I’m delighted to report that the Liberty Fund has produced a three-volume collection of my dad’s oeuvre.  Fred McChesney edits, Jon Macey writes a new biography and Henry Butler, Steve Bainbridge and Jon Macey write introductions.  The collection can be ordered here.

Here’s the description:

As the founder of the Center for Law and Economics at George Mason University and dean emeritus of the George Mason School of Law, Henry G. Manne is one of the founding scholars of law and economics as a discipline. This three-volume collection includes articles, reviews, and books from more than four decades, featuring Wall Street in Transition, which redefined the commonly held view of the corporate firm.

Volume 1, The Economics of Corporations and Corporate Law, includes Manne’s seminal writings on corporate law and his landmark blend of economics and law that is today accepted as a standard discipline, showing how Manne developed a comprehensive theory of the modern corporation that has provided a framework for legal, economic, and financial analysis of the corporate firm.

Volume 2, Insider Trading, uses Manne’s ground-breaking Insider Trading and the Stock Market as a framework for many of Manne’s innovative contributions to the field, as well as a fresh context for understanding the complex world of corporate law and securities regulation.

Volume 3, Liberty and Freedom in the Economic Ordering of Society, includes selections exploring Manne’s thoughts on corporate social responsibility, on the regulation of capital markets and securities offerings, especially as examined in Wall Street in Transition, on the role of the modern university, and on the relationship among law, regulation, and the free market.

Manne’s most auspicious work in corporate law began with the two pieces from the Columbia Law Review that appear in volume 1, says general editor Fred S. McChesney. Editor Henry Butler adds: “Henry Manne was an innovator challenging the very foundations of the current learning.” “The ‘Higher Criticism’ of the Modern Corporation” was Manne’s first attempt at refuting the all too common notion that corporations were merely devices that allowed managers to plunder shareholders. Manne saw that such a view of corporations was inconsistent with the basic economic assumption that individuals either understand or soon will understand the costs and benefits of their own situations and that they respond according to rational self-interest.

My dad tells me the sample copies have arrived at his house, and I expect my review copy any day now.  But I can already tell you that the content is excellent.  Now-under-cited-but-essential-nonetheless corporate law classics like Some Theoretical Aspects of Share Voting and Our Two Corporation Systems: Law and Economics (two of his best, IMHO) should get some new life.  Among his non-corporations works, the classic and fun Parable of the Parking Lots (showing a humorous side of Henry that unfortunately rarely comes through in the innumerable joke emails he passes along to those of us lucky enough to be on “the list”) and the truly-excellent The Political Economy of Modern Universities (an updating of which forms a large part of a long-unfinished manuscript by my dad and me) are standouts.  And the content in the third volume from Wall Street in Transition has particular relevance today, and we would all do well to re-learn the lessons of those important contributions.

The full table of contents is below the fold.  Get it while it’s hot! (more…)

What is the proper role for judges in deciding how much investment advisers to mutual funds should be compensated? This is the question the Supreme Court will answer in Jones v. Harris Associates, argued last month. At first, the question seems silly: courts don’t get a say in how much I get paid or how much (beyond the minimum wage) I pay our nanny, so why would they have any say here.

The difference between my pay and that of investment advisors is that there is a statute – section 36(b) of the Investment Company Act of 1940 – that obligates investment advisors under a “fiduciary duty with respect to the receipt of compensation for services.” The justification for the statute was a belief that the corporate structure of mutual funds, where the investment advisor appoints the board of the fund, which in turn is supposed to negotiate with the advisor over its compensation, is insufficient to generate the arm’s length bargaining that I have with our nanny or the University has with me. It is as if I appointed the Trustees of the University, and then they had as their first job deciding how much to pay me.

Unfortunately, the statute’s command is ambiguous – what does having a fiduciary duty mean for the proper judicial role? The prevailing view, until last year, was set forth in a 1982 case from the Second Circuit. The so-called “Gartenberg test” required courts to weigh numerous factors to determine whether the pay of investment advisors was reasonable. Lawyers, of course, love this test. All work-a-day lawyers, regardless of side, love multi-factor tests because they generate uncertainty and therefore fees. Not surprisingly, this generates an agency cost between lawyers and their clients, which may explain in part why no lawyers in the Supreme Court litigation argued to affirm the Seventh-Circuit opinion, which rejected the Gartenberg test.

