Why do firms pay dividends? If they didn't their asset and capital structures would eventually become untenable as the earnings of successful firms outstrip their investment opportunities. Had they not paid dividends, the 25 largest long-standing 2002 dividend payers would have cash holdings of $1.8 trillion (51% of total assets), up from $160 billion (6% of assets), and $1.2 trillion in excess of their collective $600 billion in long-term debt. Their dividend payments prevented significant agency problems since the retention of earnings would have given managers command over an additional $1.6 trillion without access to better investment opportunities and with no additional monitoring. This logic suggests that firms with relatively high amounts of earned equity (retained earnings) are especially likely to pay dividends. Consistent with this view, the fraction of publicly traded industrial firms that pays dividends is high when the ratio of earned equity to total equity (total assets) is high, and falls with declines in this ratio, becoming near zero when a firm has little or no earned equity. We observe a highly significant relation between the decision to pay dividends and the ratio of earned equity to total equity or total assets,controlling for firm size, profitability, growth, leverage, cash balances, and dividend history. In our regressions, earned equity has an economically more important impact than does profitability or growth. Our evidence is consistent with the hypothesis that firms pay dividends to mitigate agency problems.
{"title":"Dividend Policy, Agency Costs, and Earned Equity","authors":"H. DeAngelo, L. Deangelo, René M. Stulz","doi":"10.2139/ssrn.558747","DOIUrl":"https://doi.org/10.2139/ssrn.558747","url":null,"abstract":"Why do firms pay dividends? If they didn't their asset and capital structures would eventually become untenable as the earnings of successful firms outstrip their investment opportunities. Had they not paid dividends, the 25 largest long-standing 2002 dividend payers would have cash holdings of $1.8 trillion (51% of total assets), up from $160 billion (6% of assets), and $1.2 trillion in excess of their collective $600 billion in long-term debt. Their dividend payments prevented significant agency problems since the retention of earnings would have given managers command over an additional $1.6 trillion without access to better investment opportunities and with no additional monitoring. This logic suggests that firms with relatively high amounts of earned equity (retained earnings) are especially likely to pay dividends. Consistent with this view, the fraction of publicly traded industrial firms that pays dividends is high when the ratio of earned equity to total equity (total assets) is high, and falls with declines in this ratio, becoming near zero when a firm has little or no earned equity. We observe a highly significant relation between the decision to pay dividends and the ratio of earned equity to total equity or total assets,controlling for firm size, profitability, growth, leverage, cash balances, and dividend history. In our regressions, earned equity has an economically more important impact than does profitability or growth. Our evidence is consistent with the hypothesis that firms pay dividends to mitigate agency problems.","PeriodicalId":336554,"journal":{"name":"Corporate Law: Securities Law","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122005516","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}
Institutions are not only created and built, but also — and especially — need to be learnt. It is a process which takes place in all economies, but acquires a special importance in less advanced countries. Not only theoretical arguments, but also the practical experience over the past 15 years demonstrate that faster economic growth — and hence also, more broadly, socio-economic development — is attained by those countries which take greater care to foster the institutional reinforcement of market economy. However, progress in market-economy institution building is not in itself sufficient to ensure sustained growth. Another indispensable component is an appropriately designed and implemented economic policy which must not confuse the means with the aims.
