Pub Date : 1900-01-01DOI: 10.36639/mbelr.10.2.hague
Emma Macfarlane
This paper critically assesses the Hague Rules’ stance on third-party joinder. Third-party joinder is an important feature in business human rights disputes. It is a mechanism that victims of human rights abuses can use to bring claims against corporate defendants where the victims do not otherwise have an underlying agreement on which to base their claim. Keeping in line with traditional conceptions of commercial arbitration, the Hague Rules are grounded in party consent to arbitrate. Conceptions of consent therefore have an outsized impact on the universe of parties who can bring actions against corporations before arbitral tribunals for human rights abuses. The main objective of this paper is to offer an alternative framework of third-party joinder and consent to achieve a better balance between the interests of claimants alleging human rights abuses and corporate defendants. Part I traces the rise of arbitral tribunals as fora for business human rights disputes. Part II outlines the procedural shortcomings of third-party joinder in business human rights cases before arbitral tribunals under the Hague Rules. Part III advocates for a new framework to guide arbitral tribunals when assessing whether to allow requests for third-party joinder.
{"title":"The Hague Rules on Third-Party Joinder: A Revised Framework","authors":"Emma Macfarlane","doi":"10.36639/mbelr.10.2.hague","DOIUrl":"https://doi.org/10.36639/mbelr.10.2.hague","url":null,"abstract":"This paper critically assesses the Hague Rules’ stance on third-party joinder. Third-party joinder is an important feature in business human rights disputes. It is a mechanism that victims of human rights abuses can use to bring claims against corporate defendants where the victims do not otherwise have an underlying agreement on which to base their claim. Keeping in line with traditional conceptions of commercial arbitration, the Hague Rules are grounded in party consent to arbitrate. Conceptions of consent therefore have an outsized impact on the universe of parties who can bring actions against corporations before arbitral tribunals for human rights abuses. The main objective of this paper is to offer an alternative framework of third-party joinder and consent to achieve a better balance between the interests of claimants alleging human rights abuses and corporate defendants.\u0000\u0000Part I traces the rise of arbitral tribunals as fora for business human rights disputes. Part II outlines the procedural shortcomings of third-party joinder in business human rights cases before arbitral tribunals under the Hague Rules. Part III advocates for a new framework to guide arbitral tribunals when assessing whether to allow requests for third-party joinder.","PeriodicalId":177599,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"67 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114676311","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}
Pub Date : 1900-01-01DOI: 10.36639/mbelr.7.2.theories
K. Goldman
Section I will describe the key players involved in wolf pack activism and their conflicting motives, including both the members of wolf packs and those affected by them. Given that not all shareholders have common interests, this will include an analysis of the motives of various types of shareholders and an analysis of how these diverse motives may affect the wealth sustainability of companies. Section II will explain the phenomenon of wolf packs in corporate governance by describing the circumstances that lead to their formation and the various regulations (or lack thereof) pertaining to them. Section III will describe divergent theories about shareholder value and how these theories impact views about wolf packs in corporate governance. Section IV will analyze the theories, taking into account the motives of the various players described in Section I. This analysis will include a discussion of which players are more likely to adopt each theory. Lastly, Section V will discuss potential reforms in light of the best theory on the impact of wolf pack activism.
