William McGuiness, Peter L. Simmons, Robert C. Schwenkel and John E. Sorkin
The purpose of this paper is to explain the implications of a June 11, 2008 decision by the US District Court for the Southern District of New York in CSX Corp. v. The Children's…
Abstract
Purpose
The purpose of this paper is to explain the implications of a June 11, 2008 decision by the US District Court for the Southern District of New York in CSX Corp. v. The Children's Investment Fund Management (UK) LLP concerning beneficial ownership and reporting obligations under Section 13(d) of the Securities Exchange Act of 1934 for long parties to cash‐settled total return equity swaps.
Design/methodology/approach
The paper summarizes the decision, discusses the court's analysis as written by Judge Lewis A. Kaplan, notes the court's limitation of its ruling to the facts of the case, explains why two funds that “compare notes” may be considered a group, discusses the permanent injunction against the defendants enjoining them from future violations of Section 13(d), and analyzes the implications of the judge's decision.
Findings
A new decision by the federal district court in New York creates uncertainty regarding whether the long party to a cash‐settled total return equity swap will be deemed to beneficially own the publicly traded reference security for purposes of Section 13(d) of the Securities Exchange Act of 1934. Holders of cash‐settled total return swaps have historically relied on the absence of the legal right to vote or dispose of the reference security as a basis not to file a 13D with respect to the shares referenced in those swap contracts. The new decision casts doubt on that reasoning, and finds that an investor that consciously structured its swap contracts to try to end‐run its otherwise applicable reporting obligations was deemed to beneficially own the shares subject to the swaps, and accordingly had violated Section 13(d) by failing to file a Schedule 13D in the required time.
Practical implications
The ruling is important for financial institutions and investors who deal in derivatives such as equity swaps and who must determine whether and when reporting under Section 13(d) is required.
Originality/value
The paper is an analysis and provides guidance by experienced securities lawyers.
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John E. Sorkin, Abigail Pickering Bomba, Steven Epstein, Jessica Forbes, Peter S. Golden, Philip Richter, Robert C. Schwenkel, David Shine, Arthur Fleischer and Gail Weinstein
To provide an overview of the guidance for proxy firms and investment advisers included in the Staff Legal Bulletin released this year by the Securities and Exchange Commission…
Abstract
Purpose
To provide an overview of the guidance for proxy firms and investment advisers included in the Staff Legal Bulletin released this year by the Securities and Exchange Commission (SEC) after its four-year comprehensive review of the proxy system.
Design/methodology/approach
Discusses briefly the context in which the SEC’s review was conducted; the general themes of the guidance provided; the most notable aspects of the guidance; and the matters that were expected to be, but were not, addressed by the SEC.
Findings
The guidance does not go as far in regulating proxy advisory firms as many had anticipated it would. The key obligations specified in the guidance are imposed on the investment advisers who engage the proxy firms. The responsibilities, policies and procedures mandated do not change the fundamental paradigm that has supported the influence of proxy firms – that is, investment advisers continue to be permitted to fulfill their duty to vote client shares in a “conflict-free manner” by voting based on the recommendations of independent third parties, and continue to be exempted from the rules that generally apply to persons who solicit votes or make proxy recommendations.
Practical implications
The SEC staff states in the Bulletin that it expects that proxy firms and investment advisers will conform to the obligations imposed in the Bulletin “promptly, but in any event in advance of [the 2015] proxy season.”
Originality/value
Practical guidance from experienced M&A lawyers.
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Abigail Pickering Bomba, Steven Epstein, Philip Richter, David Shine, John E. Sorkin and Gail Weinstein
To inform on recent developments in shareholder activism, a phenomenon well-documented in North America and Europe and now spreading to Latin America, and summarize the key…
Abstract
Purpose
To inform on recent developments in shareholder activism, a phenomenon well-documented in North America and Europe and now spreading to Latin America, and summarize the key considerations for corporate boards.
Design/methodology/approach
The article discusses a recent development involving Cartica Capital, a USA hedge fund and minority shareholder in CorpBanca, a Chilean bank pursuing a merger with Itau Unibanco Holding SA, Latin America’s biggest bank by market value, Cartica.
Findings
Shareholder activism will continue to be an expanding global phenomenon.
Practical implications
Boards must continue to plan accordingly when structuring a strategic transaction, both in and outside the USA market.
Originality/value
Practical overview of recent developments in shareholder activism with a review of the key considerations for practitioners.