{"title":"Institutions, Policies and Growth","authors":"G. Kolodko","doi":"10.2139/ssrn.590848","DOIUrl":"https://doi.org/10.2139/ssrn.590848","url":null,"abstract":"Institutions are not only created and built, but also — and especially — need to be learnt. It is a process which takes place in all economies, but acquires a special importance in less advanced countries. Not only theoretical arguments, but also the practical experience over the past 15 years demonstrate that faster economic growth — and hence also, more broadly, socio-economic development — is attained by those countries which take greater care to foster the institutional reinforcement of market economy. However, progress in market-economy institution building is not in itself sufficient to ensure sustained growth. Another indispensable component is an appropriately designed and implemented economic policy which must not confuse the means with the aims.","PeriodicalId":336554,"journal":{"name":"Corporate Law: Securities Law","volume":"328 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116784703","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}
We empirically investigate the effects of the adoption of Regulation Fair Disclosure ( Reg FD') by the U.S. Securities and Exchange Commission in October 2000. This rule was intended to stop the practice of selective disclosure,' in which companies give material information only to a few analysts and institutional investors prior to disclosing it publicly. We find that the adoption of Reg FD caused a significant reallocation of information-producing resources, resulting in a welfare loss for small firms, which now face a higher cost of capital. The loss of the selective disclosure' channel for information flows could not be compensated for via other information transmission channels. This effect was more pronounced for firms communicating complex information and, consistent with the investor recognition hypothesis, for those losing analyst coverage. Moreover, we find no significant relationship of the different responses with litigation risks and agency costs. Our results suggest that Reg FD had unintended consequences and that information' in financial markets may be more complicated than current finance theory admits.
{"title":"SEC Regulation Fair Disclosure, Information, and the Cost of Capital","authors":"Armando Gomes, Gary B. Gorton, Leonardo Madureira","doi":"10.2139/ssrn.529162","DOIUrl":"https://doi.org/10.2139/ssrn.529162","url":null,"abstract":"We empirically investigate the effects of the adoption of Regulation Fair Disclosure ( Reg FD') by the U.S. Securities and Exchange Commission in October 2000. This rule was intended to stop the practice of selective disclosure,' in which companies give material information only to a few analysts and institutional investors prior to disclosing it publicly. We find that the adoption of Reg FD caused a significant reallocation of information-producing resources, resulting in a welfare loss for small firms, which now face a higher cost of capital. The loss of the selective disclosure' channel for information flows could not be compensated for via other information transmission channels. This effect was more pronounced for firms communicating complex information and, consistent with the investor recognition hypothesis, for those losing analyst coverage. Moreover, we find no significant relationship of the different responses with litigation risks and agency costs. Our results suggest that Reg FD had unintended consequences and that information' in financial markets may be more complicated than current finance theory admits.","PeriodicalId":336554,"journal":{"name":"Corporate Law: Securities Law","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130149355","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}
Electronic limit-order trading systems have been sweeping securities exchanges around the world since the last decade. This paper studies a case of transition, namely, a group of moderately liquid stocks that started trading on SETS of the London Stock Exchange. The evidence reveals that the liquidity of those stocks substantially dropped after the introduction of the limit order book despite the presence of a dealer network. The transition provides an intriguing example that a hybrid market where a limit order book and dealers co-exist may not perform as well as a dealership market.
{"title":"The Market Quality of Moderately Liquid Securities in a Hybrid Market: The Evidence","authors":"Hung-Neng Lai","doi":"10.2139/ssrn.557099","DOIUrl":"https://doi.org/10.2139/ssrn.557099","url":null,"abstract":"Electronic limit-order trading systems have been sweeping securities exchanges around the world since the last decade. This paper studies a case of transition, namely, a group of moderately liquid stocks that started trading on SETS of the London Stock Exchange. The evidence reveals that the liquidity of those stocks substantially dropped after the introduction of the limit order book despite the presence of a dealer network. The transition provides an intriguing example that a hybrid market where a limit order book and dealers co-exist may not perform as well as a dealership market.","PeriodicalId":336554,"journal":{"name":"Corporate Law: Securities Law","volume":"62 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132197878","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}
Managerial forecast disclosure has gained increasing interest. Besides voluntary publication, managers are more and more obliged to disclose forecasts by recent accounting regulation. This acknowledges the common proposition that forecasts were exceptionally relevant and decision useful information for investors. But it neglects the problems of credibility arising from the non-verifiable nature of forecasts. My paper analytically investigates the credibility of managerial forecast disclosure introducing a game theoretic perspective by extracting robust implications from disclosure models. The analysis is two-fold, aiming first at a non-regulated environment and second at an environment with audit or liability systems. The results are alarming: Without enforcement, forecast credibility is linked to very restrictive conditions. In particular, unfavourable forecasts, e.g. going concern uncertainties, will be withheld. Different audit and litigation systems may increase or may lessen, but not eliminate the deficits. Upon the results of my analysis, I derive general regulative implications on enforcement mechanisms, managerial information endowment, and disclosure. These may assist but cannot assure the credibility of managerial forecast disclosure. In conclusion, whatever regulatory steps are taken, the value of forecast publication currently discussed in the context of voluntary prospective value reporting and mandatory risk reporting appears to be overestimated.
