The Virtue of Common Ownership in an Era of Corporate Compliance

Abstract

Recent years have seen a tremendous rise in common ownership, a structure in which large institutional investors — such as BlackRock, Vanguard, State Street Advisors and Fidelity — have significant holdings in corporations that are horizontal competitors. Common ownership has long been the topic of scholarly debate with many scholars traditionally arguing that common ownership presents antitrust problems. Rather than enter into the antitrust debate, this Article argues that common ownership presents tremendous virtue for corporate governance, and more specifically — corporate compliance.

In recent years the Department of Justice (DOJ) and other enforcement authorities have increasingly directed their resources towards enforcing laws that are typically oriented to specific industries, such as healthcare (pharmaceuticals), financial and energy industries, or geographic areas. These laws — including the Foreign Corruption Practices Act (FCPA), False Claims Act (FCA), Bank Secrecy Act, as well as laws and regulations aiming to prevent Money Laundering, Environmental and Anti-Trust violations — expose companies associated with specific industries to tremendous legal risks — which I term macro legal risks.

This Article argues that institutional investors who hold shares in corporations in line with the common ownership structure are uniquely positioned to enhance the compliance of those corporations with industry-oriented laws, and to minimize exposure to macro legal risks. Institutional investors who invest in corporations that operate in the same industry, can take advantage of three interrelated merits of common ownership: (1) enhanced incentives for monitoring compliance of corporations with industry-oriented laws and accordingly, minimize macro legal risks, (2) privileged access to rulemaking and lawmaking, and (3) experimental learning of macro legal risks. These merits allow them to better monitor corporations in which they invest and practice effective corporate governance and compliance.

The incentives of institutional investors increase due to increased aggregate exposure to problems affecting a certain industry, and the difficulty of responding to these problems decreases as institutional investors are able to apply a one-size-fits-all approach to these problems, rather than develop individualized solutions for specific corporations. This Article provides concrete examples of institutional investors’ engagement with companies regarding macro legal risks, reflecting their enhanced incentives. Due to their status as major asset holders, institutional investors develop close relationships with regulators and lawmakers, giving them a chance to influence regulation beyond the normal notice and comment process and anticipate trends in law and regulation. This Article provides examples of how institutional investors engage in dialogue with regulators in an attempt to assist in the rulemaking process. Finally, as a result of their wide holdings, institutional investors can apply knowledge gained in investigations and enforcement proceedings against a corporation, to prevent this from happening to other corporations within the industry.

This Article is the first to analyze the benefits of common ownership in the area of corporate governance and more specifically corporate compliance, and to bridge the compliance literature with the institutional investor literature. This Article argues that in an era of increasing enforcement based on industry-oriented characteristics, institutional investors who invest in line with a common ownership structure, will become more active in overseeing corporate compliance and more effective in minimizing corporate wrongdoing.

Keywords: Institutional investors; Index funds; Common Ownership; Compliance; Macro legal risks