Nonfinancial Risk Disclosure and the Costs of Private Ordering

In 2016 the Securities and Exchange Commission (SEC) considered for the first time whether financial disclosure reform should address information on sustainability matters and other sources of nonfinancial risk. The resulting debate over these issues raised fundamental questions about how well the federal disclosure regime addresses emerging risks and about how well private ordering, through shareholder engagement, the work of private standard‐setters, and corporate voluntary disclosure, can fill the gaps. This article argues that the current model of nonfinancial risk disclosure, based largely on private ordering, is ineffective and undermines the SEC's mission to protect investors, facilitate capital formation, and promote fair, orderly, and efficient markets. This conclusion rests on evidence that the current state of sustainability disclosure is inadequate for investment analysis and that these deficiencies are largely problems of comparability and quality that cannot readily be addressed by private ordering. This article also highlights the costs of agency inaction to investors and to public companies, which have been largely ignored in the debate over the future of financial reporting. It concludes by proposing avenues for disclosure reform.     

Litigating Corporate Human Rights Information

This article analyzes trends in litigation brought against corporate actors regarding human rights information. Such information includes, but is not limited to, statements on packaging claiming that products are “ethically sourced” and investor-facing disclosures representing that an issuer's operations are environmentally friendly. It proceeds by outlining the sources of human rights-related disclosures as they arise under both legal and voluntary regimes. The article then addresses the case law. Recent years have seen an increase in lawsuits involving human rights information, or lack thereof, imparted by companies. Consumer protection or consumer fraud cases are being filed, alleging that companies have either provided false and misleading information or omitted information about corporate human rights impacts and mitigation efforts. Investors are filing similar claims. The article examines the trend and considers the role of this litigation both in holding companies to their word and in providing corporate accountability for the underlying human rights abuses that false or misleading human rights information may mask. It ultimately argues that, although success at trial in such cases remains elusive, litigation is a useful and potentially growing tool for holding companies to their word regarding human rights claims. It contextualizes this litigation, arguing that other means by which companies can be held to their word should be strengthened, including public enforcement and—potentially—new disclosure and due diligence laws.     

Rate increase disclosure and review: definitions of "individual market" and "small group market." Final rule

This final rule amends a May 23, 2011, final rule entitled "Rate Increase Disclosure and Review". The final rule provided that, for purposes of rate review only, definitions of "individual market" and "small group market" under State rate filing laws would govern even if those definitions departed from the definitions that otherwise apply under title XXVII of the Public Health Service Act (PHS Act). The preamble to the final rule requested comments on whether this policy should apply in cases in which State rate filing law definitions of "individual market" and "small group market" exclude association insurance policies that would be included in these definitions for other purposes under the PHS Act. In response to comments, this final rule amends the definitions of "individual market" and "small group market" that apply for rate review purposes to include coverage sold to individuals and small groups through associations even if the State does not include such coverage in its definitions of individual and small group market. This final rule also updates standards for health insurance issuers regarding disclosure and review of unreasonable premium increases under section 2794 of the Public Health Service Act.     

上市公司定期报告信息披露违法董事责任认定研究

中国证监会对上市公司信息披露违法案件中董事责任的追究,是遏制信息披露违法、促使上市公司规范运作的重要手段。中国证监会对上市公司定期报告披露违法的行政处罚案例的分析和整理表明:中国证监会在对董事行政责任中责任主体的认定、归责原则的确立、具体行为标准的产生和应用等方面,补充和完善了现有法律规定的不足,丰富了我国信息披露制度和上市公司治理规则。     

论专利申请人之现有技术披露义务

问题专利产生了严重的社会后果,提高专利授权质量具有迫切性。高质量的现有技术检索是提高专利授权质量的前提,这在专利申请数量巨大的背景下显得尤为重要。专利申请人及其代理人在专利审查过程中,应向专利审查部门依诚信原则披露其所知悉的、对申请案之可专利性具有关键性价值的参考资料。建立具有法律效力的现有技术披露义务符合专利制度的立法目的和利益平衡原则,节约现有技术检索的社会成本,从而保障专利审查中现有技术检索的质量。我国《专利法》第36条规定了该义务,但没有规定相应的法律后果。我国应通过立法和司法两方面来完善申请人的现有技术披露义务。     

论企业破产重整信息披露时间节点的规范与细化

企业破产重整中债权人与债务人利益的平衡依赖于破产法上的正当程序,知情权的实现是保障债权人等利害关系人利益的基本前提。本文通过对26家上市公司重整程序中的信息披露情况进行实证分析并结合制度比较后发现,目前我国企业破产法上关于重整程序中信息披露的时间没有明确的规定,在实践和立法上均存在不足。建议结合我国实际情况按照破产重整程序推进的逻辑完善我国破产法上信息披露制度,规范信息披露的时间节点,在重整程序启动前、重整计划草案表决前和重整计划执行三个阶段对信息披露的时间节点与内容进行规范与细化。     