As I show in a new paper, the Gartenberg standard has generated several hundred cases over the past two decades, costing several billion dollars. Shockingly, plaintiffs have never won once. They are 0 for 150 in cases resulting in reported decisions. Nevertheless, tens of cases are filed each year in an attempt to extract money (up to the costs of defending the litigation) from advisers. This might not be an inefficient result if the litigation is serving a deterrence function, but I show in the paper that the statute’s limit on the damages that can be paid in this litigation and the size of fees relative to the costs of litigation make this an impossibility. There is, in short, absolutely no economic justification for Gartenberg and private litigation about fees.

Perhaps based on this kind of economic analysis, Judge Easterbrook rejected Gartenberg, holding that a fiduciary duty means being transparent and playing no tricks, something not sufficiently alleged by plaintiffs in Jones. This is the approach state courts, for example, in Delaware, take when enforcing the fiduciary duty of corporate managers with respect to the pay they receive. Courts don’t balance factors to determine whether Jeffrey Immelt is paid too much, they look only at the pay-setting process and for unremedied conflicts of interest. This seems like the most sensible reading of the statute, but the simple economic analysis I do in the paper shows that there is another reason for the Court to reject Gartenberg.

A final observation is another reason why no parties before the Court defended Judge Easterbrook’s opinion. As noted above, agency costs is one explanation. Another is fear of change. Although defendants and the mutual fund industry might prefer avoiding the tax imposed on them by Gartenberg, I show that the dollar amounts of the tax are very small relative to the fees advisers earn. Moreover, a decision by the Court affirming Easterbrook might generate a legislative response (note: highly paid Wall Street types aren’t so popular on Capitol Hill these days), and the new statute might be much worse than the prevailing interpretation of section 36(b). In short, better Gartenberg than Barney Frank. The Court therefore did not hear the full story when the parties argued the case. The plaintiffs lawyers had their say, the defense lawyers and the industry had their say, but investors, the ones who ultimately pay the tax or what amounts to a useless wealth transfer to lawyers, did not.

The W$J ran a story earlier in the week on mutual fund voting (see here). The story reported on the somewhat old news that academic research has “found no evidence of fund companies tailoring their votes to specific business relationships,” contrary to earlier claims by shareholder activists. The article is nonetheless of interest because it describes the varying processes mutual fund companies use in deciding how to vote.

One thing I’ve found puzzling about mutual fund voting is that the SEC requires fund investment advisers to vote the shares in the portfolios they manage. The SEC asserts that “[t]he duty of care requires an adviser with proxy voting authority to monitor corporate events and to vote proxies.” This requirement has more or less spawned the proxy advisory industry and the attendant fees paid by mutual funds to ISS, Glass Lewis and the like for their voting advice. In my mind a specific fiduciary duty to vote is foolish. Certainly, the voting of proxies by mutual fund managers should be subject to the duty of care and loyalty. But a fund manager should be free to decide that it’s in the best interest of a fund for the manager to not to spend the time and money involved in voting. At least a fund manager should be able to disclaim the fiduciary duty to vote by saying as much in the fund prospectus. Personally, I would rather a fund not spend money on proxy advisers or voting thereby reducing fund expenses. I’m in complete agreement with the sentiment expressed in the article–if a fund manager does not agree with a company’s direction, they should either not invest or sell as opposed to attempting to change the direction of the company through voting. As for index funds that don’t have this luxury, I don’t care. I invest in these funds to get the market return. I don’t want to pay higher expenses in the event the index fund manager decides to engage in shareholder activism. Leave it to the hedge funds and keep my expense ratios low.

According to this WSJ article, Google has asked the SEC to declare that Google is not an “investment company” and therefore not subject to the Investment Company Act of 1940. This seems like an odd request, but it highlights the broad sweep of the definition of investment company. Section 3(a)(1)(C) of the ICA provides that an investment company is any issuer “engaged . . . in the business of investing, reinvesting, owning, holding, or trading in securities, and owns or proposes to acquire investment securities having a value exceeding 40 percentum of the value of such issuer’s total assets (exclusive of Government securities and cash items) on an unconsolidated basis.” The problem for Google is the “owning” language. Google currently owns about $5.8 billion in marketable securities and has total assets of $14.4 billion. Hence, it’s right at the 40% threshold. Google also has $4 billion in cash, some of which it would like to invest in marketable securities . However, moving cash to securities would result in in Google blowing through the 40% threshold, thus the exemption request. Both Microsoft and Yahoo! have faced the same issue in the past and filed exemption requests which the SEC granted.

