Comment by tyre | Hacker News Reader

Comment by tyre | Hacker News Reader

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If events are disclosed in a timely manner then shareholders can sue for securities fraud.

Matt Levine—a columnist at Bloomberg who is both smart and hilarious; his Money Stuff newsletter is excellent—has a recurring theme of “everything is securities fraud.”

The theory: anything that effects the stock price of the company and isn’t disclosed as soon as possible is securities fraud.

Company doesn’t disclose a security breach? Securities fraud. Board buries a sexual harassment settlement with the CEO? Securities fraud.

If you buy stock after the event but before the event is disclosed, you were trading when the company had material information that could effect the stock price. That’s securities fraud.

Levine is both joking and not that really _anything_ could be prosecuted under this, and the SEC has seemed to make some prosecutions under this theory that feel more like, “what you did was shitty and maybe not exactly illegal or we don’t have exact evidence so we’ll prosecute you under this super broad statute.” Wire fraud seems to be applied in a similar manner.

(I’m not a lawyer and this is not legal advice, just some things I’ve read and now you’re reading on the internet from a random commentor. The above is how I understand it.)

Securities lawyer here. And... I kind of agree. With respect to insider trading at least. The laws are both complicated and unclear. Recent cases are taking things to the point where it might soon be difficult for senior executives to own stock without a blind trust. Historically insider trading has required some sort of affirmative _action_ (buying or selling) but there's been a trend recently (as alleged here) of alleging insider trading for inaction. You didn't sell as planned, you didn't disclose in time, etc. It could really put management in a difficult spot.

Other than the insider trading conundrum though it might seem like everything is securities fraud because we're too used to executives putting their own interests ahead of (or at least in line with) their shareholders*. That's a problem because their fiduciary duty says that company/shareholder interests have to come above all else.

Edit: Meant "shareholders" interests not "own" interests.

Just playing devil's advocate a bit, but what would be the downside of just drawing a bright line that owning stock in your employer is inherently a conflict of interest?

Owning stock in your employer can better align your interests with those of the shareholders to whom you answer.

If you believe that mechanism is sound, then I guess the downside would be that you have fewer incentives to maximize shareholder value.

> If you believe that mechanism is sound

I don't really believe that mechanism is sound. I mean, it likely has some sort of affect in that direction, but I don't really think that it's a strong one.

It is absolutely a strong one and one that startup's function as a result of.

If an employee couldn't get stock options in a startup, then there would be significantly fewer cases where they would choose to join a startup over a more stable, mature company. Sharing in the upside potential is critical. Sure, that isn't a public company but it still demonstrates the mechanism is sound.

> If an employee couldn't get stock options in a startup, then there would be significantly fewer cases where they would choose to join a startup over a more stable, mature company

That's possible, of course. I haven't seen any data to support it.

In my own experience (which is not statistically meaningful), this is a weak effect. I strongly prefer working for startups and very small companies, and most of the engineers I've worked with have stated that things like stock options aren't important to them (that's part of why options are so widely referred to as "wallpaper").

The attraction to working for startups, for both myself and most of the people I've worked with, is that startups offer better working conditions and more interesting projects.

However, I do feel the need to underline that this is just my subjective experience and it may not representative overall.

Imagine a new scenario:

Every company in YC Winter 2019 issues half its ownership to a pool. Every company receives, in return, shares of the YCW19 fund. Employee stock options are 100% issued from the YCW19 fund.

Is this better or worse for non-founding employees? More or less attractive than receiving stock options that only apply to the member company that they actually work for?

>Every company in YC Winter 2019 issues half its ownership to a pool. Every company receives, in return, shares of the YCW19 fund. Employee stock options are 100% issued from the YCW19 fund.

And thus CDOs were invented...

It is definitely better for the employee. But it also doesn't necessarily align incentives.

For example, once you are fully vested at a startup, the reason to stay is primarily if you think you have a material impact on the share price. If you don't, then you should leave to go somewhere where you do have a material impact and treat your shares in the original startup simply as an investment. In contrast, if you have a material impact, you should stay to maximize the value of your shares. Pooling everyone's shares, while better for the individual employee from a diversification perspective, reduces the ability of the employee to have a material impact on their investment.

