The Race to the Bottom: Corporate Governance

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Corporate Governance

The Race to the Bottom

A student-faculty collaboration discussing all areas of corporate governance including: methods for improving, the role of the Securities and Exchange Commission, the role of Delaware, and independent directors, impact of Sarbanes-Oxley.
By J Robert Brown Jr et al.

Post Frequency: 21.6/day

Last Entry: April 01, 2011 at 09:00:35

An Uninterpretive Interpretive Release: Corporate Web Sites and the Antifraud Provisions (Part 2)

Posted on August 04, 2008
On Friday, the Commission issued its much awaited interpretive release containing guidance on the use of company websites. Most of the "interpretation" was common sense applications of Regulation FD and the antifraud provisions, neither novel nor particularly useful but relatively harmless...

An Uninterpretive Interpretive Release: Encouraging the Use of Corporate Web Sites and the Opportunity Foregone (Part 1)

Posted on August 04, 2008
A huge component of corporate governance is disclosure. The SEC uses disclosure for a variety of purposes including to influence the substantive behavior of officers and directors. This is discussed at length in Corporate Governance, the Securities and Exchange Commission, and the Limits of Disclosure...

An Uninterpretive Interpretive Release: Expanding Liability for Third Party Misstatements (Part 3)

Posted on August 04, 2008
We are discussing the much awaited interpretive release from the SEC containing guidance on the use of company websites. The release discusses the issue of hyperlinks and the problem of adopting third party statements linked to the company's web site...

US News and a Change in the Formula for Law School Rankings: Part time v. Full Time Students: What's a Law School to Do? (Part 5)

Posted on August 01, 2008
We occasionally examine issues associated with law school rankings (for a paper on the impact of law blogging and rankings can be found here). We are examining the impact of a proposal put out by US News to alter the formula for determining the median LSAT and GPA (which provide 22...

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US News and a Change in the Formula for Law School Rankings: Part Time v. Full Time Students (Part 4)

Posted on July 31, 2008
We occasionally examine issues associated with law school rankings (for a paper on the impact of law blogging and rankings can be found here). We are examining the impact of a proposal put out by US News to alter the formula for determining the median LSAT and GPA (which provide 22...

The Saga of Joe Nacchio Continues

Posted on July 30, 2008
The ruling is in. The Tenth Circuit voted to hear the appeal of Joe Nacchio en banc. The Race to the Bottom argued that the case should be reheard. The issues to be briefed en banc? 1 . Was the defendant sufficiently on notice that he was required either to present evidence in support of the expert's methodology or request an evidentiary hearing in advance of presenting the expert ?s testimony? 2 ...

US News and a Change in the Formula for Law School Rankings: Part Time v. Full Time Students (Part 3)

Posted on July 30, 2008
We occasionally examine issues associated with law school rankings (for a paper on the impact of law blogging and rankings can be found here). We are examining the impact of a proposal put out by US News to alter the formula for determining the median LSAT and GPA (which provide 22...

US News and a Change in the Formula for Law School Rankings: Part Time v. Full Time Students (Part 2)

Posted on July 29, 2008
We occasionally examine issues associated with law school rankings (for a paper on the impact of law blogging and rankings can be found here). We are examining the impact of a proposal put out by US News to alter the formula for determining the median LSAT and GPA (which provide 22...

US News and a Change in the Formula for Law School Rankings: Part Time v. Full Time Students (Part 1)

Posted on July 28, 2008
While we typically focus on issues of corporate governance, we are also tangentially interested in law school rankings. An example can be found in the paper, Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings...

Law School Rankings and Beneficial Ownership

Posted on July 26, 2008
On this Blog, we enjoy examining assorted issues and developments in signficant detail, often examining the primary materials filed in a case. Beginning on Monday, we will run two parallel series. In the morning, each day, the 6:15 am post will be devoted to the materials filed before the Second Circuit in the CSX case...

Delaware Courts and the Validation of Misleading Disclosure: In re Transkaryotic (Orphan Drugs)(Part 7)

Posted on July 25, 2008
We are discussing In re Transkaryotic, a relatively recent Delaware case that contains bad law and reflect the anti-plaintiff bias of the Delaware courts. The Court described some of plaintiffs' description as "sloppy and disingenuous"...

Delaware Courts and the Validation of Misleading Disclosure: In re Transkaryotic (In Delaware, It's Tough to be a Plaintiff)(Part 6)

Posted on July 25, 2008
We are discussing In re Transkaryotic, a relatively recent Delaware case that contains bad law and reflects the anti-plaintiff bias of the Delaware courts. The case opened with a condescending slap at the role of plaintiffs and presumably their lawyers, likening them to scavengers who concoct theories of misbehavior out of rubble...

Delaware Courts and the Validation of Misleading Disclosure: In re Transkaryotic (Excessive Pleading Standards)(Part 5)

Posted on July 24, 2008
We are discussing In re Transkaryotic, a relatively recent Delaware case that contains bad law and reflects the anti-plaintiff bias of the Delaware courts. We have noted numerous times on this Blog how Delaware courts use excessively high pleading standards to dismiss meritorious cases...

The Race to the Bottom and the Library of Congress

Posted on July 23, 2008
One benefit to blogging is that it often results in awareness of things happening in the online universe that would otherwise be entirely unknown. Yesterday, this Blog received an email from the Library of Congress. We were honored to learn that The Race to the Bottom had been invited to be included in the Library's "historic collection of internet materials related to Legal Blawgs...