The Investment Company Institute (ICI), the mutual fund industry trade organization, recently published a survey entitled “Understanding Investor Preferences for Mutual Fund Information.� Click here for the survey and here for an ICI press release with highlights of the survey. Here’s some the findings:

• Mutual fund investors focus primarily on fees, historical performance, and risk when purchasing funds.
• Recent fund investors make little use of prospectuses or shareholder reports. Around two-thirds of investors did not consult fund prospectuses or shareholder reports in making their purchase decisions.
• Few investors reviewed information about a fund’s portfolio manager (25 percent), proxy voting policies (15 percent) or board of directors (15 percent).

These findings are not surprising to me as I would be in the majority on each one.

The survey also includes several findings that go to internet usage by mutual fund investors, mainly, that they have ready access, are comfortable using it, and use it frequently. It’s obvious that these findings are directed at the SEC. The mutual fund industry wants the SEC to adopt the “access equals delivery model� for mutual fund materials. Under the model, a fund can meet delivery requirements by posting materials on the web and notifying investors of their availability instead of mailing hardcopies. The SEC recently adopted the model for prospectus delivery and has proposed a rule applying it to proxy materials. Investment companies, however, are specifically excluded from coverage.

I’m in favor of extending the model to mutual funds. As I’ve said before, hardcopy distribution requirements are simply inefficient and wasteful in the internet age. Further, as the ICI survey points out, few investors even look at mutual fund prospectuses or shareholder reports. Switching to the model will result in cost savings for the funds.  These savings will presumably be passed on to investors, especially given investor focus on fund fees as demonstrated by the survey.

John Bogle, the founder of the Vanguard mutual fund company and pioneer of indexing has launched a blog called The Bogle Blog. I’ve long been a Bogle fan and have owned shares in Vanguard’s S&P 500 index fund for over a decade. Welcome to the blogosphere Mr. Bogle!

I recently published an article on section 36(a) of the Investment Company Act of 1940. Section 36(a) provides a federal cause of action for “a breach of fiduciary duty involving personal misconduct in respect of any registered investment company� by an officer, director, investment adviser, or principal underwriter of an investment company, among others. Although the article is dated October 2005, it did not actually come out until two months ago. Hence, I was pleased to discover today that a court has already cited it (S.E.C. v. Treadway, Slip Copy, 2006 WL 1293499, S.D.N.Y.); that is, until, I read this part of the courts opinion:

One commentator has suggested that “involving personal misconduct” should be interpreted to incorporate the substance of the business-judgment rule–an enumerated party under section 36(a) is not liable for what turns out to be a bad business decision as long as the party made the decision “on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.” William K. Sjostrom, Jr., Tapping the Resevior: Mutual Fund Litigation Under Section 36(a) of the Investment Company Act of 1940, 54 U. Kan. L.Rev. 251, 302 (2005) (quoting Aronson v. Lewis, 473 A.2d 805, 812 (Del.1984)). One court in this district has found that the business judgment rule applies to claims under Section 36(b) of the Investment Company Act, which imposes a fiduciary duty with respect to investment advisers’ compensation, against an investment company’s independent directors. See Reserve Mgmt. Corp. v. Anchor Daily Income Fund, Inc., 459 F.Supp. 597, 611 (S.D.N.Y.1978). Although Sjostrom’s effort to fill the interpretive gap is well-intentioned and well-argued, it fails to account for the fact that the benefit of the business judgment rule is ordinarily extended only to disinterested and independent parties.

As a corporate law professor, I obviously know that the BJR can be rebutted by proving a director has a conflict of interest, etc. I mention this in my article and was not trying to suggest it should be any different in the context of 36(a). So there was no reason for me to “account for the factâ€? because I was not arguing otherwise. Unfortunately, it looks like the court misinterpreted (or perhaps defense counsel purposely misinterpreted) this part of my article. But at least the court said the article was “well-argued.”

Now available on the SEC’s website is a transcript of a April 27, 2006 speech by SEC Commissioner Paul Atkins given to the Investment Adviser Association. There’s nothing particularly surprising in the speech given Atkins’ well-publicized opposition to many of former Chairman Donaldson’s initiatives, but it is still a good read.

