Jill E. Fisch

Director Elections and the Role of Proxy Advisors

Using a dataset of proxy recommendations and voting results for uncontested director elections from 2005 and 2006 at S&P 1500 companies, we examine how advisors make their recommendations. Of the four firms we study, Institutional Shareholder Services (ISS), Proxy Governance (PGI), Glass Lewis (GL), and Egan Jones (EJ), ISS has the largest market share and is widely regarded as the most influential. We find that the four proxy advisory firms differ substantially from each other both in their willingness to issue a withhold recommendation and in the factors that affect their recommendation. It is not clear that these differences, or the bases for the recommendations, are transparent to the institutions that purchase proxy advisory services. If the differences are not apparent, investors may not accurately perceive the information content associated with a withhold recommendation, and investors may rely on those recommendations based on an erroneous understanding of the basis for that recommendation. To the extent that proxy advisors aggregate information for the purpose of facilitating an informed shareholder vote, these limitations may impair the effectiveness of the shareholder franchise. If the differences are apparent, our results show that investors, though selecting a proxy advisor, can indirectly choose the bases for their vote on directors. To that extent, it is likely that proxy advisory firms will retain more investor clients if their recommendations are based on factors that their clients consider relevant.

How To Fix Wall Street: A Voucher Financing Proposal for Securities Intermediaries

III. SECURITIES MARKET INTERMEDIARIES 283 A. Securities Analysts 283 B. Auditors 291 C. Proxy Advisory Services 294 D. Shareholder Activism 298 E. Administrative Services 301

Why Do Retail Investors Make Costly Mistakes? An Experiment on Mutual Fund Choice

There is mounting evidence that retail investors make predictable, costly investment mistakes, including underinvestment, naive diversification, and payment of excessive fund fees. Over the past thirty-five years, however, participant-directed 401(k) plans have largely replaced professionally managed pension plans, requiring unsophisticated retail investors to navigate the financial markets themselves. Policy-makers have struggled with regulatory interventions designed to improve the quality of investment decisions without a clear understanding of the reasons for investor mistakes. Absent such an understanding, it is difficult to design effective regulatory responses. This article offers a first step in understanding the investor decision-making process. We use an internet-based experiment to disentangle possible explanations for inefficient investment decisions. The experiment employs a simplified construct of an employees allocation among the options in a retirement plan coupled with technology that enables us to collect data on the specific information that investors choose to view. In addition to collecting general information about the process by which investors choose among mutual fund options, we employ an experimental manipulation to test the effect of an instruction on the importance of mutual fund fees. Pairing this instruction with simplified fee disclosure allows us to distinguish between motivation-limits and cognition-limits as explanations for the widespread findings that investors ignore fees in their investment decisions. Our results offer partial but limited grounds for optimism. On the one hand, within our simplified experimental construct, our subjects allocated more money, on average, to higher-value funds. Furthermore, subjects who received the fees instruction paid closer attention to mutual fund fees and allocated their investments into funds with lower fees. On the other hand, the effects of even a blunt fees instruction were limited, and investors were unable to identify and avoid clearly inferior fund options. In addition, our results suggest that excessive, naive diversification strategies are driving many investment decisions. Although our findings are preliminary, they suggest valuable avenues for future research and important implications for regulation of retail investing.

Retroactivity and Legal Change: An Equilibrium Approach

This article assesses current retroactivity doctrine and proposes a new framework for retroactivity analysis. Current law has failed to reflect the complexity of defining retroactivity and to harmonize the conflicting concerns of efficiency and fairness that animate retroactivity doctrine. By drawing a sharp distinction between adjudication and legislation, the law has also overlooked the similarity of the issues raised by retroactivity in both contexts. The article proposes instead an equilibrium approach, influenced by the legal process school, to connect retroactivity to theories of legal change. Instead of focusing on the nature of the new legal rule, this approach emphasizes the context in which change occurs. The use of equilibrium theory improves doctrinal analysis of the temporal line-drawing associated with legal change and clarifies the relationship of retroactivity rules to lawmaking power.

