Shareholder Rights Projectについての議論

Harvard大学のShareholder Rights Projectは,期差選任の上場会社を減少させるという成果を短期間で挙げたため,注目される存在だと思います。同プロジェクトの活動の合法性について疑義を表する論文が,スタンフォード大学の教授および現役の連邦証券取引委員会の委員から呈されました。

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Section 13(d)の改革提案(2)

先ほど紹介したGilson教授およびGordon教授によるSection 13(d)の改革提案へのコメントについて,Coffee教授もコメントしています。

Coffee教授は開示の強化に賛成の立場を取っているようです。

And I will raise their bid, by invoking two other familiar maxims: First, power corrupts, and absolute power is at least within view for institutional investors. Second, sunlight is the best disinfectant, electricity the best policeman. … If there are new problems accompanying this shift (as I would contend), the safest, least intrusive reform is disclosure, not direct governmental intervention.

… Their essay announces that institutional investors have power and prefer to act through proactive hedge funds. Frankly, it is hard to call this breaking news, as it has been true for more than a decade. …

To return to the higher level on which they wish to conduct this debate, Professor Gilson and Gordon are predicting the future, identifying proactive hedge funds as the good guys'' and managements as thebad guys.” They may be correct, but they are likely overgeneralizing. Virtue is not all on one side. … Transparency, as implemented through mandatory disclosure, plays the same protective role in our securities markets, …

via The CLS Blue Sky Blog

Section 13(d)の改革提案(1)

ここ一年くらい,時々話題になるSection 13(d)の改革提案について,Gilson教授およびGordon教授が,コラムを書いています。

So what is the impact of Agency Capitalism and how does it bear on the current, rather than the historical, operation of Section 13(d)? The short answer is that the intermediary institution’s business model stands between company management and the beneficial owner of the company’s equity. …

The result is that under an Agency Capitalism structure, the governance rights of equity are chronically undervalued. And it is at this point that activist investors enter the picture – they arbitrage the value of governance rights. Their business model, symbiotic with that of the intermediary institutions, involves identifying companies whose business strategies could be significantly improved, buying a toe hold stake, and then going public with a plan to convince the company in the first instance, or the institutional shareholders if the board disagrees and a proxy constant proves necessary, of the wisdom of the activist’s strategic proposal. If intermediary institutional owners agree and if the proposal turns out to be sound, everyone makes money, including especially the beneficiaries of the intermediary institutions – those of us saving for retirement.

This combination creates a kind of market stewardship – activists propose, sophisticated intermediary institutions decide. Activists cannot succeed, and cannot make money, unless the institutions vote for them. …

So what is the problem? Put simply, the proposal before the SEC would require earlier disclosure of the activist’s ownership, both by changing the way beneficial ownership is calculated to include derivative positions and by accelerating the time the activist must disclose its holdings after crossing the more inclusive ownership threshold. The proposal is thus a clever defensive response to activists – go after their business model. …

That leaves a final question: would we design the Williams Act differently if we were starting from scratch. That is the question that Dodd-Frank poses for the SEC: what should current regulation look like in light of current capital market conditions, not how can we roll the clock back to Sgt. Pepper. …

In the end, the point is simple. Proposals for regulatory change must be directed at the capital market we have now. Otherwise, it is no more than exercise in anachronism.

via The CLS Blue Sky Blog