Search results

An emerging stream of research has identified critical events as spikes in societal interest that increase public attention to firm behavior and can function as exogenous triggers for change. With respect to misconduct, firms vary considerably in how they respond to critical events, and for a visible change in their undesirable behavior to transpire, there needs to be ongoing accumulation of work by social-control agents. While social-control agents are often boundedly rational in their decision-making, most studies have overlooked the ability of critical events to restrict or redirect collective attention among such agents. Drawing on the case of a regulatory agency’s enforcement actions against violations of anti-money laundering regulations by three European banks, we investigate the influence of critical events on social-control agents’ enforcement behavior. This study achieves two goals: first, we identify three types of fieldwide critical events that influence social-control agents’ behavior, and second, we demonstrate that these events may shape the regulatory environment in which firms operate, thus allowing for different organizational responses to enforcement actions. Our findings contribute to the literature on critical events and organizational misconduct.

While fighting with the novel coronavirus will not be the main goal of sectoral regulators, different regulatory authorities join the struggle by providing a regulatory response. The purpose of this paper is to address this regulatory response in pandemic gathered around eight thematic areas.

This paper discusses the regulatory response in pandemic gathered around eight thematic areas, namely, the objectives, rules and standards, authorization and permits, procedure, monitoring and surveillance, enforcement, accountability and an institution presenting regulatory actions to tackle coronavirus (COVID-19) in reference to day-watchman type regulation.

Tackling the COVID-19 pandemic should be a knowledge-based approach (taking as much as possible from best available practices with respect to the novel coronavirus) with a framework of rules, standards, authorization, permits and guidance, monitored and enforced in a way adjusted to conditions of the pandemic, being as safe (as non-physical, as online) as possible, with suspended or extended deadlines, free of unnecessary administrative burdens. In this way, regulation should be pragmatic and flexible, as under the day-watchman model.

In a post-pandemic regime, in the short run, the regulators should try to minimize the social and economic challenges faced by consumers and entrepreneurs. Among them, one may find scaling back, at least temporarily, the rules developed in non-disaster contexts. However, in the end, the post-disaster reforms tended to strengthen regulators’ hands, also under the deregulated government. The day-watchman type regulation balances both, as a middle ground approach, being a bridge between “a total subordination” and “a complete release.”

The disaster management (including public law regulation) provided by public authorities when tackling the effects of hurricanes, earthquakes or tsunamis can be a benchmark for regulatory responses to the COVID-19 pandemic. This concerns the support offered to entities and individuals affected by the negative consequences of reducing or stopping their businesses and staying in isolation.

The day-watchman approach, visible in certain examples of public response to COVID-19 may serve as a framework for establishing a regulatory regime that would automatically take effect in case of another pandemic, limiting delays in regulatory actions, reducing non-compliance and accelerating recovery.

This study provides an analysis of different theories on public regulation addressing the notion of regulation using the day-watchman theory, which could be applied in regulatory actions during a pandemic. The paper discusses concrete steps taken by regulatory authorities worldwide, bringing examples from the USA, Canada, the UK, France, China, Japan, Australia and New Zealand. It juxtaposes the regulatory experiences derived from different catastrophes such as hurricanes, earthquakes or tsunamis with the regulatory response in a pandemic.

Enforcement as a concept imports compulsion to comply with a particular norm. Of course, the nature of enforcement might vary considerably with the norm in question or society within which action is desired. Professor Gower, in his ‘Review of Investor Protection’, expressed the view that a rule that could not be or was not enforced brought the system, within which that rule was supposed to operate, into disrepute. Whether this is true or not may be a matter for debate. Most systems of control envisage rules that in practical terms are unenforceable, but that are expected to have a normative or educational effect. Such functions, in the context of securities regulation, may be thought to be of some significance. Thus, the fact that simply because a rule cannot either in its terms or in practice be sanctioned by a predictable and determinate action intended to promote compliance, does not necessarily undermine that rule let alone the system within which it exists. To assume without more that a rule that cannot be enforced is not a legal rule, or to be precise a rule of law, while no doubt appealing enough to the positivist school of jurisprudence, is simplistic and outdated. Furthermore, in the context of the sort of economic regulation that we are discussing, whether a rule is characterised as one of law or not may or may not have significance. While there is a problem with determining the appropriate degree of interface between rules bearing differing qualities, purely in terms of achieving a defined regulatory objective it might well be that a rule which is not law in the formal sense of having been promulgated by an authority with legislative power, promotes a satisfactory degree of compliance. Therefore, many of the rules that pertained prior to the creation of the regime of regulation under the Financial Services Act 1986 were essentially non‐legal in the sense that they did not carry determinate sanctions ordained by a legal process consequent upon a violation and were not promulgated by an authority with legislative power. However, to dismiss them because they were unenforceable at law would give a very false picture of the efficacy of what was for many years a satisfactory regulatory structure. Even today, although the interrelationships of legal and non‐legal rules is very much more complex, it is still the case that significant areas of regulation have been left to non‐legal authorities.