{"title":"Theories and Solutions on Wolf Pack Activism","authors":"K. Goldman","doi":"10.36639/mbelr.7.2.theories","DOIUrl":"https://doi.org/10.36639/mbelr.7.2.theories","url":null,"abstract":"Section I will describe the key players involved in wolf pack activism and their conflicting motives, including both the members of wolf packs and those affected by them. Given that not all shareholders have common interests, this will include an analysis of the motives of various types of shareholders and an analysis of how these diverse motives may affect the wealth sustainability of companies. Section II will explain the phenomenon of wolf packs in corporate governance by describing the circumstances that lead to their formation and the various regulations (or lack thereof) pertaining to them. Section III will describe divergent theories about shareholder value and how these theories impact views about wolf packs in corporate governance. Section IV will analyze the theories, taking into account the motives of the various players described in Section I. This analysis will include a discussion of which players are more likely to adopt each theory. Lastly, Section V will discuss potential reforms in light of the best theory on the impact of wolf pack activism.","PeriodicalId":177599,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125913556","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}
Pub Date : 1900-01-01DOI: 10.36639/mbelr.8.2.unintentional
S. J. Cleveland
Three landmark decisions of the Delaware Supreme Court exhibit unintentional irony: Beam v. Stewart, Smith v. Van Gorkom, and Paramount Communications Inc. v. Time Inc. In Beam, the court concluded that, regarding the decision of whether to seek remedy against Martha Stewart, her fellow directors would not have jeopardized their reputations for the minimal gain of continuing their business and personal relationships with her. Ironically, the court failed to acknowledge that Martha Stewart—in trading on material nonpublic information, which gave rise to the corporate claim against her—jeopardized her reputation (ultimately losing hundreds of millions of dollars and her freedom) for minimal gain (less than $50,000). Having failed to acknowledge that internal inconsistency and unintentional irony, the court offered no explanation why some directors would jeopardize their reputations for minimal gain, but others would not do so. Part I attempts to fill the void and suggests that Stewart suffered from cognitive biases, which would not have affected her fellow directors. In Van Gorkom, the court famously concluded that the plaintiff carried his burden of proving that the board was grossly negligent in informing itself when selling the corporation, although, during a multi-month period, no bidder stepped forward with a superior proposal. The irony of the court’s conclusion is virtually self-evident. Part II further discusses subsequent precedent, which suggests that, viewed in retrospect, the board could have carried its burden that it reasonably informed itself, turning the conclusion of Van Gorkom on its head, and furthering the irony. In Time, the court held that Time’s board did not preclude Paramount from hostilely acquiring Time when it affected an acquisition of Warner. According to the consensus, Time’s board in fact precluded Paramount, so the Time court could not have meant what it wrote. As described in Part III, examining for the presence of preclusive action sometimes may enlighten the ultimate inquiry of reasonableness, but other times, an examination into preclusion proves misleading. In dicta, the Delaware Supreme Court has acknowledged that preclusive conduct may be reasonable. As the inquiry into preclusion has yielded misleading, if not ironic, results, and as the Delaware Supreme Court has indicated that preclusive action may be reasonable, the court should re-examine the utility of the preclusion inquiry as an outcome-determinative filtering device regarding the ultimate inquiry of reasonableness. In these foundational decisions of corporate law, the Delaware Supreme Court could not have meant what it wrote. Each section incorporates clarifying concepts for consideration, and Part IV briefly concludes.
{"title":"Unintentional Irony in Landmark Decisions of the Delaware Supreme Court Regarding Corporate Law","authors":"S. J. Cleveland","doi":"10.36639/mbelr.8.2.unintentional","DOIUrl":"https://doi.org/10.36639/mbelr.8.2.unintentional","url":null,"abstract":"Three landmark decisions of the Delaware Supreme Court exhibit unintentional irony: Beam v. Stewart, Smith v. Van Gorkom, and Paramount Communications Inc. v. Time Inc. In Beam, the court concluded that, regarding the decision of whether to seek remedy against Martha Stewart, her fellow directors would not have jeopardized their reputations for the minimal gain of continuing their business and personal relationships with her. Ironically, the court failed to acknowledge that Martha Stewart—in trading on material nonpublic information, which gave rise to the corporate claim against her—jeopardized her reputation (ultimately losing hundreds of millions of dollars and her freedom) for minimal gain (less than $50,000). Having failed to acknowledge that internal inconsistency and unintentional irony, the court offered no explanation why some directors would jeopardize their reputations for minimal gain, but others would not do so. Part I attempts to fill the void and suggests that Stewart suffered from cognitive biases, which would not have affected her fellow directors.\u0000\u0000In Van Gorkom, the court famously concluded that the plaintiff carried his burden of proving that the board was grossly negligent in informing itself when selling the corporation, although, during a multi-month period, no bidder stepped forward with a superior proposal. The irony of the court’s conclusion is virtually self-evident. Part II further discusses subsequent precedent, which suggests that, viewed in retrospect, the board could have carried its burden that it reasonably informed itself, turning the conclusion of Van Gorkom on its head, and furthering the irony.\u0000\u0000In Time, the court held that Time’s board did not preclude Paramount from hostilely acquiring Time when it affected an acquisition of Warner. According to the consensus, Time’s board in fact precluded Paramount, so the Time court could not have meant what it wrote. As described in Part III, examining for the presence of preclusive action sometimes may enlighten the ultimate inquiry of reasonableness, but other times, an examination into preclusion proves misleading. In dicta, the Delaware Supreme Court has acknowledged that preclusive conduct may be reasonable. As the inquiry into preclusion has yielded misleading, if not ironic, results, and as the Delaware Supreme Court has indicated that preclusive action may be reasonable, the court should re-examine the utility of the preclusion inquiry as an outcome-determinative filtering device regarding the ultimate inquiry of reasonableness.\u0000\u0000In these foundational decisions of corporate law, the Delaware Supreme Court could not have meant what it wrote. Each section incorporates clarifying concepts for consideration, and Part IV briefly concludes.","PeriodicalId":177599,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115130952","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}
Pub Date : 1900-01-01DOI: 10.36639/mbelr.7.2.institutional
Félix E. Mezzanotte, S. Fung
The conventional view in Hong Kong has been that institutional owners tend to be passive owners and that they do little to monitor the companies’ management. We investigated whether the presence of institutional owners in Hong Kong-listed companies was associated with greater monitoring of management through dissent voting by hand-collecting information for a sample (n= 96) of connected transaction proposals (“CT proposals”) and of their voting outcomes, as announced in the Stock Exchange of Hong Kong during the period from 2012–14. Our study shows that voting approval rates on CT proposals were lower (i.e. greater dissent voting) when institutional owners had at least 5 percent shareholdings and when the CT proposals were likely to expropriate or when the company holding the vote did not have a controlling shareholder. These findings support the view that the presence of institutional ownership in Hong Kong can be consistent with monitoring effects and, to that extent, with good governance.