Confronting the Peppercorn Settlement in Merger Litigation: An Empirical Analysis and a Proposal for Reform

Shareholder litigation challenging corporate mergers is ubiquitous, with the likelihood of a shareholder suit exceeding 90%. The value of this litigation, however, is questionable. The vast majority of merger cases settle for nothing more than supplemental disclosures in the merger proxy statement. The attorneys that bring these lawsuits are compensated for their efforts with a court-awarded fee. This leads critics to charge that merger litigation benefits only the lawyers who bring the claims, not the shareholders they represent. In response, defenders of merger litigation argue that the lawsuits serve a useful oversight function and that the improved disclosures that result are beneficial to shareholders.This Article offers a new approach to assessing the value of these claims by empirically testing the relationship between merger litigation and shareholder voting on the merger. If the supplemental disclosures produced by the settlement of merger litigation are valuable, they should affect shareholder voting behavior. Specifically, supplemental disclosures that are, in effect, “compelled” by settlement should produce new and unfavorable information about the merger and lead to a lower percentage of shares voted in favor of it. Applying this hypothesis to a hand-collected sample of 453 large public company mergers from 2005-2012, we find no such effect. We find no significant evidence that disclosure-only settlements affect shareholder voting.These findings warrant a reconsideration of Delaware merger law. Specifically, under current law, supplemental disclosures are viewed by courts as providing a substantial benefit to the shareholder class. In turn, this substantial benefit entitles the plaintiffs’ lawyers to an award of attorneys’ fees. Our evidence suggests that this legal analysis is misguided and that supplemental disclosures do not in fact constitute a substantial benefit. As a result, and in light of the substantial costs generated by public company merger litigation, we argue that courts should reject disclosure settlements as a basis for attorney fee awards.Our approach responds to critiques of merger litigation as excessive and frivolous by reducing the incentive for plaintiffs’ lawyers to bring weak cases, but it would have an additional benefit. Current practice drags state court judges into the task of indirectly promulgating disclosure standards in connection with the approval of fee awards. We argue, instead, for a more efficient specialization between state and federal courts in the regulation of mergers: public company merger disclosure should be policed by the federal securities laws while state corporate law focuses on substantive fairness.

Class Action Reform, Qui Tam, and the Role of the Plaintiff

This article uses the model of qui tam litigation as a tool to understand class action litigation. Starting with an examination of current class action practice, the article demonstrates how class actions have moved away from the format of traditional individual litigation. Departures from traditional procedural rules have been justified as deterring corporate misconduct, yet these departures are frequently criticized as reducing victim compensation and creating agency problems. The article goes on to consider proposals for class action reform. Existing reform proposals tend to take one of two forms: either they propose remodeling class litigation so that it more closely resembles traditional litigation, or they propose more dramatic departures from traditional procedural rules in order to enhance the deterrence effect of the class suit. The latter reforms, based on the private attorney general model, move class litigation closer to government enforcement litigation. A significant reason for the conflict between these approaches stems from disagreement about whether class actions should focus on victim compensation or deterrence of misconduct. The article argues that, before either approach to class action reform is adopted, class litigation should be understood as offering a third possibility: a hybrid litigation form that combines the attributes of the public and private models. Using the model of qui tam suits, the article attempts to break down the conceptual barrier between public and private litigation. Finally the article examines the implications of this approach. The article suggests that reconceptualizing class litigation as a hybrid offers the potential for coordinating the litigation efforts of the government and the private bar. In addition to creating potential litigation efficiencies, this model allows class litigation effectively to pursue both compensation and deterrence.

Does Majority Voting Improve Board Accountability

Directors have traditionally been elected by a plurality of the votes cast. This means that in uncontested elections, a candidate who receives even a single vote is elected. Proponents of “shareholder democracy” have advocated a shift to a majority voting rule in which a candidate must receive a majority of the votes cast to be elected. Over the past decade, they have been successful, and the shift to majority voting has been one of the most popular and successful governance reforms.Yet critics are sceptical as to whether majority voting improves board accountability. Tellingly, directors of companies with majority voting rarely fail to receive majority approval – even more rarely than directors of companies with plurality voting. Even when such directors fail to receive majority approval, they are unlikely to be forced to leave the board. This poses a puzzle: why do firms switch to majority voting and what effect does the switch have, if any, on director behavior?We empirically examine the adoption and impact of a majority voting rule using a sample of uncontested director elections from 2007 to 2013. We test and find partial support for four hypotheses that could explain why directors of majority voting firms so rarely fail to receive majority support: selection; deterrence/accountability; electioneering by firms; and restraint by shareholders.Our most dramatic finding is a substantial difference between early and later adopters of majority voting. The early adopters of majority voting appear to be more shareholder-responsive than other firms. These firms seem to have adopted majority voting voluntarily, and the adoption of majority voting has made little difference in shareholder-responsiveness going forward. By contrast, later adopters, as a group, seem to have adopted majority voting only semi-voluntarily. Among this group, majority voting seems to have led to more shareholder-responsive behavior.These differences between early and late adopters have important implications for understanding the spread of corporate governance reforms and evaluating their effects on firms. Reform advocates, rather than targeting the firms that, by their measures, are most in need of reform, instead seem to have targeted the firms that are already most responsive. They then seem to use the widespread adoption of majority voting to create pressure on the non-adopting firms. Empirical studies of the effects of governance changes thus need to be sensitive to the possibility that early adopters and late adopters of reforms differ from each other and that the reforms may have different effects on these two groups of firms.

