Archivo: varios papers

Exceso de protección antiopa

antitakeover provisions magnify the entrenchment effect of managerial ownership and weaken its incentive effect….Aware of the negative impact of antitakeover provisions on the value effect of managerial ownership, shareholders should grant fewer shares to the manager when there are stronger antitakeover provisions. I show that managerial ownership decreases significantly with the strength of antitakeover provisions. On average, the combined ownership of the top five executives is 7.6% in the firms with the weakest antitakeover provisions, and 2.1% in the firms with the strongest antitakeover provisions.

Zhang, Feng, Antitakeover Provisions, Managerial Incentives, and Firm Value

Naked Restraints

 “[a] serviceable definition of a naked restraint is one whose profitability depends on the exercise of market power” (importantísimo para la distinción objeto/efectos en el art. 101 TFUE)

Herbert Hovenkamp

 

Vertical Restraints

We are therefore somewhat surprised at what the weight of the evidence is telling us. It says that, under most circumstances, profit-maximizing vertical-integration decisions are efficient, not just from the firms’ but also from the consumers’ points of view. Although there are isolated studies that contradict this claim, the vast majority support it. Moreover, even in industries that are highly concentrated so that horizontal considerations assume substantial importance, the net effect of vertical integration appears to be positive in many instances. We therefore conclude that, faced with a vertical arrangement, the burden of evidence should be placed on competition authorities to demonstrate that that arrangement is harmful before the practice is attacked. Furthermore, we have found clear evidence that restrictions on vertical integration that are imposed, often by local authorities, on owners of retail networks are usually detrimental to consumers. Given the weight of the evidence, it behooves government agencies to reconsider the validity of such restrictions.

Of course, this does not bless all instances of vertical contracts or integration as pro-competitive.  The antitrust approach appropriately eschews ex ante regulation in favor of a fact-specific rule of reason analysis that requires plaintiffs to demonstrate competitive harm in a particular instance Economists have known since Coase — and have been reminded by Klein, Alchian, Williamson and others — that firms may achieve by contract anything they could do within the boundaries of the firm.  The point is that, in the economics literature, it is well known that content self-promoting incentives in a vertical relationship can be either efficient or anticompetitive depending on the circumstances of the situation.  The empirical literature suggests that such relationships are mostly pro-competitive and that restrictions upon the abilities of firms to enter them generally reduce consumer welfare.

Lafontaine, Francine, and Margaret Slade. 2007. "Vertical Integration and Firm Boundaries: The Evidence." Journal of Economic Literature, 45(3): 629-685.

Efectos de imponer la revisión de las solicitudes de préstamos hipotecarios por un asesor financiero  

We explore the effects of mandatory third-party review of mortgage contracts on the terms, availability, and performance of mortgage credit. Our study is based on a legislative experiment in which the State of Illinois required ‘high-risk’ mortgage applicants acquiring or refinancing properties in 10 specific zip codes to submit loan offers from state-licensed lenders to review by HUD-certified financial counselors. We document that the legislation led to declines in both the supply of and demand for credit, with state licensed lenders and lower-quality borrowers disproportionately exiting the affected area. Controlling for the salient characteristics of the remaining borrowers and lenders, we find that the legislation succeeded in reducing ex post default rates among counseled borrowers by 3 to 4 percentage points (about 30% decline). We attribute this result to actions of lenders responding to the presence of external review and, to a lesser extent, to counseled borrowers renegotiating their loan terms. We also find that the legislation nudged some borrowers to choose less risky loan products in order to avoid counseling.

Garwal, Sumit, Amromin, Gene, Ben-David, Itzhak, Chomsisengphet, Souphala and Evanoff, Douglas D., Do Financial Counseling Mandates Improve Mortgage Choice and Performance? Evidence from a Legislative Experiment .

El diseño norteamericano de la acción social de responsabilidad y de acciones basadas en normas del mercado de valores.

When a corporate executive faces the threat of jail time in a criminal proceeding or the possibility of multi-million dollar sanctions in a securities class action, for example, what additional deterrence does a shareholder derivative suit provide? Shareholder derivative suits are the most common type of private corporate fraud lawsuit  In a derivative suit, the corporation is the functional plaintiff—the real party in interest—and the allegations are typically that the corporation’s current or former officers and directors breached their fiduciary duties to the corporation. These allegations can run the gamut from traditional allegations of self-dealing and usurpation of corporate opportunities to allegations of corporate fraud and financial deceit. Despite the fact that a derivative suit is brought in the corporation’s name, the corporation’s role is limited because shareholders, whom I will call derivative plaintiffs, file these suits on behalf of corporations. The law gives shareholders this power because corporate officers and directors, who normally decide whether corporations should file lawsuits, are often implicated in the alleged wrongdoing and cannot be trusted to make unbiased decisions regarding the merits of these suits (por eso, en el Derecho español, la acción social de responsabilidad la puede ejercer la minoría del 5 %).

In contrast, securities class actions are brought under the federal securities laws. In securities class actions, shareholders typically sue the corporation and the corporation’s officers and directors, alleging that the defendants lied to the market by making false or misleading statements about the corporation’s business model or financial results. Any recovery is distributed to the class. According to this accepted wisdom, shareholder derivative suits target traditional forms of corporate malfeasance such as self-dealing or usurpation of corporate opportunities, while securities class actions and SEC enforcement suits target corporate fraud and other misstatements to the market

Wachtell, Lipton, Rosen & Katz, a leading corporate defense firm, has taken up the charge, recommending to its corporate clients that they adopt a charter amendment requiring that the Delaware Court of Chancery be the “sole and exclusive forum” for any breach of fiduciary duty suit filed against the company or its officers, directors, or shareholders

The data suggest that many shareholder derivative suits simply piggyback on securities class actions and other types of corporate fraud lawsuits. The shareholder derivative suits in the study rarely acted as whistleblowers, alerting the government and other private plaintiffs of the alleged fraud. Instead, these suits typically followed quickly on the heels of other lawsuits, especially securities class actions and SEC enforcement suits. Indeed, this timing presents the possibility that attorneys who file shareholder derivative suits may watch for promising lawsuits and then use the allegations in these suits to craft a parallel shareholder derivative suit

Erickson, Jessica, Overlitigating Corporate Fraud: An Empirical Analysis (March 9, 2011).  

Las cuotas de mercado y los efectos competitivos de las concentraciones

the antitrust agencies’ 2010 Horizontal Merger Guidelines are premised in large part upon the notion that modern merger analysis considers shares to be an inherently unreliable predictor of competitive effects!!