Delaware Courts and the Validation of Misleading Disclosure: In re Transkaryotic (The Irrelevancy of Divided Loyalties)(Part 4)

Posted on July 23, 2008
In the area of director independence, Delaware courts routinely ignore evidence of obvious conflicts of interest. In this case, the largest shareholder of Transkaryotic was Warburg Pincus, a private equity fund. At one point, the fund owned 14% of the shares...

Delaware Courts and the Validation of Misleading Disclosure: In re Transkaryotic (Friendship Is Not Enough)(Part 3)

Posted on July 22, 2008
We are discussing In re Transkaryotic, a relatively recent Delaware case that contains bad law and reflects the anti-plaintiff bias of the Delaware courts. When the Delaware Supreme Court held that friendship with an interested party could result in the loss of independence in Brehm v...

Delaware Courts and the Validation of Misleading Disclosure: In re Transkaryotic (A License to Omit) (Part 2)

Posted on July 22, 2008
We are discussing In re Transkaryotic. In this case, shareholders approved a merger by a very close vote. In the immediate aftermath, plaintiffs filed appraisal actions. Approximately eighteen months later, after the benefit of discovery in the appraisal action, plaintiffs filed an action for breach of fiduciary duty...

Corporate Governance Lessons from Great Britain

Posted on July 21, 2008
The WSJ just ran an article on what it describes as "a new breed of directors," those members of the board who actually reach out to large shareholders and listen to their concerns. Big news in the United States but common practice in the United Kingdom...

Delaware Courts and the Validation of Misleading Disclosure: In re Transkaryotic (The Anti-Shareholder Bias) (Part 1)

Posted on July 21, 2008
It is tough to be a plaintiff's lawyer in Delaware, as the decision in In re Transkaryotic Therapies illustrates. The case is full of tendentious tone and criticism of the plaintiff. But worse than attitude, the case contains very bad law and demonstrates once again that the Delaware courts have no interest in imposing meaningful standards on boards of directors...

As Predicted: The SEC and the Further Denial of Shareholder Access (A Final Comment) (Part 22)

Posted on July 19, 2008
We offer one final comment on CA v. AFSCME. The Court noted that those who "believe that CA’s shareholders should be permitted to make the proposed Bylaw as drafted part of CA’s governance scheme" could, among other things, accomplish the result by seeking "to amend the Certificate of Incorporation to include the substance of the Bylaw...

As Predicted: The SEC and the Further Denial of Shareholder Access (The Consequences) (Part 21)

Posted on July 18, 2008
The case has considerable consequences. Most immediately, shareholder proposed bylaws that call for the reimbursement of proxy expenses will be considered invalid unless they include a fiduciary out. This all but spells the death knell for the proposals...

As Predicted: The SEC and the Further Denial of Shareholder Access (The Actual Result) (Part 20)

Posted on July 18, 2008
The Delaware Supreme Court all but admitted its bias but professed to have no choice. As the opinion noted: In arriving at this conclusion, we express no view on whether the Bylaw as currently drafted, would create a better governance scheme from a policy standpoint...

As Predicted: The SEC and the Further Denial of Shareholder Access (The Actual Result) (Part 19)

Posted on July 18, 2008
We are discussing the Delaware Supreme Court's decision in CA v. AFSCME, an opinion that severely restricted the scope of shareholder bylaws and facilitated the ability of companies to exclude proposals under Rule 14a-8.The second issue concerned the impact of the bylaw on the board's fiduciary obligations...

As Predicted: The SEC and the Further Denial of Shareholder Access (The Anticipated Result) (Part 17)

Posted on July 18, 2008
The Delaware Supreme Court ruled yesterday on the two questions certified by the SEC. It should have dismissed the case for lack of jurisdiction but ignored the inconvenient fact in order to come down firmly on the side of management and all but prohibit meaningful bylaws that provide for reimbursement in the event of a successful proxy solicitation...

As Predicted: The SEC and the Further Denial of Shareholder Access (The Actual Result) (Part 18)

Posted on July 18, 2008
The SEC certified two questions. The first was whether the bylaw as a proper subject for action by shareholders. The Court concluded that it was, an apparent victory for shareholders. But this is Delaware and things are not as they always seem...

As Predicted: The SEC and the Further Denial of Shareholder Access (The Anticipated Result) (Part 16)

Posted on July 17, 2008
The opinion is posted on the DU Corporate Governance web site.

As Predicted: The SEC and the Further Denial of Shareholder Access (The Actual Result) (Part 15)

Posted on July 17, 2008
The decision is in. AFSCME loses (as predicted). The opinion will be posted shortly.

Plaintiffs and Prolixity: Wood v. Baum and The Use of Unnecesary Procedural Barriers (Part 4)

Posted on July 17, 2008
We are discussing Wood v. Baum, a recent Delaware Supreme Court upholding the dismissal of a derivative claim. Plaintiff alleged demand excusal because the directors signed false reports, authorized certain self interested transactions, served on the audit committee and ignored certain red flags...

Plaintiffs and Prolixity: Wood v. Baum (Part 3)

Delaware and the Anti-Shareholder Bias

Posted on July 16, 2008
We have been a bit remiss in our coverage of decisions coming out of Delaware. There have been a couple in recent weeks that deserve note. Over the next week or so, each morning, we will run a post on some of these decisions. They include Wood v...

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