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Chapter 3 · The Public Company Board
I. Why a Board?
Stephen M. Bainbridge, Why a Board? Group
Decisionmaking in Corporate Governance
II. The Roles of the Board in the Public Corporation
Elizabeth A. Nowicki, Director Inattention and
Director Protection under Delaware General
Corporation Law Section 102(b)(7): A Proposal for
Legislative Reform
Report of the Task Force of the ABA Section of
Business Law Corporate Governance Committee on
Delineation of Governance Roles and Responsibilities
J. Robert Brown, Jr., The Demythification of the Board
of Directors
III. Independent Directors
Jeffrey N. Gordon, The Rise of Independent Directors
in the United States, 1950–2005: Of Shareholder Value
and Stock Market Prices
Hampshire Group, Ltd. v. Kuttner
IV. Board Size, Structure, and Leadership
Proxy Disclosure Enhancements
V. Board Committees
VI. Selection of Directors
Michael E. Murphy, The Nominating Process for
Corporate Boards of Directors: A Decision-Making
Analysis
VII. Directors' Compensation
VIII. Diversity on the Board
Renée B. Adams & Daniel Ferreira, Women in the
Boardroom and Their Impact on Governance and
Performance
Lisa M. Fairfax, Board Diversity Revisited: New
Rationale, Same Old Story?
IX. Directors' Tenure
Chapter 4 · Duties of Corporate Fiduciaries
I. The Duty of Care and the Business Judgment Rule
Joy v. North
II. Process Care and the Business Judgment Rule
Smith v. Van Gorkom
III. After Smith v. Van Gorkom
Malpiede v. Townson
J. Robert Brown, Jr. & Sandeep Gopalan, Opting Only
In: Contractarians, Waiver of Liability Provisions, and
the Race to the Bottom
IV. Directors' Oversight and the Duty to Monitor
In re Caremark Int'l Inc. Deriv. Litig.
Stone v. Ritter
Rich v. Chong
V. Caremark Claims and Risk Management
In re Citigroup Inc. Shareholder Deriv. Litig.
VI. The Duty of Disclosure
Malone v. Brincat
Chapter 5 · The Duty of Loyalty
I. Self-Dealing Transactions
Harold Marsh, Jr., Are Directors Trustees? Conflict of
Interest and Corporate Morality
Fliegler v. Lawrence
Benihana of Tokyo, Inc. v. Benihana, Inc.
Pfeffer v. Redstone
J. Robert Brown, Jr., Disloyalty Without Limits:
“Independent” Directors and the Elimination of the
Duty of Loyalty
CDX Liquidating Trust v. Venrock Assoc.
II. Usurping Corporate Opportunities
Broz v. Cellular Information Systems Inc.
AngioScore, Inc. v. Trireme Medical, Inc.
Orman v. Cullman
III. Competing with the Corporation
Riggs Inv. Mgmt. Corp. v. Columbia Partners, L.L.C.
Chapter 6 · Executive Compensation
I. Is The Problem of Executive Compensation a New One?
A. Some History
Harwell Wells, “No Man Can Be Worth $1,000,000 a
Year”: The Fight over Executive Compensation in
1930s America
B. Compensation and the Market: A Debate
Jones v. Harris Associates, L.P.
Jones v. Harris Associates, L.P.
Jones v. Harris Associates, L.P.
C. More on the Structural Issues
Richard A. Posner, Essay: Are American CEOs
Overpaid, and, if so, What if Anything Should Be Done
About It?
II. Fiduciary Duties and the Standard of Review
A. Entire Fairness
Julian v. Eastern States Construction Service, Inc.