Consider that the overwhelming majority of startups don't make a positive exit/acquisition/IPO... but in a group as large as YCW19, some of them will. (That being the entire purpose of YC.)

Assume your prospective employees are economically rational. They have a couple of offers on the table, identical as to salary, benefits, and track record of existing founders. The only difference is that one is offering a tiny percentage of a lottery ticket that will pay out if they exit successfully, and the other is offering a tinier percentage of a lottery ticket that will pay out if any of their sister companies exits successfully. And there's little chance that you picked a unicorn, but a pretty good chance that somewhere in the cohort is a unicorn.

Being in that cohort becomes a hiring advantage if you get to share in their success.

It would be refreshing if business didn't have any incentive to maximize shareholder value. Lots of great things are killed or diluted for a handful of people to get a return. Exponential growth isn't sustainable, yet it's expected to keep shareholders rich and satiated at the cost of the quality of product that the end customer receives. What's wrong with just making a good product and running a business well enough to cover your overhead and pay your employees well? Why do we never hear of these stories in Bloomberg or Forbes?

I believe it's a fundamental lack of faith in one's product or service that results in untenable corporate growth maximization schemes.

There's nothing barring this. Just don't sell any control of your company to anyone who won't agree with this strategy indefinitely, and run a consistently cash flow positive business so you will never be in a position to need to bend that rule to make payroll. It's definitely harder, especially if you don't have your own capital to start with, or hit a temporary bump in the road that bleeds the war chest, but people do it.

If you take outside capital to accelerate your business on the assumption that the investors will make money as it grows, you're choosing to join that system, no one forces you to participate.

Although I suppose you could end up in a zero sum competition with another business for market share, and there might be an unstable nash equilibrium where you both might want to not raise money, but if the other raises significant capital they could crush you, so you are kind of systematically pushed to play the game to keep your vision alive.

It's somewhat more stronger than that even. For US investors and parties servicing (like Dow Jones) those Not owning stocks in your own firm is a red flag. So even though post crisis bonusses, stocks and options are to different measures frowned upon in, say, some EU countries, you would underperform in some US benchmark and reach less investors.

It is an inherent conflict of interest but the question is whether that conflict can be mitigated and, after mitigation, whether the potential risk/"cost" of that conflict to the shareholders outweighs the benefit to the shareholders. There would be at least a few downsides to prohibiting employee stock ownership: significantly higher salary expenses and (in theory) less employee motivation/incentive to stay at a company.

Historically we've said the pros outweigh the cons but I'm really not sure we can accurately assess the risk of insider trading anymore because the definition of it is constantly changing.

Startups would be next to impossible if employees (which includes the founders) couldn't own stock.

Maybe you could limit the rule to publicly traded companies, but then people would have to decide whether to sell all of their stock or leave a company when it went public, which doesn't seem fair to the employees or good for the company.

https://avc.com/2010/04/no-conflict-no-interest/

   Recent cases are taking things to the point where it might soon be difficult for senior executives to own stock without a blind trust.

Superficially this doesn't seem like a crazy idea - or at least it seems plausible to set it up well.

I get the thinking that execs holding equity gives them more skin in the game, but it also seems to often lead to poorly matched incentives, and a reward structure that is only loosely coupled to real performance.

Interesting that you mention "wire fraud," which is defined in a sense that involves "intent to deceive using an electronic device". Basically, woman lying about her weight on a dating app is committing wire fraud, as is a son lying to his mom that he had dinner. It only matters how much the woman or the son angered the authorities to determine the extent to which they will feel their wrath.

This is untrue.

I am the Queen of England.

That's also untrue. But I'm confident I didn't just commit wire fraud.

Wire fraud requires an intentional material deception that deprives someone of money or property. While both of your examples have the intent element they're lacking materiality and injury.

All fraud requires a lie but not all lies rise to the level of fraud. The vast majority don't.

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