{"title":"Credibility of Managerial Forecast Disclosure - Game Theory and Regulative Implications","authors":"M. Dobler","doi":"10.2139/ssrn.540943","DOIUrl":"https://doi.org/10.2139/ssrn.540943","url":null,"abstract":"Managerial forecast disclosure has gained increasing interest. Besides voluntary publication, managers are more and more obliged to disclose forecasts by recent accounting regulation. This acknowledges the common proposition that forecasts were exceptionally relevant and decision useful information for investors. But it neglects the problems of credibility arising from the non-verifiable nature of forecasts. My paper analytically investigates the credibility of managerial forecast disclosure introducing a game theoretic perspective by extracting robust implications from disclosure models. The analysis is two-fold, aiming first at a non-regulated environment and second at an environment with audit or liability systems. The results are alarming: Without enforcement, forecast credibility is linked to very restrictive conditions. In particular, unfavourable forecasts, e.g. going concern uncertainties, will be withheld. Different audit and litigation systems may increase or may lessen, but not eliminate the deficits. Upon the results of my analysis, I derive general regulative implications on enforcement mechanisms, managerial information endowment, and disclosure. These may assist but cannot assure the credibility of managerial forecast disclosure. In conclusion, whatever regulatory steps are taken, the value of forecast publication currently discussed in the context of voluntary prospective value reporting and mandatory risk reporting appears to be overestimated.","PeriodicalId":336554,"journal":{"name":"Corporate Law: Securities Law","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121582847","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}
Audit committees of corporate boards of directors are central to corporate governance for many corporations. Their effectiveness in supervising financial managers and overseeing the financial reporting process is important to promote reliable financial statements. This centrality suggests that it is likewise important for investors and others to have a basis for justifiable confidence in audit committee effectiveness. At present, there is no such mechanism. This Article explains why, considers a way states can provide it and assesses as low the likelihood that states will do so. In the swirling corporate governance reforms led by SOX, the SEC, SROs and PCAOB, states are playing minor roles at best. State absence leaves missing a potentially critical link in the evolving US corporate governance circle. The circle is drawn as follows: state corporation law charges boards of directors with managing corporations and authorizes board committees; SOX charges audit committees with certain tasks, including supervising external auditors; the SEC and SROs require audit committee characteristics like independence and compel disclosure; and PCAOB now requires external auditors to evaluate audit committee effectiveness. This last step could close the circle except that auditors performing this evaluation generate conflicts with state corporation law, conflicts between auditors and audit committees and face other limitations. These conflicts and limitations can be neutralized in an audit committee evaluation exercise conducted by newly-created state agencies staffed with experts in state corporation law such as retired lawyers and judges or academics. These newly-created state agencies could thus square the newly-forming corporate governance circle. The paper presents and evaluates this concept. It reviews the central role audit committees play in corporate governance; considers existing mechanisms that promote committee effectiveness - state fiduciary duties, SEC-SRO disclosure rules, and traditional auditing - noting the limits of each. It considers PCAOB's new auditing standards requiring auditors to evaluate audit committee effectiveness, showing both the perceived need for such an evaluation and inherent limits on auditor capabilities to render this evaluation effectively. This review leads to state agencies as possible providers of this evaluation and certification. The paper sketches the outlines for creating and running such state agencies. The paper then assesses the likelihood that this concept would be accepted by various corporate constituents. Likely supporters include users and producers of financial information and the auditing and legal professions. More uncertain is SEC support, given a new model of corporate-governance production in which the SEC uses various instrumentalities, like SROs and PCAOB, to federalize corporate governance. State receptivity depends in part upon and is evaluated according to rival corporation law production models (