CALMA v. Templeton
B. The Duty of Care
Brehm v. Eisner
In re the Walt Disney Co. Derivative Litigation
J. Robert Brown, Jr., Returning Fairness to Executive
Compensation
C. The Safety Valve of Waste
Brehm v. Eisner
In re InfoUSA
III. Compensation and the SEC
A. Compensation and Disclosure
Executive Compensation and Related Person Disclosure
In the Matter of Musclepharm Corporation
Jennifer S. Martin, The House of Mouse and Beyond:
Assessing the SEC's Efforts to Regulate Executive
Compensation
B. Disclosure and Substantive Changes in Behavior
Executive Compensation and Related Person Disclosure
Pay Ratio Disclosure
C. Substantive Regulation of Compensation
SEC v. Jenkins
D. Fixing the Process
Listing Standards for Compensation Committees
E. Compensation Practices and Remedies
SEC v. Bank of America
IV. “Say on Pay” and Strengthening the Role of Shareholders in the
Compensation Process
Shareholder Approval of Executive Compensation and
Golden Parachute Compensation
NECA-IBEW Pension Fund v. Cox
V. The Future Direction of Executive Compensation
Chapter 7 · The Role of Shareholders in the Governance Process
I. Separation of Ownership and Control
A. The Rise of Institutional Investors
Iman Anabtawi & Lynn Stout, Fiduciary Duties for
Activist Shareholders
B. The Types of Institutional Investors
K. A. D. Camara, Classifying Institutional Investors
In re INTECH Investment Management LLC
Jennifer S. Taub, Able but Not Willing: The Failure of
Mutual Fund Advisers to Advocate for Shareholders'
Rights
George W. Dent, Jr., The Essential Unity of
Shareholders and the Myth of Investor Short-Termism
C. The Role of Proxy Advisory Firms
Concept Release on the U.S. Proxy System
II. Majority vs. Plurality Voting
City of Westland Police & Fire Retirement System v.
Axcelis Technologies, Inc.
William K. Sjostrom, Jr. & Young Sang Kim, Majority
Voting for the Election of Directors
III. Shareholder Proposals
A. The Ordinary Business Exclusion and the Public Interest
Exception
Adoption of Amendments Relating to Proposals by
Security Holders
Cracker Barrel Old Country Store, Inc.
Amendments to Rules on Shareholder Proposals
Trinity Wall Street v. Wal-Mart Stores, Inc.
IV. The Mechanics of Voting
A. The Problem of Beneficial Ownership
Crown EMAK Partners, LLC v. Kurz
Concept Release on the U.S. Proxy System
B. The Problem of Overvoting
Seidman and Associates, L.L.C v. G.A. Financial, Inc.
C. The Problem of Uninstructed Shares
Exchange Act Release No. 60215
D. The Problem of Empty Voting
V. Shareholder Rights and Fiduciary Duties of the Board
A. Tampering with the Franchise
Blasius Industries, Inc. v. Atlas Corp.
Mercier v. Inter-Tel (Delaware), Inc.
B. Vote Buying
Schreiber v. Carney
Hewlett v. Hewlett-Packard Co.
Hewlett v. Hewlett-Packard Co.
Chapter 8 · The Market for Corporate Control: Hostile Tender Offers and
Proxy Contests
I. Hostile Tender Offers
A. Federal Regulation of Tender Offers
Steven M. Davidoff, The SEC and the Failure of
Federal Takeover Regulation
B. Section 13(d) and Creeping Tender Offers
Rondeau v. Mosinee Paper Corp.
C. Substantive Regulation of Tender Offers
Allergan, Inc. v. Valeant Pharmaceuticals
International, Inc.
II. State Law and the Regulation of Defensive Tactics
A. Anti-Takeover Statutes
CTS Corp. v. Dynamics Corp. of America
B. The Role of the Target Board in Hostile Takeovers
Frank H. Easterbrook & Daniel R. Fischel, The Proper
Role of a Target's Management in Responding to a
Tender Offer
Martin Lipton, Takeover Bids in the Target's Boardroom
Unocal Corp. v. Mesa Petroleum Co.
Paramount Communications, Inc. v. Time Inc.
C. The Potency of the Poison Pill
Julian Velasco, Just Do It: An Antidote to the Poison
Pill
Air Products and Chemicals, Inc. v. Airgas, Inc.
