Yearly Archives: 2018

Shareholder Battles at Telecom Italia

Federica Soro is an analyst at Glass, Lewis & Co. This post is based on her Glass Lewis publication.

Related research from the Program on Corporate Governance includes The Long-Term Effects of Hedge Fund Activism by Lucian Bebchuk, Alon Brav, and Wei Jiang (discussed on the Forum here); Dancing with Activists by Lucian Bebchuk, Alon Brav, Wei Jiang, and Thomas Keusch (discussed on the Forum here); and Against All Odds: Hedge Fund Activism in Controlled Companies by Kobi Kastiel.

The spotlight has been on Telecom Italia since Vivendi, the French media conglomerate controlled by Vincent Bolloré, built up a 24% stake in 2016. In the past few months, the glare has intensified over a series of shareholder meetings, court decisions and backroom negotiations, with governance and control of the Italian company—as well as influence over a strategic asset of national importance—in the balance.

One year ago, Vivendi managed to secure a majority of Telecom’s board for a three-year term, as its slate of nominees narrowly defeated the slate of independent directors proposed by institutional investors. Among rumors of clashes with the new oversight team, CEO Flavio Cattaneo became the second chief executive to leave Telecom in just over a year—receiving €25 million upon termination of his employment contract.

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Weekly Roundup: June 1-June 7, 2018


More from:

This roundup contains a collection of the posts published on the Forum during the week of June 1-June 7, 2018.

Global Governance: Board Independence Standards and Practices


Caremark and Reputational Risk Through #MeToo Glasses



How To Avoid Bungling Off-Cycle Engagements with Stockholders



Anticipating and Planning for Geopolitical & Regulatory Changes





Post-Dell Appraisal—Still Work to be Done




Proposed Amendments to the Volcker Rule



Statement at Open Meeting on Inter-Agency Proposal for Amendments to the Volcker Rule

Jay Clayton is Chairman of the U.S. Securities and Exchange Commission. This post is based on Chairman Clayton’s recent public statement, available here. The views expressed in this post are those of Mr. Clayton and do not necessarily reflect those of the Securities and Exchange Commission or its staff.

[June 5, 2018], the Commission will consider proposed amendments to rules adopted under section 13 of the Bank Holding Company Act. The proposed amendments principally relate to prohibitions and restrictions on proprietary trading and certain interests in, and relationships with, hedge funds and private equity funds, commonly known as the “Volcker Rule.”

Before I turn to that, however, I want to acknowledge that yesterday the Commission approved a set of important actions. In three related releases, the Commission provided a new, optional “notice and access” method for delivering fund shareholder reports. We also invited investors and others to share their views on improving fund disclosure, and sought feedback on the fees that intermediaries charge for delivering fund reports. These releases, together, are important steps in our ongoing efforts to improve the experience of investors in mutual funds, ETFs and other investment funds by modernizing the design, delivery and content of fund disclosures to investors. Additional information about these releases, including a press release, fact sheet and statement, are available on sec.gov.

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Statement on Proposed Revisions to Prohibitions and Restrictions on Propriety Trading and Certain Interests in, and Relationships With, Hedge Funds and Private Equity Funds

Kara M. Stein is a Commissioner at the U.S. Securities and Exchange Commission. The following post is based on Commissioner Stein’s recent public statement, available here. The views expressed in the post are those of Commissioner Stein and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

I also would like to thank the staff for all of their hard work on this proposal. I’d like to begin my statement this morning [June 5, 2018] with a quote about today’s proposed amendment to the Volker Rule:

[W]e recognize that the proposed amendment could increase moral hazard risks related to proprietary trading by allowing dealers to take positions that are economically equivalent to positions they could have taken in the absence of the 2013 final rule. [1]

More on this later. Let’s start first with a little history.

October 19, 1987: Black Monday

On October 19, 1987, or Black Monday, the stock market plunged over 20% in one day—the largest single day drop in market history. [2] Black Monday’s drop was partially caused by rapid-fire trading related to a newly popularized financial product—portfolio insurance. Portfolio insurance, or so-called “dynamic hedging,” was sold as a mechanism for mutual funds, insurance companies, pension funds, and others to protect their market gains from future declines. [3] This hedging strategy compounded selling into a declining market and accelerated the pace of the crash. [4]

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Proposed Amendments to the Volcker Rule

Robert J. Jackson, Jr. is a Commissioner at the U.S. Securities and Exchange Commission. The following post is based on Commissioner Jackson’s recent public statement, available here. The views expressed in the post are those of Commissioner Jackson and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

Thank you, Chairman Clayton, and thank you to the exceptional Staff in the Divisions of Trading and Markets and Investment Management for their work on these proposals. I’m especially appreciative to Andrew Bernstein in the Division of Trading and Markets and Brian Johnson in the Division of Investment Management for the time each of you spent with me and my staff throughout this process.

The Commission today [June 5, 2018] joins several other agencies in rolling back protections designed to keep banks from speculating with taxpayer money—more commonly known as the Volcker Rule. For the reasons Commissioner Stein has so thoughtfully explained, weakening these protections gives banks more leeway to do the kind of risky trading for which we should be ever more watchful. There are many questions raised by today’s proposal, and I commend Commissioner Stein’s statement to my colleagues. I’d also like to highlight three reasons why I cannot join the majority in voting to propose this rule.

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Lazard’s 1Q 2018 13F Filing Analysis

Jim Rossman is head of Shareholder Advisory at Lazard. This post is based on a Lazard publication by Mr. Rossman.