{"title":"A New Product for the State Corporation Law Market: Audit Committee Certifications","authors":"L. Cunningham","doi":"10.15779/Z38GG4T","DOIUrl":"https://doi.org/10.15779/Z38GG4T","url":null,"abstract":"Audit committees of corporate boards of directors are central to corporate governance for many corporations. Their effectiveness in supervising financial managers and overseeing the financial reporting process is important to promote reliable financial statements. This centrality suggests that it is likewise important for investors and others to have a basis for justifiable confidence in audit committee effectiveness. At present, there is no such mechanism. This Article explains why, considers a way states can provide it and assesses as low the likelihood that states will do so. In the swirling corporate governance reforms led by SOX, the SEC, SROs and PCAOB, states are playing minor roles at best. State absence leaves missing a potentially critical link in the evolving US corporate governance circle. The circle is drawn as follows: state corporation law charges boards of directors with managing corporations and authorizes board committees; SOX charges audit committees with certain tasks, including supervising external auditors; the SEC and SROs require audit committee characteristics like independence and compel disclosure; and PCAOB now requires external auditors to evaluate audit committee effectiveness. This last step could close the circle except that auditors performing this evaluation generate conflicts with state corporation law, conflicts between auditors and audit committees and face other limitations. These conflicts and limitations can be neutralized in an audit committee evaluation exercise conducted by newly-created state agencies staffed with experts in state corporation law such as retired lawyers and judges or academics. These newly-created state agencies could thus square the newly-forming corporate governance circle. The paper presents and evaluates this concept. It reviews the central role audit committees play in corporate governance; considers existing mechanisms that promote committee effectiveness - state fiduciary duties, SEC-SRO disclosure rules, and traditional auditing - noting the limits of each. It considers PCAOB's new auditing standards requiring auditors to evaluate audit committee effectiveness, showing both the perceived need for such an evaluation and inherent limits on auditor capabilities to render this evaluation effectively. This review leads to state agencies as possible providers of this evaluation and certification. The paper sketches the outlines for creating and running such state agencies. The paper then assesses the likelihood that this concept would be accepted by various corporate constituents. Likely supporters include users and producers of financial information and the auditing and legal professions. More uncertain is SEC support, given a new model of corporate-governance production in which the SEC uses various instrumentalities, like SROs and PCAOB, to federalize corporate governance. State receptivity depends in part upon and is evaluated according to rival corporation law production models (","PeriodicalId":336554,"journal":{"name":"Corporate Law: Securities Law","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126806893","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}
States follow a number of different approaches to lawsuits alleging breach of contract or tort to value interests that have fluctuating values. This article examines one context where the factors that have produced the variation among jurisdictions are enhanced: breach of an obligation to register securities under the 1933 Act. A review of the pertinent authority identifies assorted miscues-approaches to valuation that are internally inconsistent, violate the weak form of the Efficient Capital Markets Hypothesis or founder for want of an adequately textured principle guiding damage computation. By referencing the component costs associated with creating synthetic registration rights, this article develops a textured principle for valuing breach of registration rights. As part of developing that damage measure, this article examines principles for computing compensatory prejudgement interest. The most thorough prior analysis in legal scholarship argues prejudgement interest should be at the defendant's cost of funds. This article demonstrates, however, that approach is inadequate, because it can shift value from shareholders of a corporate plaintiff to its creditors.
