Executive Compensation in Controlled Companies

Kobi Kastiel is a fellow at the Harvard Law School Program on Corporate Governance. His article, Executive Compensation in Controlled Companies, is forthcoming in the January 2015 issue of Indiana Law Journal and available here. Additional work from the Program on Corporate Governance on executive compensation includes Paying for Long-Term Performance by Lucian Bebchuk and Jesse Fried, discussed on the Forum here.

More than a decade ago, Professors Lucian Bebchuk and Jesse Fried published the seminal work on the role and significance of managerial power theory in executive compensation. Their work cultivated a vivid debate on executive compensation in companies with dispersed ownership. The discourse on the optimality of executive pay in controlled companies, however, has been more monolithic. Conventional wisdom among corporate law theorists has long suggested that the presence of a controlling shareholder should alleviate the problem of managerial opportunism because such a controller has both the power and incentives to curb excessive executive pay.

My Article, Executive Compensation in Controlled Companies, forthcoming in the Indiana Law Journal, challenges that common understanding by proposing a different view that is based on an agency problem paradigm, and by presenting a comprehensive framework for understanding the relationship between concentrated ownership and executive pay. On the theoretical level, the Article shows that controlling shareholders often have incentives to overpay professional managers instead of having an arm’s-length contract with them, and therefore it suggests that compensation practices in a large number of controlled companies may have their own pathologies.

To begin with, controllers may wish to overpay managers in order to maximize their consumption of private benefits, while providing professional managers with a premium for their “loyalty” and for colluding with tunneling activities. This tendency is further aggravated by the use of control-enhancing mechanisms, such as dual-class share structures, which distort controllers’ monitoring incentives due to the wedge it creates between controllers’ cash flow rights and control rights. In addition, certain controllers, such as second generation controllers, could be “weak” due to their lack of experience, motivation or talent, and thus are more easily captured by professional CEOs. Controllers could also be biased due to their longstanding professional and social relationship with professional managers, and cannot be expected to exercise an impartial influence over the formulation of compensation contracts. This alternative view presented in the Article could also help explain recent puzzling phenomena such as the overly generous pay patterns in Viacom or other controlled companies, as well as the rise in say-on-pay rules in countries with concentrated ownership (as observed in a recent study by Thomas & Van der Elst).

On the empirical level, the Article questions conventional beliefs on executive pay by reviewing the recommendations on say-on-pay votes of Institutional Shareholder Services, Inc. (ISS), the leading and most influential proxy advisory firm in the United States. In determining whether to recommend shareholders to vote against a management say-on-pay proposal, ISS examines the company’s pay-for-performance alignment compared to peer group alignment over a sustained period, as well as the use of problematic pay practices. This, in turn, makes the ISS recommendation a useful tool for determining whether a pay package is accurately calibrated to maximize shareholder value.

The data presented in the Article, which is based on the review of ISS recommendations for say-on-pay votes at companies included in the Russell 3000 Index during the 2011 and the 2012 proxy seasons, provides an indication that the compensation packages of professional managers in controlled companies appears to be a bigger problem than initially predicted. In particular, it shows that a controlled company managed by a professional CEO has a slightly higher likelihood to receive a negative recommendation than a widely held company. This result remains substantially similar and statistically significant even when controlling for firms’ market value and industry, or when neutralizing the effect of controllers who are also the CEOs of their firms.

Finally, on the normative level, the Article shows that a U.S. style say-on-pay rule, which requires a non-binding vote by the shareholders as a whole, is unlikely to mitigate the agency problem in determining executive compensation in controlled companies. Since controlling shareholders exercise significant control over the directors’ election process, receiving a failed say-on-pay vote and facing a risk of a withhold vote recommendation for the election of certain directors is unlikely to have any effect on controllers’ ability to elect their directors. And when controllers face no sanctions for failing their say-on-pay votes, they are more likely to ignore shareholders’ concerns, and to use their voting power to approve compensation packages that are suboptimal for other shareholders. The Article, therefore, calls for a new regulatory approach: re-conceptualize the pay of professional managers in controlled companies as an indirect self-dealing transaction and subject it to the applicable rules that regulate conflicted transactions.

The full paper is available for download here.

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