The effect of state regulations on the quality and sale of insurance policies to Medicare beneficiaries

This paper examines the effects of state regulations on the quality of insurance policies sold to Medicare beneficiaries and on the amount of sales abuse reported in the sale of such policies. State regulations regarding such policies relate to policy content and format, minimum rates of return, sale of these policies related to disclosure requirements, consumer information activities, and penalties for agent and company abuse. This paper examines the impact of specific regulations on the ratio of the expected policy benefits per premium dollars and on the number and kind of abusive sales practices reported by purchasers and nonpurchasers in agent and mail sales. The study finds that loss ratio floors, minimum benefit standards, and the development of states of consumer information guides for prospective policyholders have a positive impact on the quality of the policies purchased. In addition, the study finds that the amount of abuse reported is less when insurance companies routinely issue press releases concerning agent or company misrepresentation and when consumer guides are developed and available from the state.     

Economic incentives for the self-regulation of the release of price-sensitive information

Companies, as primary disseminators of information, and financial institutions, as major recipients, have economic incentives to self-regulate the transmission and usage of price-sensitive information. These include increased (lost) reputation costs and adverse share price penalties arising from poor management of information disclosure. The economic motivation for self-regulation is seen as conceptually linked to but distinct from legislative changes. Self-regulation has the strong support of economic efficiency arguments, whereas recent additional new legislative changes do not. This article examines a major corporate and institutional response to the new regulatory climate—to internalize part of the regulatory process during their regular relationship communications. Relationships between the case companies and institutions already exist for transaction purposes. They are used as a convenient and low-cost means to pursue self-regulation and to avoid errors of price-sensitive information release. This self-regulatory process is illustrated using case material. It is clear from the response pattern presented that the development of a self-regulatory framework by the parties has been an iterative one. The corporate and institutional systems that have been evolving seem to be significantly influenced by the regulatory trends. The regulatory changes appear to have played a role in increasing market costs incurred by those companies with poor stock market communication practices. The article ends by arguing that new proposals to change in the formal regulatory system should recognize that further legislation is unlikely to improve the poor prosecution record. Nevertheless, legislative changes can combine with and buttress the self-regulation process to create an effective regulatory system.     

上市公司自愿性信息披露的法律规制

上市公司自愿性信息披露是强制性信息披露的有效补充，上市公司基于寻求信息租金的逐利性考虑，存在进行自愿性信息披露的动机。由于立法不够健全和上市公司自身存在的问题，我国上市公司自愿性信息披露还存在着较多不规范性问题，因此，从立法、执法、司法等角度对上市公司自愿性信息披露进行鼓励、保护和监管是有效引导上市公司自愿性信息披露有效运作的制度条件。     

论银行卡信息披露的法律规制

对银行卡信息披露进行法律规制,不仅是保护持卡人合法权益的需要,也是银行卡产业健康发展的需要。美国、澳大利亚等国的法律为我们提供了很好的经验。我国应当借鉴国外的经验,对银行卡信息披露作出强制规定,不仅要明确规定银行卡信息披露的时间、内容和方式,而且更要明确界定违反信息披露义务应承担的法律责任。     

上市公司信息披露对个体投资者行为的影响——基于行为金融的实验研究

在假设我国股票市场中的个体投资者存在非理性的前提下,运用实验研究方法,考察上市公司信息披露对个体投资者投资行为的影响程度。从中发现:个体投资者存在着过度自信的心理,对上市公司信息披露的关注和敏感度不高;从上市公司财务和非财务信息披露的影响来看,个体投资者受前者的影响更显著一些,但不存在过度反应,而对后者则反应不足。这表明应进一步完善我国上市公司的信息披露制度,以尽快得到广大个体投资者的认可。     

The Development of EU Case‐Law on Age Discrimination in Employment: ‘Will You Still Need Me? Will You Still Feed Me? When I'm Sixty‐Four’

This article addresses the development of age discrimination law in the Court of Justice and concludes that there is a marked difference in the level of discretion given to Member States in cases relating to mandatory retirement policies. The article will critique the approach of the Court of Justice to the legitimate objective test and the proportionality test in retirement cases. It will also argue that the decisions of the Court of Justice to date have all involved cases with very similar factual scenarios, and the article hypothesises how a different conclusion might be reached in cases with different factors. It also considers the impact of the Charter of Fundamental Rights on such cases. The article concludes by arguing that mandatory retirement policies may no longer be compatible with EU law and that there is a need to move towards more flexible retirement policies.     