Joseph A. Grundfest, Just Vote No: A Minimalist
Strategy for Dealing with Barbarians Inside the Gates
III. Proxy Contests
A. Proxy Contests and Shareholder Activism
John C. Coffee, Jr. & Darius Palia, The Wolf at the
Door: The Impact of Hedge Fund Activism on
Corporate Governance
A Debate: Long Term vs. Short Term Effect of Activist
Shareholders
Lucian A. Bebchuk, Alon Brav & Wei Jiang, The Long-
Term Effects of Hedge Fund Activism
John C. Coffee, Jr. & Darius Palia, The Wolf at the
Door: The Impact of Hedge Fund Activism on
Corporate Governance
B. Proxy Contests and State Law
Lucian Arye Bebchuk, John C. Coates IV & Guhan
Subramanian, The Powerful Antitakeover Force of
Staggered Boards: Theory, Evidence, and Policy
Portnoy v. Cryo-Cell International
C. Proxy Contests and Interim Voting Results
Red Oak Fund, L.P. v. Digirad Corporation
D. Proxy Contests and Poison Pills
Unitrin Inc. v. American General Corp.
Yucaipa American Alliance Fund II, LP v. Riggio
Selectica, Inc. v. Versata Enterprises, Inc.
Third Point LLC v. Ruprecht
E. Solving the Problem of the Costs of a Proxy Contest
CA, Inc. v. AFSCME Employees Pension Plan
Facilitating Shareholder Director Nominations
Business Roundtable v. SEC
Chapter 9 · The Role of Disclosure in the Governance Process
I. The State Regime: Inspection Rights
A. Process
Central Laborers Pension Fund v. News Corporation
B. Proper Purpose
City of Westland Police & Fire Retirement System v.
Axcelis Technologies, Inc.
C. Credible Basis
Seinfeld v. Verizon Communications, Inc.
Louisiana Municipal Police Employees Retirement
System v. The Hershey Co.
D. Costs
Norman v. US Mobilcomm, Inc.
II. The Federal Disclosure Regime
Overview
Disclosure and Governance
A. Board Committees
Item 407(c)(2) of Regulation S-K: Corporate
Governance
Standards Relating to Listed Company Audit
Committees
In the Matter of Kiang
B. Board Diversity
Item 407 of Regulation S-K: Corporate Governance
Proxy Disclosure Enhancements
C. Disclosure and Substantive Behavior
In re Hewlett-Packard Co.
J. Robert Brown, Jr., Corporate Governance, the
Securities and Exchange Commission and the Limits of
Disclosure
III. Disclosure and Management Integrity
TSC Industries, Inc. v. Northway, Inc.
Matrixx Initiatives, Inc. v. Siracusano
In re Franchard Corp.
Greenhouse v. MCG Capital
Joan MacLeod Heminway, Personal Facts about
Executive Officers: A Proposal for Tailored
Disclosures to Encourage Reasonable Investor
Behavior
IV. Disclosure and Corporate Social Responsibility
A. Climate Change
Commission Guidance Regarding Disclosure Related to
Climate Change
B. Disclosure of Political Contributions and Lobbying Expenses
Citizens United v. Federal Election Comm'n
Lucian A. Bebchuk & Robert J. Jackson, Jr., Shining
Light on Corporate Political Spending
C. Disclosure, Conflict Minerals, and the First Amendment
National Association of Manufacturers v. SEC
National Association of Manufacturers v. SEC
Celia R. Taylor, Drowning in Disclosure: The
Overburdening of the Securities & Exchange
Commission
V. Equal Access to Information
In re Office Depot
Report of Investigation Pursuant to Section 21(A) of the
Securities Exchange Act of 1934: Netflix, Inc. and Reed
Hastings
Chapter 10 · Shareholders' Derivative Litigation
I. Preliminary Consideration — Direct or Derivative Claims
Tooley v. Donaldson, Lufkin & Jenrette, Inc.
II. Derivative Litigation
A. Standing
Schoon v. Smith
B. The Demand Requirement
Aronson v. Lewis
C. Special Litigation Committees
1. Selection, Composition, and Duties
2. Judicial Review of SLC Decisions
Zapata Corp. v. Maldonado
3. When Are Directors “Independent”?
Beam ex rel. Martha Stewart Living Omnimedia, Inc. v. Stewart
Delaware County Employees' Retirement Fund v. A.R. Sanchez, Jr.
London v. Tyrrell
D. Resolving Shareholders' Lawsuits
1. Empirical Evidence
2. Judicial Review of Settlements
3. Litigation Challenging Corporate Mergers and
Acquisitions
4. Attorneys' Fees
5. Indemnification and Insurance
Cohen v. Viray
III. Debating Derivative Litigation
Reinier Kraakman, Hyun Park, & Steven Shavell, When
Are Shareholder Suits in Shareholder Interests?
