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Can Arbitration Save IPOs?


In an op-ed article in today's Washington Post, a New York City attorney named Joseph W. Bartlett asserts that the number of companies going public on foreign exchanges (London, Toronto and elsewhere) suggests a dim future for the American economy. If the next Microsoft prefers to go public in Europe, it'll be our loss. Contrary to popular opinion, Bartlett says, Sarbanes-Oxley is not driving companies offshore. Instead, it is the proliferation of class-action lawsuits tied to volatile stock prices, which companies often opt to settle.

"The wealth transfer from public companies and their shareholders to plaintiffs' law firms arising from coerced settlements constitutes an annual multibillion-dollar tax not paid by our non-U.S. rivals, giving them a huge competitive advantage," he writes. (Here's the link.)

Bartlett argues that all of this could be fixed if the SEC simply allowed companies to write into their charters language that would send such shareholder claims to binding arbitration. I had lunch with Mark Heesen of the National Venture Capital Association yesterday, and he downplayed the significance of the recent uptick in companies going public overseas, so perhaps the problem is not as severe as Bartlett suggests. Nevertheless, his idea is pretty interesting. What do you think?

Last updated: Aug 1, 2006

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