Yearly Archives: 2018

The Hypocrisy of Hedge Fund Activists

Kai Haakon Liekefett is Partner at Sidley Austin LLP. This post is based on his recent publication in the 2018 Spring Edition of Ethical Boardroom.

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); Who Bleeds When the Wolves Bite? A Flesh-and-Blood Perspective on Hedge Fund Activism and Our Strange Corporate Governance System by Leo E. Strine, Jr. (discussed on the Forum here); and Stock Market Short-Termism’s Impact by Mark Roe, (discussed on the Forum here).

In virtually every activism campaign, hedge fund activists don the mantle of the shareholders’ champion and accuse the target company’s board and management of subpar corporate governance.

This claim to having “best practices of corporate governance” at heart is hollow—even hypocritical—as evidenced by at least three examples: hedge fund activists actually undermine the shareholder franchise, they weaken the independence and diversity of the board, and they waffle on their anti-takeover protection stance.

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Anticipating and Planning for Geopolitical & Regulatory Changes

Steve W. Klemash is Americas Leader at the EY Center for Board Matters; and Jon Shames is Global Leader at the EY Geostrategic Business Group. This post is based on an EY Center for Board Matters publication by Mr. Klemash and Mr. Shames.

Late in 2017, the EY Center for Board Matters highlighted the importance of anticipating and planning for geopolitical and regulatory changes in our report, Top priorities for US boards in 2018. That priority has since intensified. In the first few months of 2018, US stock indexes experienced the highest levels of volatility since 2014. Long-standing trade agreements, tax and regulatory systems, and defense treaties are being renegotiated, transformed or absolved. And the International Monetary Fund has warned that rising US-China trade restrictions are threatening to derail growth and undermine confidence.

Rising geopolitical tensions and increasing electoral share for populist parties are a concern for businesses. With policy becoming harder to predict, many executives see policy uncertainty, geopolitical tensions, and changes in trade policy and protectionism as key risks to their business. At the same time, business leaders are optimistic about the near-term US outlook—in part because of deregulation and the passage of US tax reform. In fact, the recent Borders vs. Barriers report from EY, Zurich Insurance and the Atlantic Council indicates that despite concerns about policies restricting their ability to transport goods and raise capital, global CFOs are overwhelmingly bullish on investing in the US, and 71% expect continued improvement in the US business environment in the next one to three years.

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The Importance of Inferior Voting Rights in Dual-Class Firms

Dov Solomon is an Associate Professor at the College of Law and Business, Ramat Gan Law School. This post is based on his recent article, forthcoming in the Brigham Young University Law Review. 

Related research from the Program on Corporate Governance includes The Untenable Case for Perpetual Dual-Class Stock (discussed on the Forum here) and The Perils of Small-Minority Controllers (discussed on the Forum here), both by Lucian Bebchuk and Kobi Kastiel.

Over the past several years, corporate law scholarship has carefully analyzed the effects of dual-class capital structures, which allocate superior voting rights to insiders and inferior voting rights to public shareholders. My article, The Importance of Inferior Voting Rights in Dual-Class Firms, which will be published by the Brigham Young University Law Review, adds to the literature by focusing on a unique and novel type of dual-class structure—one in which the public shares have no voting rights at all. This structure is fundamentally different because in the absence of even highly diluted voting rights in public hands, the firm does not have to meet certain types of disclosure rules and corporate governance standards. Nonvoting shareholders are deprived of these significant components of investor protection.

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How To Avoid Bungling Off-Cycle Engagements with Stockholders

Ethan A. Klingsberg is a partner and Elizabeth Bieber is an associate at Cleary Gottlieb Steen & Hamilton LLP. This post is based on a Cleary Gottlieb publication by Mr. Klingsberg and Ms. Bieber.