IV. Reforming Shareholders' Litigation
ATP Tour, Inc. v. Deutscher Tennis Bund
Chapter 11 · Philanthropy, Social Responsibility, and Stakeholder Rights
I. The Purpose of the Corporate Form
William W. Bratton & Michael L. Wachter, Shareholder
Primacy's Corporatist Origins: Adolf Berle and The
Modern Corporation
II. Corporate Philanthropy
Theodora Holding Corp. v. Henderson
Kahn v. Sullivan
M. Todd Henderson & Anup Malani, Essay: Corporate
Philanthropy and the Market for Altruism
III. Stakeholders
Larry E. Ribstein, Accountability and Responsibility in
Corporate Governance
Kent Greenfield & D. Gordon Smith, Debate: Saving
the World with Corporate Law?
Antony Page, Review: Has Corporate Law Failed?
Addressing Proposals for Reform
George W. Dent, Jr., Stakeholder Theory and the
Relationships between Host Communities and
Corporations: Stakeholder Governance: A Bad Idea
Getting Worse
Committee on Corporate Laws, Report on Other
Constituencies Statutes: Potential for Confusion
Baron v. Strawbridge & Clothier
Joseph Karl Grant, When Making Money and Making a
Sustainable and Societal Difference Collide: Will
Benefit Corporations Succeed or Fail?
IV. Corporate Social Responsibility
A. Corporate Social Responsibility and Private Ordering
Joshua A. Newberg, Corporate Codes of Ethics,
Mandatory Disclosure, and the Market for Ethical
Conduct
Elizabeth F. Brown, No Good Deed Goes Unpunished:
Is There a Need for a Safe Harbor for Aspirational
Corporate Codes of Conduct?
Surya Deva, Global Compact: A Critique of the U.N.'s
“Public-Private” Partnership for Promoting
Corporate Citizenship
B. Corporate Social Responsibility and Private Enforcement of
Human Rights
Sosa v. Alvarez-Machain
Kiobel v. Royal Dutch Petroleum Co.
Doe v. Nestle USA, Inc.
In re Chiquita Brands International
C. Corporate Social Responsibility and Private Enforcement
under the Federal Securities Laws
Miriam A. Cherry, The Law and Economics of
Corporate Social Responsibility and Greenwashing
In re Ford Motor Co. Secur. Litigation
Chapter 12 · Comparative Corporate Governance
I. Corporate Governance Hegemony
Henry Hansmann & Reinier Kraakman, The End of
History for Corporate Law
II. Monitoring Management
A. Capital Markets and Monitoring
Franklin Allen & Jun “QJ” Qian, China's Financial
System and the Law
Iris H-Y Chiu, Reviving Shareholder Stewardship:
Critically Examining the Impact of Corporate
Transparency Reforms in the UK
Yuliya Gusevaa, Cross-Listings and the New World of
International Capital: Another Look at the Efficiency
and Extraterritoriality of Securities Law
B. Controlling Shareholders and Monitoring
Erica Gorga, Changing the Paradigm of Stock
Ownership from Concentrated towards Dispersed
Ownership? Evidence from Brazil and Consequences
for Emerging Countries
C. Banks and Monitoring
Dan W. Puchniak, The Efficiency of Friendliness:
Japanese Corporate Governance Succeeds Again
without Hostile Takeovers
Bruce E. Aronson, The Olympus Scandal and
Corporate Governance Reform: Can Japan Find a
Middle Ground between the Board Monitoring Model
and Management Model?
