This Article addresses mutual fund governance, explaining how it has recently become entangled with the norms and rules of corporate governance. At one level, it is understandable that the Securities and Exchange Commission (SEC) and courts have viewed mutual funds as a type of ordinary corporation. Both mutual funds and corporations are separate legal entities, having directors and shareholders. Directors of each are held to fiduciary duties, charged with serving shareholders’ interests, and expected to aspire to best practices. However, there are fundamental differences between mutual funds and ordinary corporations. This Article contends that these differences have important implications for governance, differences that should lead to the disentanglement of mutual fund governance from corporate governance.
Where Have All the IPOs Gone? The Hard Life of the Small IPO
Paul Rose and Steven Davidoff Solomon
We examine firm lifecycles of 3,081 IPOs from 1996–2012. We find that small IPOs have a different lifecycle than other, larger companies. Within five years of an IPO, only 55% of small capitalization companies remain listed on a public exchange, compared to 61% and 67% for middle and large capitalization companies, respectively. We examine various theories explaining the decline of the small IPO. We find only minor evidence that regulatory changes caused the decline of the small IPO. The decline appears instead to be more attributable to the historical unsuitability of small firms for the public market. Absent economic or market reforms that change small firm quality, further regulatory reforms to enhance the small IPO market are thus unlikely to be effective or bring firms into the public market that have the horsepower to remain publicly listed.
The Conflict Minerals Experiment
In Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress instructed the Securities and Exchange Commission (SEC) to draft rules that would require public companies to report annually on whether their products contain certain Congolese minerals. This unprecedented legislation and the SEC rulemaking that followed have inspired an impassioned and ongoing debate between those who view these efforts as a costly misstep and those who view them as a measured response to human rights abuses committed by the armed groups that control many mines in the Democratic Republic of the Congo. This Article for the first time brings empirical evidence to bear on this controversy.
It Ain’t Broke: The Case For Continued SEC Regulation of P2P Lending
August 9, 2016
In 2008, the Securities and Exchange Commission made waves by deciding to regulate the nascent peer-to-peer lending industry. Only two lending platforms survived the SEC’s entry into a previously lightly-regulated market. Under this regulatory setup, the SEC would regulate the lending-investing process, while other agencies like the Consumer Financial Protection Bureau and Federal Trade Commission would regulate the borrower side of the business. This Article argues that the existing bifurcated system works and is continually getting better as the SEC amends existing exemptions and introduces new regulations to smooth the path for financial innovation.
Memorandum to the Compliance Counsel, United States Department of Justice
Jonathan J. Rusch
April 2, 2016
Since 1977, with the enactment of the Foreign Corrupt Practices Act, the United States Department of Justice has played a leading role in applying the Act’s anti-bribery, books and records, and internal controls provisions in enforcement proceedings against numerous companies and individuals worldwide. In November 2015, the Department of Justice took the unprecedented step of hiring a Compliance Counsel to guide its prosecutors in decision-making in corporate prosecutions and in benchmarking corporate compliance. This Memorandum is composed as an open letter to the Compliance Counsel, focusing on how she and the Department of Justice should go about that critical benchmarking function.
Can Voluntary Price Disclosures Fix the Payday Lending Market?
March 28, 2016
Eric J. Chang’s provocative article, www.PayDayLoans.gov: A Solution for Restoring Price-Competition to Short-Term Credit Loans—which, as its title suggests, proposes to facilitate price competition in the payday lending market by creating a federal online exchange for payday lenders to post lending rates—has sparked thoughtful reactions among consumer borrowing experts. This Response provides constructive criticism to Chang’s proposal, arguing that such an exchange is unlikely to meet its goal of restoring price competition and offering tweaks that would raise the likelihood of doing so.