  • Rule 13F-1 of the Securities Exchange Act of 1934 requires institutional investors with discretionary authority over more than $100m of public equity securities to make quarterly filings on Schedule 13F
    • Schedule 13F filings disclose an investor’s holdings as of the end of the quarter, but generally do not disclose short positions or holdings of certain debt, derivative and foreign listed securities
    • Filing deadline is 45 days after the end of each quarter; filings for the quarter ended March 31, 2018 were due on May 15, 2018
  • Lazard’s Shareholder Advisory Group has identified 16 core activists, 29 additional activists and 34 other notable investors (listed on the following page) and analyzed the holdings they disclosed in their most recent 13F filings and subsequent 13D and 13G filings, other regulatory filings and press reports
    • For all 79 investors, the focus of Lazard’s analysis was on holdings in companies with market capitalizations in excess of $500 million

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Measuring the Impact of Median Employee Pay on the CEO Pay Ratio

Ira Kay is a Managing Partner and Blaine Martin is a Consultant at Pay Governance LLC. This post is based on their Pay Governance memorandum.

For the first time, the Securities and Exchange Commission (SEC) mandated that thousands of companies disclose the ratio of CEO pay to median employee pay (“ratio”) in their annual proxy statements for 2018. The S&P 500 company ratios disclosed thus far show substantial variation, with a median of 155:1 and a range from 0:1 to 5,000:1. While the ratio was never designed to facilitate cross-company comparisons, recent media coverage has done just that, and company management teams and Boards are asking, “What does our ratio mean, and where does our pay ratio stand versus those of our competitors?” Answering this is more complex than it may seem. There are many economic, organizational, and strategic variables that make fair and appropriate comparison between companies, even those within the same industry, technically challenging if not impossible.

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Post-Dell Appraisal—Still Work to be Done

Daniel E. Wolf is a partner and Gilad Zohari is an associate at Kirkland & Ellis LLP. This post is based on their Kirkland & Ellis publication, and is part of the Delaware law series; links to other posts in the series are available here.

Related research from the Program on Corporate Governance includes Using the Deal Price for Determining “Fair Value” in Appraisal Proceedings by Guhan Subramanian (discussed on the Forum here).

In the aftermath of the long-awaited Delaware Supreme Court appraisal decisions in Dell (which we reviewed in a previous note) and DFC, there was cautious optimism that the court’s guidance would eliminate or at least significantly reduce the uncertainty that surrounded appraisal proceedings in Delaware courts in recent years. It was hoped that the decisions would improve predictability and consistency in the application of different valuation metrics used to appraise the fair value of target companies.

In both Dell and DFC, the Supreme Court held that if the deal price resulted from a robust, informed and competitive process and arm’s-length negotiations, the trial judge would be required to assign substantial weight to the deal price as evidence of fair value in subsequent appraisal proceedings. While the Supreme Court did not take the final step of adopting a presumption in favor of deal price as the sole measure, the decisions strongly suggested that, if a deal resulted from a well-designed and competitive process, parties could expect that the deal price would be decisive in appraisal.

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Board Lessons: Succeeding with Investors in a Crisis

Krystal Gaboury Berrini and and Rob Zivnuska are partners at CamberView Partners. This post is based on a Bloomberg Law article by Ms. Berrini, Mr. Zivnuska, Eric Sumberg, and Kathryn Night.

Each year, a small number of companies confront crisis-level events that draw high-profile scrutiny from a range of stakeholders. A well-executed emergency response plan can help limit the immediate fallout from a negative incident. However, in recent years, the companies that have been the most successful in managing the longer-term effects of a crisis have paid an increasing amount of attention to the viewpoints and concerns of investors. Though each situation presents a unique fact pattern, companies that have invested in building relationships with shareholders over time have been able to leverage those relationships to achieve better outcomes when a crisis hits. Below we outline the importance of relationship-building, effective ways to address investor engagement during a crisis and the importance of transparency and board leadership in maintaining credibility with investors over the long-term.

Building investor relationships before a crisis hits

From an investor perspective, crisis preparation begins months and years before an event occurs. Companies that dedicate resources to building strong relationships with their investors through a robust engagement plan are taking the necessary steps to generate a reservoir of credibility and trust which can be drawn upon in the face of a difficult event. There are a few main reasons why building relationships over time is so important:

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Cheap-Stock Tunneling Around Preemptive Rights

Jesse Fried is the Dane Professor of Law and Holger Spamann is Professor of Law at Harvard Law School. This post is based on their recent paper.

In a paper recently posted on SSRN, Cheap-Stock Tunneling Around Preemptive Rights, we show that preemptive rights are much less effective at protecting outside investors than is widely believed.

Corporate insiders may engage in tunneling—transactions to transfer value from outside shareholders to themselves. Reducing tunneling is corporate law’s most basic function, as fear of tunneling undermines entrepreneurs’ ability to raise capital from outside investors ex ante (Shleifer and Vishny 1997). Preemptive rights are the oldest and most widely-used tool for preventing one of the main forms of tunneling, “cheap-stock tunneling:” an equity issue to the insiders at a low price that economically dilutes the interest of outside shareholders. To defend against cheap-stock tunneling, preemptive rights give all shareholders the right to participate pro rata in equity offerings. In listed firms, preemptive rights are implemented via “rights issues” in which a firm distributes to all shareholders pro rata rights to buy additional shares.

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