III. Civil Code vs. Common Law Jurisdictions
A. The Common Law Model and Its Variations
Christopher M. Bruner, Power and Purpose in the
“Anglo-American” Corporation
B. Civil Code Jurisdictions
1. Background
Mark J. Roe, Legal Origins, Politics, and Modern Stock Markets
2. Comply or Explain
Klaus J. Hopt, Comparative Corporate Governance: The State of
the Art and International Regulation
3. Dual Board Structure
Brian R. Cheffins & Bernard S. Black, Outside Director Liability
Across Countries
Seybold v. Groenink
Tracinda Corp. v. Daimlerchrysler AG
4. The Role of Stakeholders
Paul L. Davies & Klaus J. Hopt, Corporate Boards in Europe —
Accountability and Convergence
Aditi Bagchi, Varieties of Employee Ownership: Some Unintended
Consequences of Corporate Law and Labor Law
C. Case Study: Italy
Carlo Drago, Francesco Millo, Roberto Ricciuti, Paolo
Santella, Corporate Governance Reforms, Interlocking
Directorship and Company Performance in Italy
Lorenzo Segato, A Comparative Analysis of
Shareholder Protections in Italy and the United States:
Parmalat as a Case Study
Marco Ventoruzzo, Experiments in Comparative
Corporate Law: The Recent Italian Reform and the
Dubious Virtues of a Market for Rules in the Absence
of Effective Regulatory Competition
In re Parmalat Securities Litigation
David A. Skeel, Jr. et al., Inside-Out Corporate
Governance
Luca Enriques, Corporate Governance Reforms in
Italy: What Has Been Done and What Is Left to Do
IV. What Role for the European Union?
Arthur R. Pinto, The European Union's Shareholder
Voting Rights Directive from an American Perspective:
Some Comparisons and Observations
Luca Enriques, EC Company Law Directives and
Regulations: How Trivial Are They?
Shuangge Wen, Less Is More — A Critical View of
Further EU Action towards a Harmonized Corporate
Governance Framework in the Wake of the Crisis
V. Corporate Governance and Developing Countries
A. Does the Law Matter?
Ali Adnan Ibrahim, Developing Governance and
Regulation for Emerging Capital and Securities
Markets
B. The Problem of Enforcement in Emerging Markets
Bernard Black & Reinier Kraakman, A Self-Enforcing
Model of Corporate Law
J. Robert Brown, Jr. & Kostyantyn Shkurupiy,
Corporate Governance in the Former Soviet Union:
The Failure of the Self-Enforcing Model
VI. Corporate Governance and Culture
J. Robert Brown, Jr., Culture, Chaos and Capitalism:
Privatization in Kazakhstan
Yu-Hsin Lin, Do Social Ties Matter in Corporate
Governance? The Missing Factor in Chinese
Corporate Governance Reform
Ali Adnan Ibrahim, The Rise of Customary Businesses
in International Financial Markets: an Introduction to
Islamic Finance and the Challenges of International
Integration
Wafik Grais & Matteo Pellegrini, Corporate
Governance and Shariah Compliance in Institutions
Offering Islamic Financial Services
VII. Corporate Governance Hegemony (Redux)
Douglas M. Branson, The Very Uncertain Prospect of
“Global” Convergence in Corporate Governance
Chapter 13 · How Does Corporate Governance Matter?
I. Does Good Governance Enhance Firm Performance?
Sanjai Bhagat, Brian Bolton & Roberta Romano, The
Promise and Peril of Corporate Governance Indices
David F. Larcker, Gaizka Ormazabal & Daniel J. Taylor,
The Market Reaction to Corporate Governance
Regulation
II. The Quack Corporate Governance Debate
Roberta Romano, The Sarbanes-Oxley Act and the
Making of Quack Corporate Governance
Harry N. Butler & Larry E. Ribstein, The Sarbanes-
Oxley Debacle: What We've Learned; How to Fix It
J. Robert Brown, Jr., Essay: Criticizing the Critics:
Sarbanes-Oxley and Quack Corporate Governance
Stephen M. Bainbridge, Dodd-Frank: Quack Federal
Corporate Governance Round II
III. Independent Directors and Corporate Governance
Jeffrey N. Gordon, The Rise of Independent Directors
in the United States, 1950–2005: Of Shareholder Value
and Stock Market Prices
Chris Cernich et al., Effectiveness of Hybrid Boards
Lucian A. Bebchuk & Michael S. Weisbach, The State
of Corporate Governance Research
Olubunmi Faleye, Rani Hoitash & Udi Hoitash, The
Costs of Intense Board Monitoring
Sanjai Baghat & Brian Bolton, Director Ownership,
Governance and Performance
Index
Table of Cases