catastrophic regulatory and governance risks. Our Article examines key considerations for stakeholders and argues that distributed entities must be carefully structured to function effectively. This Article breaks new ground by critically examining distributed entities. We argue that a distributed model is most appropriate when distributed ledger technology solves a unique corporate governance problem. We caution against ignoring the lessons painstakingly ...


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