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Volume 4, Number 8 • August 2007
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James Kristie Lisa
Cody David Shaw Scott Chase Nancy Maynard Barbara Wenger Jerri Smith 1845 Walnut Street
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Jim Kristie is the editor and associate publisher of Directors & Boards.
Will the Tellabs Case Impact the Need
for D&O Coverage?Yes, there is some enthusiasm about the Supreme Court decision’s potential as a pushback on class-action suits, but don’t get too excited. By Evan Rosenberg The U.S. Supreme Court’s recent headline-generating decision in the Tellabs, Inc. v. Makor securities case was nearly five years in the making. What impact will this decision have on your need for directors and officers liability insurance? A brief review the case will help answer that question. In a 2002 securities fraud class-action lawsuit, plaintiff Makor Issues & Rights Ltd. alleged that the CEO of Tellabs Inc., a fiberoptic cable equipment manufacturer, misrepresented the strength of its product sales and earnings, thereby artificially inflating the company’s stock price. Under the Private Securities Litigation Reform Act of 1995, in order to survive a motion to dismiss, the plaintiffs must show scienter (that is, intent) and demonstrate that company executives knew about poor financial results that would drive down the stock price and knowingly or recklessly failed to disclose those results. The district court found that Makor’s complaints had insufficiently shown that Tellabs’s CEO had acted recklessly and dismissed the case. The plaintiffs appealed, and the Seventh Circuit Court of Appeals reversed the lower court’s decision, holding that the plaintiff’s complaint adequately pleaded scienter. Tellabs then appealed the Seventh Circuit’s reversal to the U.S. Supreme Court. [Click
Here to Read
the Entire Article]
What Can We Learn from Private Equity? A lot — especially about how PE firms approach the governance of their investments. By Robert H. Rock The value of mergers and acquisitions has soared, up almost 50 percent from last year’s record amount. An increasing number of these deals involve private equity (PE) firms. During the last takeover boom in 2000, PE accounted for 1 in 25 deals; so far this year, it’s 1 in 3. In the first half of 2007, PE raised a quarter of a trillion dollars; 15 years ago, the figure was $10 billion. PE now drives the financial markets, and the heads of these firms are the new kings of Wall Street. Over the past five years I have voted three times as a director to sell the company to a PE firm. At the time, the price paid for these companies, bid up during an exhaustive auction process, seemed very full. But within a few years, the new owners had extracted a tidy profit, and in one case an outright killing. How did they accomplish this? They upgraded management, raised performance expectations, tied rewards to performance, instilled a sense of urgency, cut costs, pared unprofitable operations, grew those parts where returns were highest, capitalized on low interest rates and relatively loose covenants, and imposed the discipline of leverage. In addition, these PE firms revamped the board of directors, often inserting a strong outside chairman, and instituted rigorous oversight processes that helped bring about these superior results. [Click Here to Read the Entire Article] Harry L. “Hank” Gutman Director KPMG’s Tax Governance Institute
Editor's note: Each month, we ask a
Directors & Boards reader to comment on critical issues facing
directors today. If you'd like to participate in this section in
the future, please email Scott
Chase. KPMG’s new Tax Governance Institute director offers important advice on tax risk best practices. Why is tax risk becoming an increasingly important topic inside the C-suite and before corporate boards? Historically, taxes have not received a great deal of attention by those outside the tax department. Dialogue within a company about goals, objectives and risks typically avoided discussions of tax. This frequently created a disparity between the company’s tax risk profile and its overall corporate risk profile. However, as the regulatory and business climates have shifted in recent years, we have seen a growing recognition of the scope and magnitude of tax risk. This has been prompted in a large part by the overwhelming number of tax-related material weaknesses reported under Sarbanes-Oxley 404, highlighting inadequate internal controls over the financial reporting of income taxes, a responsibility that falls squarely within the purview of corporate management and the audit committee. Additionally, the recent implementation of FIN 48 and demands for greater transparency and disclosure by the SEC, Congress and taxing authorities throughout the world, have created a need for audit committees, corporate management and tax directors to collaborate more formally on the oversight of their company’s tax risk management. [Click Here to Read the Entire Article] Manufacturing, Financial Services and Retail Expected to be Hit the Most;71% See an Increase in Cross-Border Restructurings No less than 79 percent of leading restructuring experts predict increased defaults on high-yield corporate debt in the next 18 months, according to a new survey by AlixPartners LLP. The survey, called the AlixPartners Risk Factor Index, was conducted in May with select bankers, lawyers, fund managers and other industry experts in the U.S., with 34 responding in detail. The remaining 21 percent of the respondents said they expect the level of debt defaults to remain the same over the next year and a half, while none said the level will decrease. When asked to rate which of five key industries is most likely to experience the need for turnarounds, 59 percent picked manufacturing, followed by financial services (24 percent), retail and consumer products (21 percent), and healthcare