The Role of Shareholder Primacy in Institutional Choice

An extensive body of empirical research evaluates corporate law in terms of its effect on shareholder wealth and, based on this effect, makes efficiency claims designed to influence regulatory policy. Central to these claims is the premise that the principal objective of the corporation is the maximization of shareholder wealth. By defining regulatory efficiency in terms of shareholder wealth, the literature relies on the shareholder primacy norm to equate shareholder value with firm value. This Article challenges both the positive and the normative foundations of the shareholder primacy norm. The Article demonstrates that existing legal doctrine does not require corporations to maximize shareholder wealth at the expense of other stakeholder interests. Although economic analysis offers a theoretical defense of shareholder primacy, its conclusions are based on strong and questionable assumptions about the market conditions in which the corporation operates. Finally, the Article explores and rejects the argument that shareholder primacy may be grounded in existing limits on management fiduciary duties, offering an alternative defense of those limits in terms of comparative institutional analysis. Justifying the evaluation of corporate performance in terms of shareholder wealth is critical to empirical claims of regulatory efficiency. The presence of other stakeholders, whose interests in the firm may be not reflected in an assessment of shareholder value, raises questions about efficiency analyses that do not incorporate those interests into their assessment of firm value. Alternative conceptions of firm value suggest that empirical scholars need to offer better and explicit justifications for their reliance on shareholder wealth and, more importantly, for their argument that shareholder wealth effects should dominate regulatory policy.

Making a Complex Investment Problem Less Difficult: Robo Target-Date Funds

Investing is a complicated affair, particularly for people with low financial literacy. Target-date funds are designed to make investing easy for pension participants. To simplify the employee’s decision, many defined contribution plans offer employees a target-date fund based on only one piece of data—the employee’s expected retirement date. The employee may be placed in a target-date fund as the default plan if the employee does not make an active choice. Target-date funds’ one-size-fits-all approach generally does not provide the appropriate level of risk for all employees who plan to retire in a given year. The authors address that issue in this article. Their proposal has three parts. First, they propose that target-date funds should allow greater personalization of investments by offering participants a conservative, moderate, and risky fund for each target-date. While pension participants currently have the option of choosing a more or less risky target-date fund by choosing a later or earlier target-date than their actual retirement date, many pension participants lack the sophistication to take advantage of that option. Second, they suggest that pension plans incorporate robo advisers to help participants identify the appropriate level of risk and appropriate target-date fund based on their personal circumstances. Third, they propose on-the-spot financial education, to be provided when a participant is selecting a target-date fund, to help participants understand the implications of risk level and target-date fund choice for both pension growth and the range of possible outcomes.

Investor Financial Literacy in the Workplace

The dramatic shift from traditional pension plans to participantdirected 401(k) plans has increased the decision-making responsibility of individual investors for their own retirement planning. With this shift comes increasing evidence that investors are making poor decisions in choosing how much to save for retirement and in selecting among their investment options. Studies question the value of efforts to improve these decisions through regulatory reforms or investor education. This article posits that deficiencies in workplace retirement savings cannot be adequately addressed until the reasons for poor investment decisions are better understood. We report the results of an exploratory study that asked subjects to complete a simulated retirement investment task and collected information about their financial knowledge and preferences. The study enabled us to measure financial literacy and evaluate its relationship to retirement investment decision-making. In line with existing research, we found a strong relationship between financial literacy and successful retirement investing. Our results suggest, however, that the relevant understanding in this context is not about math so much as it is a basic knowledge of the relative costs and benefits of the major investment categories. Finally, we present results suggesting that financial literacy is separate from investment preferences - specifically, that tolerance for risk is a separate and highly predictive variable in estimating retirement planning success. Our research suggests that individual employees are likely to lack the skills necessary to support the current regulatory model of participant-directed retirement investing. The structure and regulation of retirement plans ought to take this fact seriously. We explore the potential for investor education and professional advice, respectively, to overcome the limitations of individualized choice.