The purpose of this paper is to examine the hypothesis that a period of sustained supernormal firm performance (for up to five years before fraud commission) creates financial pressure on actors/agents so they have a propensity to behave fraudulently to keep the good times (apparently) rolling.

Applying the Fama and French (1993) three-factor model using a range of calendar time portfolio methodologies, the authors measure abnormal drifts in stock performance in periods up to five years before alleged fraud commission dates. The authors examine a sample of 561 US firms subject to enforcement actions initiated by the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) over 1968-2009.

The authors find that sustained firm-specific positive stock price performance for up to five years followed by the almost inevitable adverse shock, which eventually brings the good times to an end, generally precedes corporate fraud. Fraud occurs when firm managers engage in misconduct in a misguided attempt to keep the good times (apparently) rolling despite the negative shock.

The sample is restricted to firms with trading histories on the stock market prior to the misconduct, and to firms contained in the Federal Securities Regulation database of US firms subject to enforcement actions initiated by the SEC and the DOJ over 1968-2009.

The desire to keep the good times rolling appears to be a very important driver of fraudulent behavior, even after controlling for the executive compensation incentive effects and business cycle effects emphasized in prior studies. The robust findings of positive abnormal returns for up to five years preceding initial fraud commission suggest that regulators and investors would be well-advised to scrutinize the behavior of firms that exhibit surprisingly persistent superior performance over an extended period. If the financial results appear too good to be true, a closer examination might just reveal that they indeed are.

While most investors generally like to see the “good times keep rolling” this pressure can create ethical dilemmas for managers.

Unlike most other papers in this area of the literature, which concentrate on the pre-fraud disclosure, the authors investigate the firm’s performance in the pre-fraud commission period. The authors find that the commission of the alleged fraud is preceded by a sustained period of surprisingly good performance of up to five years in length. The authors believe that the paper provides empirical evidence that supports the hypothesis that a period of sustained supernormal firm performance (for up to five years before fraud commission) creates financial pressure on actors/agents so they have a propensity to behave fraudulently to keep the good times (apparently) rolling.

The purpose of this paper is to expand our understanding of the motivations for corporate environmental, social and governance (ESG) reporting.

This paper provides a conceptual exploration of the motivation for corporations to provide ESG reports and proposes deterrence theory and avoidance as a complementary explanatory motivation for such reports.

Within this paper it is argued that part of the motivation for some corporations to increase ESG disclosures is to avoid, or mitigate, the risk of class actions and the associated financial penalties. This paper proposes that in Australia the deterrence impact, and ancillary avoidance behaviour, of civil litigation class action provides a further motivation for improving both corporate ESG disclosure and sustainability performance.

This paper extends the social and environmental accounting (SEA) reporting literature by proposing deterrence theory and avoidance as a corporate motivation for environmental, social and governance (ESG) reporting. Deterrence is proposed as a different, yet complementary, motivation to the oft‐cited variations of stakeholder and legitimacy theory which are dominant in the SEA reporting motivation literature.

This paper aims to analyze how the administrative structure of pension regulators affects regulatory capture or regulatory influence. It uses a historical institutionalist methodology to analyze regulatory capture.

The authors argue that the less complex allocation of regulatory authority in Ireland makes it more susceptible to regulatory capture or regulatory influence by the regulated industry than in the USA. Also, it is argued that stand-alone agencies are more susceptible to regulatory capture than are agencies that are embedded within larger departments of government. The authors present a five-step process in regulatory capture, with the later steps being used by the regulated industry if the earlier ones have failed.

The authors find that if the regulated industry has difficulty achieving regulatory capture through influencing the executive branch of government, it can also attempt to influence the legislative and judicial branches, as evidenced by a regulatory episode the USA has recently completed. Ireland has also recently completed reforms that may make regulatory capture more difficult. With a complex regulatory structure including overlapping authority as in the USA, when one agency has been strongly influenced by the regulated industry, another agency may take action to protect the public.

The paper presents international evidence as to the effect of the administrative structure of regulators on regulatory outcomes. It tests a hypothesis that the more complex, overlapping allocation of regulatory authority in the USA makes it less susceptible to regulatory capture.

The purpose of this paper is to discuss and provide new data and measures of bank regulatory and supervisory policies in 180 countries from 1999 to 2011.

The authors' approach is based upon the quantification of hundreds of questions, including information on permissible bank activities, capital requirements, the powers of official supervisory agencies, information disclosure requirements, external governance mechanisms, deposit insurance, barriers to entry, and loan provisioning, to form indices of key bank regulatory and supervisory policies.

It is found that the regulation and supervision of banks varies widely across countries in many different dimensions. Furthermore, there has not been a convergence in bank regulatory regimes over the past decade despite the worst global financial crisis since the Great Depression.

