In the press and popular blogs, there appeared several goodsummaries ofthe bizarre situation now surrounding proxy access after the The United States Court of Appeals for the District of Columbia Circuit took a chainsaw to the SEC's new proxy access rule. At present, it is entirely unclear whether the SEC will appeal the harsh ruling (asI think itshould), or whether it will give up temporarily or forever.
Category: Law
US Court Strikes Down Proxy Access – Harvard Law Forum Comments by Adam Emmerich and Nicholas Benes
In an opinion issuedon July 22in the challenge brought by the Business Roundtable and U.S. Chamber of Commerce to the SEC’s adoption of proxy access, the U.S. Court of Appeals for the D.C. Circuit vacated the entire proxy access regime as an “arbitrary and capricious” exercise of the SEC’s authority.
CFA Institute’s “Asia-Pacific REITs: Building Trust through Better REIT Governance”
CFA Institute has published the report, Asia-Pacific REITs: Building Trust through Better REIT Governance. This report provides eight recommendations for existing REIT structures in order to improve current governance practices and standards, with the ultimate goal of improvingunitholder protection.
This report is available at CFA's web site, http://www.cfaj.org/publications/Asia-Pacific%20REITs(E)ccb.v2011.n4.1.pdf
“Fiduciary Fraud”, by Hilmar Nierop
Hilmar Hierop has asked us to upload his paper on fiduciary fraud, aconcept now getting more traction inEuropean legal circles. Fiduciary fraud concerns fraud in the context of a relationship between a fiduciary and a beneficiary. Essential to fiduciary fraud is the non-compliance with the fiduciary duty of (absolute) loyalty of the fiduciary towards the beneficiaries and with the requirements regarding prudent asset management and the full and timely disclosure of conflicts of interest, which are inherent to the financial sector.
The Wall Street Journal: “The Fukushima Warning”
Mismanagement at Tepco is a symptom of deeper governance progems in corporate Japan
– Article by Nicholas Benes, at http://on.wsj.com/is5TJd
If you have trouble accessing/viewing the article, please feel free to contactBDTI at info@bdit.or.jp.
Things the U.S. Can Learn from Japan: How to Regulate “Say on Pay” is One of Them” (the article that no one would publish)
So, many observers around the world seem to think that U.S. Investor'Say on Pay' Is a Bust, which is thetitle of this article in Business Week:
– which makes the perfectly logical and factual point that after all the hoopla, The bottom line: Shareholders this year for the first time could vote on executive pay. A majority voted against pay plans at only 32 of 1,998 companies.
SEC Approves Final Whistleblower Provisions of Frank-Dodd
May 25, 2011 – In a meeting open to the public, the SEC approved its final rules implementing the whistleblower provisions in Section 922 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Here are the final rules, which mandate the payment of large incentive rewards to whistleblowers.
UT Soft Law Review Articles: Market for Corporate Control, Going Private, and Legal Education
Soft Law and the State-Market Relationship at the University of Tokyo, a Global COE Program, publishes the UT Soft Law Review. All full text articles on the recent issue of M&As and the Law is available at its project site:
http://www.gcoe.j.u-tokyo.ac.jp/en/publications/UTsoftlaw3.pdf
Market for Corporate Control in Japan by Kenichi Osugi
Panel Discussion: Hostile Takeovers and Defenses – Implications from Delaware Law
Hostile takeovers and Defenses – Implications from Delaware Law UT Soft Law Review, No. 2 is available at the following URL:
http://www.gcoe.j.u-tokyo.ac.jp/en/publications/UTsoftlaw2.pdf
Supreme Court Decides Who Is the ‘Maker’ of a Statement Under Section 10(b)
On June 13, in a 5-4 decision, the U.S. Supreme Court narrowed the circumstances under which a defendant can be held liable in a private action under Rule 10b-5 for “making” a false or misleading statement. The decision held that an investment adviser did not “make” statements contained in prospectuses of the adviser’s mutual fund clients, even though the adviser may have assisted the mutual funds in preparing the statements.