{"title":"Valuing 1933 Act Registration Rights","authors":"R. R. Barondes","doi":"10.2139/SSRN.481984","DOIUrl":"https://doi.org/10.2139/SSRN.481984","url":null,"abstract":"States follow a number of different approaches to lawsuits alleging breach of contract or tort to value interests that have fluctuating values. This article examines one context where the factors that have produced the variation among jurisdictions are enhanced: breach of an obligation to register securities under the 1933 Act. A review of the pertinent authority identifies assorted miscues-approaches to valuation that are internally inconsistent, violate the weak form of the Efficient Capital Markets Hypothesis or founder for want of an adequately textured principle guiding damage computation. By referencing the component costs associated with creating synthetic registration rights, this article develops a textured principle for valuing breach of registration rights. As part of developing that damage measure, this article examines principles for computing compensatory prejudgement interest. The most thorough prior analysis in legal scholarship argues prejudgement interest should be at the defendant's cost of funds. This article demonstrates, however, that approach is inadequate, because it can shift value from shareholders of a corporate plaintiff to its creditors.","PeriodicalId":336554,"journal":{"name":"Corporate Law: Securities Law","volume":"125 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123281321","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 paper gives an international perspective all over Sarbanes-Oxley starting from the causes of this "Twister" in the U.S. securities regulation with a strapping international impact. Every natural phenomenon such as a Twister raises out three important questions: 1) Why does it come? 2) How does it come? 3) Where does it go? On this basis, the WHW approach is the key of analysis pursued in this paper and that is summarized in the words: origin, materiality & impact on the EU.
{"title":"The Sarbanes-Oxley Twister: Origin, Materiality & Impact on EU","authors":"D. Moscato","doi":"10.2139/SSRN.474142","DOIUrl":"https://doi.org/10.2139/SSRN.474142","url":null,"abstract":"This paper gives an international perspective all over Sarbanes-Oxley starting from the causes of this \"Twister\" in the U.S. securities regulation with a strapping international impact. Every natural phenomenon such as a Twister raises out three important questions: 1) Why does it come? 2) How does it come? 3) Where does it go? On this basis, the WHW approach is the key of analysis pursued in this paper and that is summarized in the words: origin, materiality & impact on the EU.","PeriodicalId":336554,"journal":{"name":"Corporate Law: Securities Law","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114281146","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}
Markets for debt securities exist in a comprehensive way in no Asian economy other than Japan, even though short or medium-term bonds have been issued in almost all and Asian borrowers are established (though not prolific) international issuers. The markets provide no more than a simple borrowing medium for governments, banks and some companies, while investor activity is closely correlated with banking sector credit creation. Above all, the region's unfinished markets provide no guard against crisis or contagion, nor act as a balance to banking systems that are susceptible to distortion and event risk. Insufficient effort has been made to encourage activity by institutional investors. This paper is concerned with markets for tradable debt securities; and with the value and appropriateness of structured finance techniques to expand general usage of Asia's debt markets. The paper examines the condition of the domestic and offshore debt capital markets for Asia-Pacific risk. It traces common patterns of development among the established and nascent public debt securities markets in the region, and looks at the dynamics that will affect these markets in the medium term. Last, it seeks to identify whether Asian markets can be made to accommodate continuous issuing and trading activity typical of advanced economies, and to consider the associated advantages and considerations.