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On September 15, 2008, Lehman Brothers filed for bankruptcy and nearly caused a meltdown of the financial system. This article looks at the situation before Lehman went bankrupt…
Abstract
On September 15, 2008, Lehman Brothers filed for bankruptcy and nearly caused a meltdown of the financial system. This article looks at the situation before Lehman went bankrupt and how this event came to trigger a financial panic during the fall of 2008 and early 2009. Two key ideas inform the analysis. The first is that what triggers financial panics are typically hidden losses. The second is that confidence plays a key role in financial panics and that confidence can be conceptualized as a belief that action can be based on proxy signs, rather than on direct information about the situation itself.
Industry 4.0 or the Fourth Industrial Revolution is characterized by robotic process automation and machine-to-machine communications. Since computers, machines, and robots share…
Abstract
Industry 4.0 or the Fourth Industrial Revolution is characterized by robotic process automation and machine-to-machine communications. Since computers, machines, and robots share information and knowledge more swiftly and effectively than humans, the question is what human beings' role could be in the era of the Internet-of-Thing. The answer would be beneficial to institutions for higher education to anticipate. The literature reveals a gap between the intended learning outcomes in higher education institutions and the needs of employers in Industry 4.0. Evidence is shown that higher education mainly focused on knowledge (know-what) and theory-based (know-why) intended learning outcomes. However, competent professionals require knowledge (know-what), understanding of the theory (know-why), professional (know-how) and interpersonal skills (know-how and know-who), and need intrapersonal traits such as creativeness, persistence, a result-driven attitude et cetera. Therefore, intended learning outcomes in higher education should also develop interpersonal skills and intrapersonal characteristics. Yet, personality development is a personal effort vital for contemporary challenges. The history of the preceding industrial revolutions showed the drawbacks of personality and character education; politicians have abused it to control societies in the 19th and 20th centuries. In the discussion section, the institutions for higher education are alerted that the societal challenges of the twenty-first century could lead to a form of personality education that is not in the student's interest and would violate Isaiah Berlin's philosophical concept of ‘positive freedom’.
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David Norman Smith and Eric Allen Hanley
Controversy has long swirled over the claim that Donald Trump's base has deeply rooted authoritarian tendencies, but Trump himself seems to have few doubts. Asked whether his…
Abstract
Controversy has long swirled over the claim that Donald Trump's base has deeply rooted authoritarian tendencies, but Trump himself seems to have few doubts. Asked whether his stated wish to be dictator “on day one” of second term in office would repel voters, Trump said “I think a lot of people like it.” It is one of his invariable talking points that 74 million voters supported him in 2020, and he remains the unrivaled leader of the Republican Party, even as his rhetoric escalates to levels that cautious observers now routinely call fascistic.
Is Trump right that many people “like” his talk of dictatorship? If so, what does that mean empirically? Part of the answer to these questions was apparent early, in the results of the 2016 American National Election Study (ANES), which included survey questions that we had proposed which we drew from the aptly-named “Right-Wing Authoritarianism” scale. Posed to voters in 2012–2013 and again in 2016, those questions elicited striking responses.
In this chapter, we revisit those responses. We begin by exploring Trump's escalating anti-democratic rhetoric in the light of themes drawn from Max Weber and Theodor W. Adorno. We follow this with the text of the 2017 conference paper in which we first reported that 75% of Trump's voters supported him enthusiastically, mainly because they shared his prejudices, not because they were hurting economically. They hoped to “get rid” of troublemakers and “crush evil.” That wish, as we show in our conclusion, remains central to Trump's appeal.
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Retreat of the Critics. The publication, last month, of a series of six main articles on Work Study with an introductory leader in The Financial Times was yet further proof of the…
Abstract
Retreat of the Critics. The publication, last month, of a series of six main articles on Work Study with an introductory leader in The Financial Times was yet further proof of the increasing interest and importance accorded by the nation at large to this decisive “tool of management” which has been, until comparatively recent years, the dream of a few, forward‐looking pioneers. During the past year or two, however, increasing references have been made to Work Study on the radio and television, and in the daily press. As The Financial Times points out: “The critical voices seem now to be growing fainter. For example, no less than 800 industrialists from every part of the country attended the recent conference on Work Study at Harrogate, organised by the British Institute of Management.”
Jeroen Veldman and Hugh Willmott
We explore the significance of social ontology and its capacity to inform the specification of organizational status, architecture and capacities. We consider how different…
Abstract
We explore the significance of social ontology and its capacity to inform the specification of organizational status, architecture and capacities. We consider how different conceptions of social ontology are critical for explicating a range of epistemological and socio-economic questions concerning organizations and develop a research agenda oriented to studying these issues from the perspective of management and organization studies.