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Template:GMSLA compensation for mismanagement: Difference between revisions
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===Retrospective compensation for corporate mismanagement=== | ===Retrospective compensation for corporate mismanagement=== | ||
An interesting question arises as to whether settlements or judgments reflecting corporate malfeasance by issuers of {{gmslaprov|Loaned Securities}} or {{gmslaprov|Collateral}} — and which manifest themselves in compensation payments to shareholders of record as of a certain date (and which falls during the term of a {{gmslaprov|Loan}}) — qualify as “{{gmslaprov|Income}}” under the {{gmsla}} that must be manufactured back to the {{gmslaprov|Lender}}. | An interesting question arises as to whether settlements or judgments reflecting corporate malfeasance by issuers of {{gmslaprov|Loaned Securities}} or {{gmslaprov|Collateral}} — and which manifest themselves in compensation payments to shareholders of record as of a certain date (and which falls during the term of a {{gmslaprov|Loan}}) — qualify as “{{gmslaprov|Income}}” under the {{gmsla}} that must be [[Manufactured payments in respect of Loaned Securities - GMSLA Provision|manufactured]] back to the {{gmslaprov|Lender}}. | ||
Such disputes can take years — decades even — to iron out, can take any number of different forms and, if viewed as {{gmslaprov|Income}}, represent a significant tail risk in a {{gmslaprov|Borrower}}’s trading book. | Such disputes can take years — decades even — to iron out, can take any number of different forms and, if viewed as {{gmslaprov|Income}}, represent a significant tail risk in a {{gmslaprov|Borrower}}’s trading book. | ||
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On one hand, the definition of {{gmslaprov|Income}} is very wide: | On one hand, the definition of {{gmslaprov|Income}} is very wide: | ||
{{Template:GMSLA 2010 Income}} | ''{{Template:GMSLA 2010 Income}}'' | ||
On the other hand — and it pains me somewhat to lay some {{t|Latin}} on you, but I will — the [[ejusdem generis]] rule of interpretation says where general words (here, “distribution of [[Any type, kind or nature|any kind whatsoever]]”) follow specific words (“[[Dividend - Equity Derivatives Provision|dividends]], [[interest]]”), the general words are cover only objects similar in nature to those specific words. So the distribution should be of the same nature as interest or dividends. | On the other hand — and it pains me somewhat to lay some {{t|Latin}} on you, but I will — the [[ejusdem generis]] rule of interpretation says where general words (here, “distribution of [[Any type, kind or nature|any kind whatsoever]]”) follow specific words (“[[Dividend - Equity Derivatives Provision|dividends]], [[interest]]”), the general words are cover only objects similar in nature to those specific words. So the distribution should be of the same nature as interest or dividends. | ||
So, is a court-mandated compensation for | So, is a court-mandated compensation for historic corporate malfeasance “of the same nature” as voluntarily declared [[Dividend - Equity Derivatives Provision|dividend]], intended by its [[issuer]] to reflect its own satisfactory stewardship of the corporation’s commercial affairs? The [[JC]] would argue that it is not. Quite the opposite, in fact: if we take it as read that one borrows {{gmslaprov|securities}} to [[Short sell|short-sell]] them in the market we see that the [[short-seller]]’s exact view is that the {{gmslaprov|securities}} are overvalued: this is consistent with the theory that their issuer is mismanaging the company. | ||
The [[Short sell|Short-seller]] bets that the truth will eventually come out and, when it does, the {{gmslaprov|securities}} will fall in price. It can then buy them back, take a profit, and deliver them back to the {{gmslaprov|Lender}}. | |||
It can't be right that a [[Short sell|short-seller]] who is ''so'' right that such an issuer is actually breaching its fiduciary duties to its shareholders, that it is not entitled to benefit from its bet. Why must it compensate the {{gmslaprov|Lender}} in an extreme case, but not in an ordinary one? | |||
True, true, this puts the poor {{gmslaprov|Lender}} in a sorry spot. Because it has lent the securities by [[title transfer]], it is not on the share register as of the {{gmslaprov|Income Record Date}}, so however you characterise that compensation payment, it can’t claim it from ''anyone''. | |||
“The deal”, it will argue, “is that the {{gmslaprov|Borrower}} should put me in the position I would have been in had I continued to hold the shares myself. ''I'' wasn’t expressing a view here. I stayed long the economic exposure of the {{gmslaprov|securities}}. All I wanted was a lending fee.” | |||
