Berkeley Program in Law and Economics

Public companies in the United States and elsewhere increasingly use open market stock buybacks, rather than dividends, to distribute cash to shareholders. Academic commentators have emphasized the possible benefits of such repurchases for shareholders. However, little attention has been paid to their potential drawbacks. This Article explains that managers currently are able to use open market repurchases and misleading repurchase announcements to enrich themselves at public shareholders’ expense. Managers, aware their stock is underpriced, frequently use repurchases to indirectly buy stock for themselves at a bargain price. Managers have also been able to boost stock prices by announcing repurchase programs they did not intend to execute, perhaps to unload their own shares at a high price. Such bargain repurchases and inflated-price sales systematically transfer significant amounts of value from one set of shareholders (public investors) to another (managers). Low-price buybacks are also likely to reduce aggregate shareholder value by distorting managers’ payout and investment decisions, further reducing public shareholder returns. The Article concludes by proposing a new approach to regulating open market repurchases: requiring managers to disclose specific details of the firm’s buy orders in advance. This pre-repurchase disclosure rule would undermine managers’ ability to use repur- chases for informed trading and false signaling, thereby reducing the resulting distortions and costs to shareholders. Moreover, it would achieve these objectives without eroding any of the potential benefits of repurchases. Previously circulated under the title “Share Repurchases and Managerial Opportunism”.