and pharmaceutical (19 percent). Of note, in addition to these “most-likely” votes, all five industries received several votes each for “second-most likely” and “third-most likely.” The fifth industry in question was energy and utilities. Why are debt defaults expected to increase? Thirty-five percent of those polled predicted the trigger will be some sort of a shock to the economy, with events ranging from a big bank meltdown to, the unthinkable, a terrorist attack listed as possibilities. An additional 35 percent said that today’s unprecedented debt levels alone might be the trigger, as more and more companies stagger under the weight of today’s crushing debt loads. By contrast, only 16 percent said they thought that a full-blown recession would be necessary to drive an expansion in debt defaults. However, of note, 31 percent said that increased government regulation of hedge funds, in the U.S. or internationally, would lead to less liquidity in the market—which many experts believe could itself bring on a recession. Because so many companies today know no national boundaries, the experts also were asked to predict the future of cross-border restructurings, a top topic in Europe in particular. A resounding 71 percent said they believe the number cross-border restructurings will increase in the next year and a half, with only 3 percent expecting them to decrease. About AlixPartners AlixPartners is a global restructuring, consulting and financial advisory firm. The firm has offices in Chicago, Dallas, Detroit, Düsseldorf, London, Los Angeles, Milan, Munich, New York, Paris, San Francisco, Shanghai and Tokyo. ![]() ![]() August
22-24, 2007 September
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30 - October 5, 2007 October
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29-31, 2007 November
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27, 2007 Outstanding Directors Exchange (ODX) and Columbia Business School hold an ODX New York session for a series of panels on key issue in corporate governance. For information, visit IT Risk Emerges as a Priority While audit committees continue to stay squarely focused on the basics of financial reporting oversight, they are developing a heightened awareness and appreciation of other risks that could have significant financial reporting implications, according to the 2006-2007 Public Company Audit Committee Member Survey. The survey — sponsored by KPMG’s Audit Committee Institute and the National Association of Corporate Directors — indicates that oversight of accounting judgments and estimates and Sarbanes-Oxley Section 404 compliance are the top two priorities for many audit committees this year. But the oversight of information technology (IT) risk has emerged as a high priority, as well. In fact, only 15 percent of the 282 audit committee members surveyed were “very satisfied” with their oversight of IT and about one in five said their IT risk oversight needed improvement. Some 90 percent of respondents said the audit committee should devote more agenda time to IT risk oversight. For more information, visit http://www.kpmg.com/aci. Support for Climate Change Proposals Inches Higher It was a record proxy season in 2007 for shareholder proposals asking companies to address climate change, with more proposals coming to a vote and higher support levels than the two previous years, according to Proxy Governance, a leading proxy advisory firm. Based on preliminary results reported by the firm in July, more than 40 climate-related shareholder proposals were filed for 2007, compared to 27 last year, as proponents tried to build momentum from what was seen as a successful campaign last year to make climate change a more prominent issue among mainstream institutional investors. Five climate proposals were supported by more than 30 percent of the votes cast — a level often viewed as significant — compared to just one proposal with this level of support in prior years. Increasingly, corporations were seen joining investors on the issue as well. In March, for instance, a dozen major corporations, including DuPont and Alcoa, joined more than 50 concerned institutional investors in calling on Congress to pass comprehensive regulations to control greenhouse gas (GHG) emissions. Securities Class Action Suits: ‘Extremely Low Filing Activity’ Securities class action filings are well below historical averages for the fourth consecutive six-month period, finds a new mid-year report released in July by the Stanford Law School Securities Class Action Clearinghouse in cooperation with Cornerstone Research. The 59 filings recorded in the first half of 2007 (January through June 22, 2007) represent a 42 percent drop from the average semi-annual filing rate of 101 (mid-year periods July 1996 through June 2005). “We’ve now had two years worth of extremely low filing activity,” explained Stanford Law School Professor Joseph Grundfest, director of the Securities Class Action Clearinghouse, co-director of the Rock Center on Corporate Governance, and former Commissioner of the Securities and Exchange Commission. “This is starting to look like a permanent shift, not a transitory phenomenon.” The full report is available to view online and can be downloaded at http://securities.stanford.edu/index.html or http://securities.cornerstone.com ![]() Director Resources New Information Center: Deloitte & Touche has launched a new online Center for Corporate Governance, designed as a “one-stop shop” for boards of directors, c-suite executives, internal auditors, in-house counsel, and others who need the latest information on corporate governance and compliance. The site will offer timely, relevant information and opinions on issues of concern to audit committees, board governance, and compensation committees, and will include Deloitte webcasts, podcasts and events. IPO Report: Despite the attention paid to the “going private” boom, going public is making a strong comeback for