{"title":"Do Institutional Owners Monitor? Evidence from Voting on Connected Transaction Proposals in Hong Kong-Listed Companies","authors":"Félix E. Mezzanotte, S. Fung","doi":"10.36639/mbelr.7.2.institutional","DOIUrl":"https://doi.org/10.36639/mbelr.7.2.institutional","url":null,"abstract":"The conventional view in Hong Kong has been that institutional owners tend to be passive owners and that they do little to monitor the companies’ management. We investigated whether the presence of institutional owners in Hong Kong-listed companies was associated with greater monitoring of management through dissent voting by hand-collecting information for a sample (n= 96) of connected transaction proposals (“CT proposals”) and of their voting outcomes, as announced in the Stock Exchange of Hong Kong during the period from 2012–14. Our study shows that voting approval rates on CT proposals were lower (i.e. greater dissent voting) when institutional owners had at least 5 percent shareholdings and when the CT proposals were likely to expropriate or when the company holding the vote did not have a controlling shareholder. These findings support the view that the presence of institutional ownership in Hong Kong can be consistent with monitoring effects and, to that extent, with good governance.","PeriodicalId":177599,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"98 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121561742","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}
Pub Date : 1900-01-01DOI: 10.36639/mbelr.10.2.rethinking
Samuel Shapiro
The MAC clause is perhaps the most important clause in contract law, giving acquirers the ability to terminate even the largest agreements in the face of an often vaguely defined “Material Adverse Change.” For decades, even though MAC clauses have been present in nearly every merger agreement, courts have almost universally refused to enforce them. But the Delaware Chancery Court’s 2018 decision in Akorn may finally change that. As the world deals with the economic uncertainty caused by COVID-19, courts may soon get more opportunities to decide whether or not they will follow Akorn’s lead and begin to allow companies to exit agreements. In this Article, I argue that they should.
{"title":"Rethinking MAC Clauses in the Time of Akorn, Boston Scientific, and COVID-19","authors":"Samuel Shapiro","doi":"10.36639/mbelr.10.2.rethinking","DOIUrl":"https://doi.org/10.36639/mbelr.10.2.rethinking","url":null,"abstract":"The MAC clause is perhaps the most important clause in contract law, giving acquirers the ability to terminate even the largest agreements in the face of an often vaguely defined “Material Adverse Change.” For decades, even though MAC clauses have been present in nearly every merger agreement, courts have almost universally refused to enforce them. But the Delaware Chancery Court’s 2018 decision in Akorn may finally change that. As the world deals with the economic uncertainty caused by COVID-19, courts may soon get more opportunities to decide whether or not they will follow Akorn’s lead and begin to allow companies to exit agreements. In this Article, I argue that they should.","PeriodicalId":177599,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122129192","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}
This Note will look at the role of four broad factors that correspond with the rise-and-fall cycles among leading international financial centers. The four factors are: trust in a financial center’s abilities; the central banking and monetary policy systems of the center’s home nation; the home nation’s landscape of financial policy and regulation; and the overall stability of the financial center itself. First, this Note will undertake a broad historical survey of the shifts in prominence from Amsterdam to London, from London to New York, and from New York back to London to define the scope of these factors through analyzing how they have manifested and evolved over time. In order to further understand the limits of these factors, this Note will also analyze two historical instances where two cities vied for the position of the leading international financial center, Paris versus London and Tokyo versus New York, and no corresponding shift occurred, despite the manifestation of some of the factors. In addition, to understand the role of politics in influencing these factors, this Note will also consider the shift between the financial centers of Frankfurt and Berlin during the nineteenth century. After defining the scope of the factors through this broad historical survey, this Note will analyze the presence of these factors in the modern international financial system in light of Brexit in order to assess their predictive capabilities. Lastly, this Note will consider the future relevance of international financial centers as a critical structure within the international financial system, and whether the factors might shed any light on the likelihood that emerging disruptive technologies might render international financial centers obsolete.