In particular, he focuses on the mutual fund rule requiring independent chairmen and 75% independent boards. Here’s a quote:

To be honest, the tortured history of this rule is quite a curiosity for me. It is an unlikely subject of such a pitched battle. Its proponents have praised it as being the supposed “centerpiece” of the SEC’s regulatory scheme for mutual funds. But, as the court of appeals has now pointed out twice to the SEC, the agency has failed to take an honest look at the costs and benefits of the rule, as the law requires us to do. Never mind that some of the more egregious offenses in the late-trading and market-timing scandals occurred at funds with independent chairmen and 75% independent boards. Never mind that the rule is inherently anti-competitive in that its burdens fall especially heavily on start-ups, who have a harder time coaxing and paying non-affiliated people to serve on boards, much less to commit the time necessary to serve as chairman. (more…)

Today’s W$J has an article detailing tech oriented measures being pushed at the SEC by Chairman Cox. These measures include:

• Offering incentives to companies to disclose financial information in a way that tags various pieces of data — such as revenue, profit margins and reserves — so that investors can compare companies against each other and across industry groups.

• Weighing the creation of a new benchmark that would allow investors to evaluate mutual funds’ performances after taxes and fees, akin to the auto miles-per-gallon results calculated by the Environmental Protection Agency.

• Proposing to allow companies to bypass paper forms entirely for shareholder votes — unless specifically requested by an investor — and to post proxy statements and the like on a Web site.

The article notes that the measures “are tweaked to reflect Mr. Cox’s free-market view that financial markets armed with information can discipline companies, an alternative to government regulation.â€? But under a free-market view, is there even a need for the first two measures? Specifically, doesn’t the market already provide convenient means to compare companies and mutual funds? For example, for access to various analytical tools, research reports, etc. that allow you to compare companies, just open an account at E*Trade.com. As for mutual funds, see Morningstar.com. If investors want more information than is being provided at these and other sites, won’t the market respond accordingly?

I’m certainly in favor of the SEC making it easier for the market to respond by, for example, improving EDGAR to allow companies to make their filings more user friendly, if the companies so choose (and maybe this is all Cox has in mind; the article isn’t clear on this point). However, I’m dubious of the government mandating a specific format for disclosure or a specific auto miles-per-gallon calculation for mutual funds. As Geoff has pointed out, disclosure requirements have costs beyond implementation. Bottom line: Let the market handle it.

A recent W$J article reports that a number of mutual funds have amended their fund investment policies to allow the funds to engage in hedge-fund-like investment strategies such as the use of derivatives, leverage and short-selling.  I think this is a favorable development because it increases the types of investment options available to everyday investors.  Others may not see it this way: 

[S]ome analysts and financial advisers caution that when traditional mutual funds adopt alternative investment strategies, it could bring added risk and higher fees.  Some advisers also fear that mutual funds may be rushing into a hot strategy just as hedge funds’ performance is beginning to cool.

The “added risk� and “higher fees� criticism seems little more than a statement of the obvious.  Alternative investments, by their nature, are more risky and involve higher fees.  What really matters though is whether a fund’s net risk-adjusted return beats the applicable benchmark.

It should be noted that even with appropriate changes to mutual fund investment policies, mutual funds cannot engage in various strategies to the same extent hedge funds can.  This is because mutual funds are subject to regulations under the 1934 Act and the Investment Company Act (ICA) (among others); hedge funds are not.  These regulations include, for example, limitations on margin borrowing and investing in restricted securities.  Interestingly, the ICA empowers the SEC to adopt limitations on short-selling and margin borrowing specifically for investment companies, but to date it has not.  Look for the SEC to do so if any of these hedge-fund-like mutual funds implode.

Today’s W$J has an article about mutual fund name changes entitled “The Bull Market in Mutual-Fund Name Changes.” Last year 719 funds changed their names, up from 505 the year before. Some name changes are the result of acquisitions. For example, following the acquisition of various Strong mutual funds, Wells Fargo changed their names to include “Wells Fargoâ€? instead of “Strongâ€? (this was a no-brainer as Strong was embroiled in the mutual fund trading scandal). Many name changes, however, are pure marketing moves. For example, Merrill Lynch is re-branding its funds as Princeton Portfolio Research & Management “because it wants brokers outside the Merrill network to feel more comfortable selling the funds.â€?

A name change can attract new investors to a fund. According to the article:

A 2003 academic study that looked at funds in the “growth,” “value,” “small” and “large” categories found that funds that had changed their names over the years reviewed attracted 22% more money than other funds of a similar size and investment strategy that didn’t change their names. These flows are concentrated in funds that made a name change that is in line with a popular investment style, because investors tend to associate good performance with these names. (more…)