Corporate Governance by Index Exclusion
The Harvard Law School Forum on Corporate Governance and Financial Regulation 2019-06-12
Investors have long been unhappy with certain governance arrangements adopted by companies undertaking IPOs, such as dual-class voting structures. Traditional sources of corporate governance rules—the Securities and Exchange Commission, state law, and exchange listing rules—do not constrain these arrangements. As a result, investors have turned to a new source of governance rules: index providers.
Our recent article, forthcoming in the Boston University Law Review, provides a comprehensive analysis of index exclusion rules, their likely effects on insider decision-making, and their ability to serve as investors’ new gatekeepers. We show that efforts to portray index providers as the new sheriffs of the U.S. capital markets are overstated. Index providers face complex and conflicting interests, which make them reluctant regulators, at best. This reluctance to regulate is clearly reflected in the dual-class exclusion rules they adopted. We also analyze, theoretically and empirically, the efficacy of index exclusions in preventing disfavored arrangements and show that their efficacy is likely to be limited, but not zero (as some scholars argue). We conclude by examining the lessons from this important experiment and the way forward for corporate governance.
A more detailed overview of our analysis follows: