Posts filed under “Legal”
Awesome column by my BV colleague Mark Gilbert, observing that true ‘Lehman Moments’ must clear certain hurdles — and most that are beinfg termed that simply don’t.
It isn’t a Lehman Moment . . .
• If people are calling it one.
• Unless somewhere in Germany there is a Landesbank up to its neck in trouble.
• If the endangered firm has a friend in its hour of need.
• if the CEO isn’t issuing denials and reassurances, or blaming speculators.
• if it doesn’t contaminate an entire industry.
He concludes that “So far, Lehman is still in a class of its own” — and I agree.
Go read the entire column here.
True `Lehman Moments’ Must Clear These Hurdles
Bloomberg, October 1, 2015
Today’s column is a going to be a bit technical, but stick with it. It’s about litigation and gaming the system. No, we’re not discussing Volkswagen’s diesel deception. Instead, we are going to look at the way some organizations seek advantages when it comes to adjudicating disputes. In the world of investing, this comes up…Read More
Now the DOJ Admits They Got it Wrong William K. Black September 10, 2015 By issuing its new memorandum the Justice Department is tacitly admitting that its experiment in refusing to prosecute the senior bankers that led the fraud epidemics that caused our economic crisis failed. The result was the death of…Read More
In a move that can only mean a presidential election campaign is upon us, the Justice Department said it is finally going to pursue individual white-collar criminals. As the New York Times reported, the Justice Department “issued new policies on Wednesday that prioritize the prosecution of individual employees – not just their companies – and put pressure on corporations to…Read More
Who owns a company?
Speech by Mr Andrew G Haldane, Executive Director and Chief Economist of the Bank of England, at the University of Edinburgh Corporate Finance Conference, Edinburgh
BIS central bankers’ speeches, 22 May 2015
* * *
I would like to thank Jeremy Franklin, Conor Macmanus, Jennifer Nemeth, Ben Norman, Peter Richardson, Orlando Fernandez Ruiz, John Sutherland, Ali Uppal and Matthew Willison for their help in preparing the text. I would also like to thank Andrew Bailey, Mark Carney, Iain de Weymarn, Sam Harrington, Alan Murray, Rhys Phillips and David Rule
for their comments and contributions.
This might seem like a simple question with a simple answer. At least for publicly listed companies, its owners are its shareholders. It is they who claim the profits of the company, potentially in perpetuity. It is they who exercise control rights over the management of the company from whom they are distinct. And it is they whose objectives have primacy in the running of the company.
This is corporate finance 101. It is the centrepiece of most corporate finance textbooks. It is the centrepiece of company law. It is the centrepiece of most public policy discussions of corporate governance. And it is a structure which, ultimately, has survived the test of time, having existed in more or less the same form for over 150 years in most advanced economies.
That the public company has been a success historically is not subject to serious dispute. It was no coincidence that its arrival in a number of advanced economies, in the middle of the 19th century, marked the dawn of mass industrialisation. The public company was a key ingredient in this second industrial revolution. Perhaps for that reason, the public company is, in many people’s eyes, the very fulcrum of capitalist economies.
Yet despite its durability and success, across countries and across time, this corporate model has not gone unquestioned. Recently, these questions have come thick and fast, with a rising tide of criticism of companies’ behaviour, from excessive executive remuneration, to unethical practices, to monopoly or oligopoly powers, to short-termism. These concerns appear to be both strongly-felt and widely-held.
Among the general public, surveys suggest a majority do not trust public companies, especially big companies.1 Among professional investors, sentiment is well-encapsulated by the following quote from Larry Fink, CEO of Blackrock – the world’s largest asset manager – in a letter sent to the Chairmen and CEOs of the top 500 US companies earlier this year:2
“[M]ore and more corporate leaders have responded with actions that can deliver immediate returns to shareholders, such as buybacks or dividend increases, while underinvesting in innovation, skilled workforces or essential capital expenditures necessary to sustain long-term growth.”
Among academics, John Kay’s UK government-initiated review into short-termism in equity markets and their effect on listed companies (Kay (2012)), Colin Mayer’s Firm Commitment (Mayer (2013)) and Lynn Stout’s. The Shareholder Value Myth (Stout (2012)) each raise deep and far-reaching questions about the purpose and structure of today’s companies.
Are these concerns legitimate? What is their precise micro-economic source? And are they now of sufficient macro-economic importance to justify public policy intervention? To answer those questions, it is useful to start with the origins of modern-day companies, before looking at the potential incentive problems among stakeholders embedded in those structures. Finally, I consider public policy actions that might mitigate these problems.
These problems are not specific to any industry. But banks’ balance sheets and governance structures mean they may be especially prone to these incentive problems. So I will use them to illustrate some of the micro-economic frictions and their macro-economic impact. Indeed, it is no coincidence that the most significant changes to corporate governance practices recently have been within the banking sector.
A short history of companies
Let me begin by defining “corporate governance” in its broadest sense: as the set of arrangements that determine a company’s objectives and how control rights, obligations and decisions are allocated among various stakeholders in the company (Allen and Gale (2000)). These stakeholders comprise not only shareholders and managers, but also creditors, employees, customers and clients, government, regulators and wider society.
Over the past two centuries, several dozen pieces of company legislation have been enacted in the UK alone. This legislation has successively defined and redefined these purposes, rights and obligations among stakeholders. This legislative path has been long and winding – Table 1 provides a summary. It has been shaped importantly by the social, legal and economic climate of the day. And it is the interplay between these contextual factors that, through an evolutionary process, has delivered today’s corporate governance model.
“The Fourth Amendment was designed to stand between us and arbitrary governmental authority. For all practical purposes, that shield has been shattered, leaving our liberty and personal integrity subject to the whim of every cop on the beat, trooper on the highway and jail official. The framers would be appalled.”—Herman Schwartz, The Nation Trying to…Read More
How can the life of such a man Be in the palm of some fool’s hand? To see him obviously framed Couldn’t help but make me feel ashamed to live in a land Where justice is a game.—Bob Dylan, “Hurricane” Justice in America is not all it’s cracked up to be. Just ask…Read More