{"title":"The Rise-and-Fall of Leading International Financial Centers: Factors and Application","authors":"Adam L Church","doi":"10.36639/mbelr.7.2.rise","DOIUrl":"https://doi.org/10.36639/mbelr.7.2.rise","url":null,"abstract":"This Note will look at the role of four broad factors that correspond with the rise-and-fall cycles among leading international financial centers. The four factors are: trust in a financial center’s abilities; the central banking and monetary policy systems of the center’s home nation; the home nation’s landscape of financial policy and regulation; and the overall stability of the financial center itself. First, this Note will undertake a broad historical survey of the shifts in prominence from Amsterdam to London, from London to New York, and from New York back to London to define the scope of these factors through analyzing how they have manifested and evolved over time. In order to further understand the limits of these factors, this Note will also analyze two historical instances where two cities vied for the position of the leading international financial center, Paris versus London and Tokyo versus New York, and no corresponding shift occurred, despite the manifestation of some of the factors. In addition, to understand the role of politics in influencing these factors, this Note will also consider the shift between the financial centers of Frankfurt and Berlin during the nineteenth century. After defining the scope of the factors through this broad historical survey, this Note will analyze the presence of these factors in the modern international financial system in light of Brexit in order to assess their predictive capabilities. Lastly, this Note will consider the future relevance of international financial centers as a critical structure within the international financial system, and whether the factors might shed any light on the likelihood that emerging disruptive technologies might render international financial centers obsolete.","PeriodicalId":177599,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133527609","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}
Recently, Uber driver (and former Uber CEO) Travis Kalanick has been sued under antitrust laws. The plaintiffs argue that Mr. Kalanick and the other Uber drivers have engaged in a price fixing arrangement that violates §1 of the Sherman Act. The case, Meyer v. Uber (originally Meyer v. Kalanick), is still being litigated. This Comment will analyze each side’s potential arguments and will ultimately conclude that the court should find Uber drivers not guilty of a Sherman Act violation. This determination will be based on: the merits of the various arguments, how such a holding would fit within the history of antitrust law, and how it would set effective precedent for the future. Additionally, this Comment argues that Uber’s place in the sharing economy distinguishes it from previous antitrust violators the plaintiffs will likely analogize it to.
{"title":"How Meyer v. Uber Could Demonstrate That Uber and the Sharing Economy Fit into Antitrust Law","authors":"Nicholas Passaro","doi":"10.36639/mbelr.7.2.how","DOIUrl":"https://doi.org/10.36639/mbelr.7.2.how","url":null,"abstract":"Recently, Uber driver (and former Uber CEO) Travis Kalanick has been sued under antitrust laws. The plaintiffs argue that Mr. Kalanick and the other Uber drivers have engaged in a price fixing arrangement that violates §1 of the Sherman Act. The case, Meyer v. Uber (originally Meyer v. Kalanick), is still being litigated. This Comment will analyze each side’s potential arguments and will ultimately conclude that the court should find Uber drivers not guilty of a Sherman Act violation. This determination will be based on: the merits of the various arguments, how such a holding would fit within the history of antitrust law, and how it would set effective precedent for the future. Additionally, this Comment argues that Uber’s place in the sharing economy distinguishes it from previous antitrust violators the plaintiffs will likely analogize it to.","PeriodicalId":177599,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"112 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132056188","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}
Pub Date : 1900-01-01DOI: 10.36639/mbelr.8.1.solely
Dustin Womack
Rather than adding to the voluminous literature assessing the necessity of benefit corporations themselves or the possible liability of their directors, this Note concerns itself only with how benefit corporations will impact the fiduciary duty of care analysis for the directors of traditional corporations constituted in the state of Delaware. Further, this Note is only concerned with liability arising from claims alleging that a day-to-day directorial decision resulted in a breach of the duty of care. As such, this Note does not address any other potential liability predicated on other situations or duties. Finally, this Note provides general background information about the relevant legal issues discussed, but it assumes that the reader has a working familiarity with the general features of a corporate entity and the mechanics of how litigation might be brought against it.