我国政府过程性信息公开的困局与纾解

在我国。政府过程性信息是否公开随着个案的陆续出现引发了较大的争议,相关立法、行政机关、司法机关对此存在着不同的判断。在城外一些国家信息公开的立法与实践中,均对过程性信息的公开有着充分的考虑和细致的制度规定,值得我国借鉴。为平衡公众知情权与行政机关的行政权。我国信息公开立法应将政府过程性信息列入免于公开的范围,但须制定公共利益的特别裁量标准,如公共政策的制定等影响面较大的政府行为,应最大程度地将政府过程性信息公开。     

Regulatory Disclosure of Offending Companies in the Dutch Financial Market: Consumer Protection or Enforcement Publicity?

Regulatory disclosure of names of offending companies is increasingly popular as an alternative to traditional command and control regulation. The goals and intended effects of disclosure are not always clear, however. Do regulators wish to increase their transparency, or do they intend to name and shame? This article aims to contribute to a better understanding of the underlying working mechanism of regulatory disclosure of offenders' names through a case study of the Dutch Authority for Financial Markets' disclosure policy. It distinguishes two types of disclosure strategies: consumer oriented and firm oriented. The case study shows that although informing consumers was the primary purpose of disclosure as intended by the Dutch legislature, the purpose in practice has shifted to informing companies about the regulators' enforcement policy. The nature of the disclosed information makes it unlikely that disclosure adequately prevents financial risk taking by consumers. Instead of empowering consumers, disclosure has been incorporated in a traditional deterrence logic, turning out not to be an example of new governance but instead a modern version of command and control enforcement publicity.     

Hackers Are After More than Just Data: Will Your Company's Property Policies Respond When Cyber Attacks Cause Physical Damage and Shut Down Operations?

Recent attention on high profile data breaches has overshadowed a potentially greater risk: cyber attacks on large industrial companies causing physical damage, potentially releasing contaminants, and shutting down operations. A handful of publicly reported cyber-attacks, including explosions at an oil pipeline and a steel mill, have highlighted the potential vulnerability of these companies' internet-facing industrial control systems to hackers. The insurance industry has reacted to the growing risk of privacy-related data breaches by marketing and selling so-called “cyber policies.” But these policies typically exclude coverage for property damage and are ill-suited to cover the magnitude of business interruption losses that could result from an extended shutdown of a large industrial operation. That leaves policyholders to look to their traditional property policies. This article examines the cyber-attack risk that large industrial companies face and how those companies' traditional property insurance policies may help mitigate that risk.     

Working women making it work: intimate partner violence, employment, and workplace support

Partner violence may have significant consequences on women's employment, yet limited information is available about how women cope on the job with perpetrators' tactics and the consequences of her coping methods on employment status. This article investigates whether there is an association between workplace disclosure of victimization and current employment status; and whether there is an association between receiving workplace support and current employment status among women who disclosed victimization circumstances to someone at work. Using a sample of partner victimized women who were employed within the past year (N = 485), cross-tabulation and ANOVA procedures were conducted to examine the differences between currently employed and unemployed women. Binary logistic regressions were conducted to examine whether disclosure and receiving workplace support were significantly associated with current employment. Results indicate that disclosure and workplace support are associated with employment. Implications for clinical practice, workplace policies, and future research are discussed.     

Regulating through information: disclosure laws and American health care

Efforts to reform the American health care system through direct government action have failed repeatedly. Nonetheless, an alternative strategy has emerged from these experiences: requiring insurance organizations and health care providers to disclose information to the public. In this Article, Professor Sage assesses the justifications for this type of regulation and its prospects. In particular, he identifies and analyzes four distinct rationales for disclosure. He finds that the most commonly articulated goal of mandatory disclosure laws--improving the efficiency of private purchasing decisions by giving purchasers complete information about price and quality--is the most complicated operationally. The other justifications--which he respectively terms the agency, performance, and democratic rationales--hold greater promise, but make different, sometimes conflicting assumptions about the sources and uses of information. These insights have implications not only for health care, but also for other regulated practices and industries.     

Collateral Attacks on Convictions (I): The Probability and Intensity of Filing

In the beginning of the 1970s the increased activity of filing collateral attacks on criminal convictions (postconviction petitions) made by prisoners in an effort to modify either the conviction or the sentence generated concern about the additional burdens imposed on the courts. This article is the first report of a study undertaken to quantify and analyze postconviction filings and their eventual disposition under various procedures, as reflected by the variety of procedures and degrees of accessibility to the courts in the states of Illinois, California, Texas, and Colorado. The present article describes and analyzes postconviction filing activity for these four states in terms of the probability of filing; the frequency of filing (the mean number of filings per filer and the number of filings per thousand prisoners); how long after incarceration filing took place; and patterns of filing over time. It is shown that contrary to widespread belief the notion that "every prisoner files" is not justified. The author concludes that the perceived high number of collateral attacks, not necessarily supported by the figures, stems from a large number of filings (except for Illinois) generated by a small proportion of prisoners. The author points out that modifications of the petitioning process can have a significant effect on the rate of filing and suggests changes in regulations that are likely to reduce the total number of petitions.