It is hard not to be sympathetic about this. Were the {{gmslaprov|borrower}} to have held the securities, it might even be prepared to make an ''ex gratia'' payment on the basis that it was a windfall: it knew the company was rubbish and made its money on the short sale. But there’s the rub: The borrower ''didn’t'' hold the shares. It ''sold'' them. That is why it Borrowed them in the first place. So the {{gmslaprov|Borrower}} is in no better place to claim that compensation from the Issuer than the {{gmslaprov|Lender}}. | |||
However you look at it, there’s a loser here. But remember this is essentially a windfall payment — some public-spirited activist hedge fund<ref>What? What?</ref> has jemmied some extra cash out of a reluctant issuer. Had it not done so no one would have been any the wiser. | |||
===A more sober legal argument=== | |||
That is what JC the bon viveur might say, over a bottle of claret, when (as often it does, after dinner in the Contrarian house) the subject of corporate malfeasance comes up in polite conversation. It is all very gnomic. So let us put it in better shape, for the more literal minded: | |||
*The definition of “{{gmslaprov|Income}}” in respect of shares is restricted to [[dividend]]s and distributions of an analogous nature: unconditional payments payable to all shareholders under their shares ''pro-rata'' to reflect a distribution by the issuer following the profitable operation of the business. | |||
*Compensation paid by a company as a result of misstatements of its books, leading to mispricing of its shares on public exchanges, is not “{{gmslaprov|Income}}” on {{gmslaprov|Securities}} under the {{gmsla}}.<ref>Or much less a “{{eqderivprov|Dividend}}” as contemplated by the {{eqdefs}}, for that matter.</ref> Indeed, it does not arise under the contract that comprises the shares at all. | |||
*“[[Income]]” is defined as meaning “any interest, dividends or other distributions of any kind whatsoever with respect to any {{gmslaprov|Securities}} …”: | |||
*“[[with respect to]]”: In the context of a securities lending arrangement, Income can only relate to payments made ''under the terms of the {{gmslaprov|Securities}} themselves''. That is, payments made by the issuer, to shareholders, ''in their capacity as shareholders''. That is, [[dividend]]-like payments: rewards to all shareholders on the income record date ratably for the prudent management and healthy profitability of the company in general. | |||
*Payments under a court settlement for [[negligent misstatement]] of public accounts are ''not'' payable ratably to all current shareholders, but only to those who bought or sold (or did not buy or sell) in reliance on the statement. Nor do they reflect the company’s good management. They are made to specific investors, as compensation for misrepresentations which may have influenced their decisions with regard to their shareholding (to buy, or not to sell). In the case of “buyers”, these representations may have been made when they were not shareholders. | |||
*Compensation therefore addresses [[tortious]] — i.e., non-contractual — claims for [[negligent misstatement]]. The claimant’s purchase, or holding and non-sale of securities in reliance on the statement is relevant to its measure of loss, but does not define the nature of the wrong (being the misstatement itself). | |||
*“any securities”: bolstering this — though possibly almost into “the lady doth protest too much” territory — income to be manufactured should be available ''[[pari passu]]'' to all shareholders of the same class that is subject to the stock loan. The distribution must be “…with respect to any {{gmslaprov|Securities}} … ”, not just ''some'' of them. The contract cannot function otherwise. | |||
*Unconditional: “Income” describes unconditional payments made to all holders of record as of the Income record date without any conditionality or [[consideration]] attaching to it. Participation in a private settlement obliges a claimant to take positive action and waive rights it might otherwise have to take action against the company. | |||
*Therefore, this is not a claim in contract under the {{gmslaprov|Securities}} themselves: as a matter of basic principle, negotiable instruments of a given ISIN are necessarily fungible: their intrinsic rights must be identical. A payment to owing to some, but not other shareholders, cannot be a direct function of share ownership itself. That the payment arises independently of entry on the share register and is not available to all shareholders means it must be due as a result of the issuer’s breach of a correlative duty it owed to some particular investors (and potential investors) but not others. | |||