{"title":"Solely Beneficial: How Benefit Corporations May Change the Duty of Care Analysis for Traditional Corporate Directors in Delaware","authors":"Dustin Womack","doi":"10.36639/mbelr.8.1.solely","DOIUrl":"https://doi.org/10.36639/mbelr.8.1.solely","url":null,"abstract":"Rather than adding to the voluminous literature assessing the necessity of benefit corporations themselves or the possible liability of their directors, this Note concerns itself only with how benefit corporations will impact the fiduciary duty of care analysis for the directors of traditional corporations constituted in the state of Delaware. Further, this Note is only concerned with liability arising from claims alleging that a day-to-day directorial decision resulted in a breach of the duty of care. As such, this Note does not address any other potential liability predicated on other situations or duties. Finally, this Note provides general background information about the relevant legal issues discussed, but it assumes that the reader has a working familiarity with the general features of a corporate entity and the mechanics of how litigation might be brought against it.","PeriodicalId":177599,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123470044","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}
Pub Date : 1900-01-01DOI: 10.36639/mbelr.8.1.elephant
K. Mcneil, Keith Johnson
Short-termism in corporate decision-making is as problematic for long-term investors as relying on a three-mile radar on a supertanker. It is totally inadequate for handling the long-term risks and opportunities faced by the modern corporation. Yet recent empirical research shows that up to 85% of the S&P 1500 have no long-term planning. This is costing pension funds and other long-term investors dearly. For instance, the small minority of companies that do long-term planning and risk management had a long-term profitability that was 81% higher than their peers during the 2001–2014 period—with less stock volatility that costs investors dearly as well. This corporate short-termism mindset is even more troubling given that at least half of the value of the companies in the S&P 1500 is generated by expectations for realization of future value. Long-term investors therefore face a long-term expectations pipeline of hoped-for returns without a plan by corporations to back it up. The tragic result: this short-termism mindset appears to have a substantial depressing impact on long-term market returns while increasing long-term risk exposure. Both have contributed to the significantly underfunded status of many pension funds today. Delaware courts, the primary referees of corporate director fiduciary duties in the United States, are so frustrated with the persistent effects of short-term pressures—including corporate fraud and compliance breaches—that they are actively encouraging investors to bring the right cases to help change the rules. This Article examines the effects of short-termism and the Delaware judiciary’s responses to it. It then shows how existing Delaware law could be extended to address the underlying causes of corporate short-term bias, rather than merely imposing punishment on the symptoms.
{"title":"The Elephant in the Room: Helping Delaware Courts Develop Law to End Systemic Short-Term Bias in Corporate Decision-Making","authors":"K. Mcneil, Keith Johnson","doi":"10.36639/mbelr.8.1.elephant","DOIUrl":"https://doi.org/10.36639/mbelr.8.1.elephant","url":null,"abstract":"Short-termism in corporate decision-making is as problematic for long-term investors as relying on a three-mile radar on a supertanker. It is totally inadequate for handling the long-term risks and opportunities faced by the modern corporation. Yet recent empirical research shows that up to 85% of the S&P 1500 have no long-term planning. This is costing pension funds and other long-term investors dearly. For instance, the small minority of companies that do long-term planning and risk management had a long-term profitability that was 81% higher than their peers during the 2001–2014 period—with less stock volatility that costs investors dearly as well. This corporate short-termism mindset is even more troubling given that at least half of the value of the companies in the S&P 1500 is generated by expectations for realization of future value. Long-term investors therefore face a long-term expectations pipeline of hoped-for returns without a plan by corporations to back it up. The tragic result: this short-termism mindset appears to have a substantial depressing impact on long-term market returns while increasing long-term risk exposure. Both have contributed to the significantly underfunded status of many pension funds today.\u0000\u0000Delaware courts, the primary referees of corporate director fiduciary duties in the United States, are so frustrated with the persistent effects of short-term pressures—including corporate fraud and compliance breaches—that they are actively encouraging investors to bring the right cases to help change the rules. This Article examines the effects of short-termism and the Delaware judiciary’s responses to it. It then shows how existing Delaware law could be extended to address the underlying causes of corporate short-term bias, rather than merely imposing punishment on the symptoms.","PeriodicalId":177599,"journal":{"name":"Michigan Business & Entrepreneurial Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129408558","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}
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