emerging companies, though not without challenges, according to IPO Executive Insights 2007, a survey commissioned by Nixon Peabody LLP. In the first quarter of 2007, $12.1 billion was raised through 64 IPOs, and 81 percent of the CEOs and CFOs surveyed — senior executives who recently led their companies through IPOs — expect the U.S. IPO market to remain robust during the next 12 months. These senior executives believe the Nasdaq and London Stock Exchange will see the most IPO activity, despite talk of Hong Kong Stock Exchange dominance. IPO Executive Insights 2007 also delves into the challenges of the IPO process, specifically corporate governance, accounting and compliance issues, and offers examples of how these challenges were resolved. The full report is available at http://www.nixonpeabody.com. Doing Business in India: “What’s Ahead for the Booming Indian Economy?: A Realistic Assessment” is the subject of a special report produced by The Dilenschneider Group, a leading consultancy on strategic communications and policy issues facing corporations. For a copy, call 212-922-0900. (Robert L. Dilenschneider, the firm’s chairman, is a member of the editorial advisory board of Directors & Boards.) Doing Business with the U.S. Government: Integrity Interactive Corp., a company that helps global corporations build ethical cultures that reduce risk, announced in July a new service designed to help federal contractors and subcontractors comply with sweeping new ethics and compliance requirements about to be imposed by the U.S. government. The proposed changes will affect tens of thousands of companies — public and private, foreign and domestic. To learn more, call 781-891-9700 or visit http://www.integrity-interactive.com. Your Buzz Factor: Hoover's Inc. has launched The Hoover’s Index, a free, proprietary monthly index of the leading public and private companies, nonprofits, and associations which represent the brand leaders, up-and-comers and “buzz” creators driving the U.S. and international economies. The Hoover’s Index, which reveals monthly spikes in company search activity, represents a relative ranking of companies generating interest and exposure independent of pure fiscal performance measured by most business ranking indexes. “The Hoover’s Index is a valuable resource for business executives, financial analysts, mutual fund managers, and investment advisors in gauging which companies are capturing the interest of the global business community. It’s a bit like TV ratings for companies,” says Paul Pellman, interim president of Hoover’s. Additionally, for those who would like direct delivery of news about the latest developments within The Hoover’s Index, the Hoover’s Hottest Companies newsletter is also available. Author Notes Kurt Schacht, CFA, managing director of the CFA Institute Centre for Financial Market Integrity, now appears every Friday morning on Chuck Jaffe’s “Your Money Radio” show. Schacht, who is an expert on hedge funds, corporate governance, securities regulation, and global investment market reform, will be discussing these topics in upcoming segments. Schacht’s radio segment is called “You Should Know.” It appears at 6:50 a.m. (Eastern) and is available online or on WBIX (AM-1060) in Boston. Jaffe’s show airs daily from 6 am to 7:30 am and is also podcasted. Jaffe is senior columnist for MarketWatch. Through syndication, his "Your Funds" column is the most widely read feature on mutual fund investing in America. Gordian Group has been retained by Bravo! Brands Inc., a brand development and marketing company that promotes and distributes vitamin-fortified flavored milk and other beverages to provide financial advisory services to assist the company with the restructuring, reorganization, sale or other strategic alternatives. Gordian Group’s Henry F. Owsley and Peter S. Kaufman are the authors of the book, Distressed Investment Banking: To the Abyss and Back, an excerpt of which appeared in the Third Quarter 2006 issue of Directors & Boards. For the fourth consecutive year, The American Lawyer magazine has named Debevoise & Plimpton LLP to the top position in its "A-List" ranking of the nation's leading law firms. In its July issue, The American Lawyer notes that Debevoise "continues to combine near-perfect pro bono scores with top-flight revenue per lawyer and diversity numbers...." Debevoise ranked second in New York and fourth nationally for its pro bono work. This is the publication's fifth annual A-List survey, which ranks firms based on revenue per lawyer, associate satisfaction, diversity and pro bono effort. Debevoise is one of seven firms that have been included in The American Lawyer's 20-member A-List in each of those five years. LRN has acquired Fuel, an e-learning company based in the U.K. The combination of the companies provides enhanced capabilities and positions LRN as the foremost leader in helping companies address global ethics and compliance issues. Fuel was founded in 1994 and named one of five global e-learning visionaries by industry analyst firm Gartner Group. Protiviti Inc., a global provider of independent business and technology risk consulting and internal audit services, has been recognized as a leader in risk consulting services by Forrester Research in its June 2007 report, "The Forrester Wave: Risk Consulting Services, Q2 2007." Morrison & Foerster LLP has strengthened its Executive Compensation Practice with the addition of Michael T. Frank, a leading tax practitioner, as a partner in its Palo Alto office. Mr. Frank has advised on the executive compensation and related aspects of more than 150 domestic and cross-border mergers, acquisitions, and spinoffs. He joins the firm from DLA Piper, where he was a partner in that firm’s Palo Alto office. Back to the Top Directors & Boards e-Briefing is a monthly service of Directors & Boards. All contents copyright 2007, MLR Holdings LLC. |
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