{"title":"Asia's Debt Capital Markets: Appraisal and Agenda for Policy Reform","authors":"P. Lejot, D. Arner, Qiao Liu, M. Chan","doi":"10.2139/ssrn.1009115","DOIUrl":"https://doi.org/10.2139/ssrn.1009115","url":null,"abstract":"Markets for debt securities exist in a comprehensive way in no Asian economy other than Japan, even though short or medium-term bonds have been issued in almost all and Asian borrowers are established (though not prolific) international issuers. The markets provide no more than a simple borrowing medium for governments, banks and some companies, while investor activity is closely correlated with banking sector credit creation. Above all, the region's unfinished markets provide no guard against crisis or contagion, nor act as a balance to banking systems that are susceptible to distortion and event risk. Insufficient effort has been made to encourage activity by institutional investors. This paper is concerned with markets for tradable debt securities; and with the value and appropriateness of structured finance techniques to expand general usage of Asia's debt markets. The paper examines the condition of the domestic and offshore debt capital markets for Asia-Pacific risk. It traces common patterns of development among the established and nascent public debt securities markets in the region, and looks at the dynamics that will affect these markets in the medium term. Last, it seeks to identify whether Asian markets can be made to accommodate continuous issuing and trading activity typical of advanced economies, and to consider the associated advantages and considerations.","PeriodicalId":336554,"journal":{"name":"Corporate Law: Securities Law","volume":"192 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115247742","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}
Recent legislation - Section 10A of the Securities Exchange Act of 1934 for auditors and Section 307 of the Sarbanes-Oxley Act for lawyers - has imposed on corporate outsiders certain duties to monitor unlawful activity within a corporation, and to report that activity to designated corporate actors. It is generally understood that the monitoring obligations of lawyers and auditors extend to corporate activity which might constitute a violation of federal securities law and state fiduciary duty standards. But do the monitoring and reporting obligations extend to unlawful activities beyond the securities laws - for example to violations of the laws prohibiting racial, religious, ethnic, age and sex discrimination? This article suggests that a strong set of arguments exist to support the answer - yes. The article first demonstrates that the monitoring rules create a broad obligation to detect and report that extends to any violation of law that could have a direct or indirect material effect on the financial condition of the corporation. The article then suggests that the nature of the detection and reporting obligation is active - requiring auditors and lawyers to implement procedures for detecting violations. The failure to comply with the detect and report obligations can contribute, under certain circumstances, to auditor or lawyer liability as a principal under the securities laws, to liability as a principal under the discrimination laws, and to greater exposure to discovery from private plaintiffs. The article ends with an extended hypothetical, involving outside counsel, auditors and a client corporation engaging in potentially discriminatory conduct, in which the insights developed in the article are applied.
{"title":"The Duty to Monitor: Emerging Obligations of Outside Lawyers and Auditors to Detect and Report Corporate Wrongdoing Beyond the Securities Laws","authors":"L. Backer","doi":"10.2139/ssrn.436461","DOIUrl":"https://doi.org/10.2139/ssrn.436461","url":null,"abstract":"Recent legislation - Section 10A of the Securities Exchange Act of 1934 for auditors and Section 307 of the Sarbanes-Oxley Act for lawyers - has imposed on corporate outsiders certain duties to monitor unlawful activity within a corporation, and to report that activity to designated corporate actors. It is generally understood that the monitoring obligations of lawyers and auditors extend to corporate activity which might constitute a violation of federal securities law and state fiduciary duty standards. But do the monitoring and reporting obligations extend to unlawful activities beyond the securities laws - for example to violations of the laws prohibiting racial, religious, ethnic, age and sex discrimination? This article suggests that a strong set of arguments exist to support the answer - yes. The article first demonstrates that the monitoring rules create a broad obligation to detect and report that extends to any violation of law that could have a direct or indirect material effect on the financial condition of the corporation. The article then suggests that the nature of the detection and reporting obligation is active - requiring auditors and lawyers to implement procedures for detecting violations. The failure to comply with the detect and report obligations can contribute, under certain circumstances, to auditor or lawyer liability as a principal under the securities laws, to liability as a principal under the discrimination laws, and to greater exposure to discovery from private plaintiffs. The article ends with an extended hypothetical, involving outside counsel, auditors and a client corporation engaging in potentially discriminatory conduct, in which the insights developed in the article are applied.","PeriodicalId":336554,"journal":{"name":"Corporate Law: Securities Law","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2003-09-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116415392","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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