The data are based on survey responses and this requires that the answers be accurate. To better ensure this is the case, several checks were made to ensure greater accuracy in all the answers. Using this database one can perform various statistical analyses in attempt to determine which bank regulatory regimes work best to promote well‐functioning banking systems.

The authors' data and measures are new and unique so as enable policy makers and researchers to examine cross‐country comparisons and analyses of changes in banking policies over time.

The purpose of this paper is to examine the effects of corporate illegality on financial performance within the banking industry, in order to assess whether the regulatory framework is effective in curbing violations.

The operating performance of 84 publicly traded US banks that were subject to enforcement actions from US regulatory authorities over a 20‐year period were examined. Performance of each violating bank was analyzed several quarters after each violation and compared to a performance benchmark of non‐violating competitors.

Contrary to prior studies that show a negative effect of illegality on performance, the results of this investigation failed to show any significant and sustained effect of enforcement actions. This could be due to the unique situation of the banking industry. Nevertheless, the degree of impact depended on firm attributes, as smaller and riskier firms were affected more than others.

The paper is restricted to the US market, which is characterized by a special regulatory framework. Future research could investigate the issue in other markets. Also, this study does not differentiate with respect to the type of violation or seriousness of offense. Future studies could control for those issues.

The results of this study shed some insight on the effectiveness of regulations in the banking industry and suggest that regulators and policy makers should tighten‐up the sanctions and speed‐up the process.

This paper differs from other studies that investigate the effect of illegality on financial performance by focusing on a single and highly regulated industry that has unique characteristics.

Drawing on “Strategic Alliance” literature and qualitative research methods, the purpose of this study is to examine the initiation and operations phases of the relationship between Australian litigation funders and class law firms. The initiation phase examines factors such as complementarity between needs and assets compatibility between the funder and the class law firm goals of the alliance trust and alliance structure. The operations phase considers factors such as governance, communication and risk management and accountability. Because of its focus on the fairness of settlement, case law provides limited understanding of the drivers of the class law firm and funder relationship. An “inside look” of how the funder-law firm is initiated and made operational provides a more accurate picture and has important implications for the management of the ethical issues that arise during the course of that relationship.

This paper is a content analysis and contains qualitative interviews.

The strategic alliance between class law firms and litigation funders has evolved within an institutional climate that has acknowledged the benefits that the alliance can bring to the conduct of class actions. That same institutional environment has led to an alliance which is informal and transactionally oriented, where each of the parties maintains a demarcation in function. Although they share aspects of the strategic management of class actions, funders continue to be diligent monitors of class law firms, and class law firms continue to advance the legal rights of class members.

It is observed that the size of the sample is small driven by a number of market participants.

The paper confirms that the litigation funder–law firm strategic alliance works well as a result of institutional constraints.

Each of the alliance partners was keen to ensure that neither they nor their partner acted in a way which might attract judicial disapproval. Each also believed that they played a positive role in promoting class member interests, albeit that their primary motivation was to earn fees or a commission. The success of the alliance between class law firms and litigation funders has substantially improved access to justice in Australia for small claims holders.

The paper provides insight into a strategic alliance which is formed primarily for the benefit of third parties. This is one of the first papers to consider the litigation funder–law firm relationship through the lens of strategic alliance literature.

The purpose of this summary is to provide excerpts of selected Financial Industry Regulatory Authority (FINRA) Regulatory Notices and Disciplinary Actions issued in July, August, and September 2010.

The paper provides excerpts from FINRA Regulatory Notices and Disciplinary Actions.

Regulatory Notice 10‐32: Effective August 2, 2010, the Board composition and governance structure of FINRA Dispute Resolution, Inc. (a subsidiary of FINRA) will more closely parallel the composition and governance structure of the FINRA, Inc. Board of Governors (FINRA Board). 10‐34: The SEC approved amendments to FINRA Rule 8312, which governs the release of information 10‐36: Effective September 7, 2010, amendments to FINRA Rule 2360 (Options) extend the cut‐off time for the submission of certain contrary exercise advices (CEAs) by one hour to 7.30 pm Eastern Time (ET). 10‐42: Effective February 11, 2011, and May 9, 2011, are new FINRA rules that extend certain Regulation NMS protections to quoting and trading of over‐the‐counter (OTC) Equity Securities. 10‐43: On September 10, 2010, the SEC approved amendments to FINRA Rule 6121 (Trading Halts Due to Extraordinary Market Volatility) to expand the trading‐pause pilot, originally adopted on June 10, 2010, to include all stocks in the Russell 1000 Index and specified ETPs.

These are direct excerpts designed to provide a useful digest for the reader and an indication of regulatory trends. The FINRA staff is aware of this summary but has neither reviewed nor edited it. For further detail as well as other useful information, the reader should visit www.finra.org