Many clients are now turning from their annual meeting to plans for off-cycle engagements with their institutional investors, including the passive strategy behemoths (Blackrock, State Street and Vanguard which tend to own, in the aggregate, around 20% of many of our mid- and large-cap clients), traditional actively managed funds, pension funds, and hedge funds. [1] The rationale for these meetings is that postponement of outreach until a threat of a contested situation (such as a short-slate proxy contest or aggressive shareholder proposal) may be “too little, too late” and that these one-on-one meetings on “sunny days” (and even “partly cloudy days”) are critical, if not for locking up support, at least for establishing a foundation for obtaining support if and when the storm clouds arrive.

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Nomination Committees and Corporate Governance: Lessons from Sweden and the UK

Sophie Nachemson-Ekwall is an Affiliated Researcher at the Stockholm School of Economics. This post is based on a recent paper by Ms. Nachemson-Ekwall and Colin Mayer, Peter Moores Professor of Management Studies at the University of Oxford Said Business School.

The board of director nomination-process is a particularly important but largely ignored aspect of corporate governance. It has been ignored in relation to the attention that has been paid to other corporate governance committees, such as the remuneration and audit committees. Both of these appear to have greater relevance to the financial performance of firms and the correction of managerial failure. EU legislation has addressed both areas.

This paper suggests that, on the contrary, the nomination committee (NC) should be a primary focus of attention in corporate governance debates. As custodians of the corporate purpose and firm values, the board plays a critical role in establishing the objectives of the firm and overseeing their implementation through the formulation of strategy, measurement of performance and setting of standards and incentives. The identification of the right members of the board is therefore a primary influence on the operation of the firm. Thus, the legitimacy of the NC in the eyes of the shareholder community and the trust received from minority shareholders is pivotal to the empowerment of the board.

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Caremark and Reputational Risk Through #MeToo Glasses

Arthur H. Kohn is partner and Elizabeth Bieber and Vanessa C. Richardson are associates at Cleary Gottlieb Steen & Hamilton LLP. This post is based on their Cleary Gottlieb publication and is part of the Delaware law series; links to other posts in the series are available here.

Public and private businesses today face many decisions that do not arise from, and have consequences far beyond, solely financial performance. Rather, these decisions are primarily driven by, and implicate, important social, cultural and political concerns. They include harassment, pay equity and other issues raised by the #MeToo movement; immigration and labor markets; trade policy; sustainability and climate change; the manufacture, distribution and financing of guns and opioids; corporate money in politics; privacy regulation in social media; cybersecurity; advertising, boycotts and free speech; race relations issues raised by the pledge of allegiance controversy; the financing of healthcare; the tension between religious freedom and discrimination laws; and the impact of executive pay on income inequality, among others. If the nature of the issues is not unprecedented, the number, diversity and polarization seem to be.

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Global Governance: Board Independence Standards and Practices

Subodh Mishra is Executive Director at Institutional Shareholder Services, Inc. This post is based on an ISS Analytics publication by Kosmas Papadopoulos, Managing Editor at ISS Analytics.

Related research from the Program on Corporate Governance includes The Elusive Quest for Global Governance Standards by Lucian Bebchuk and Assaf Hamdani.

Global board practices have changed significantly in recent years. Regulatory developments, the introductions and revisions of corporate governance codes, and company-shareholder engagement have all contributed towards the improvement of standards in both developed and developing economies.

In an effort to assess the landscape of global governance, we look at the current state of board governance standards and practices at 50 of the largest global equity markets under ISS coverage. We base our analysis on the market intelligence and expertise of ISS’s global research teams as well as ISS Analytics board and director data for more than 17,000 companies in these 50 countries.

We primarily focus on market standards and best practices in relation to board independence, which constitutes one of the most fundamental principles of corporate governance.

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Weekly Roundup: May 25-31, 2018


More from:

This roundup contains a collection of the posts published on the Forum during the week of May 25-31, 2018.



An Introduction to Smart Contracts and Their Potential and Inherent Limitations



Proposed Amendments to Delaware’s LLC and LP Acts


Taxes and Mergers: Evidence from Banks During the Financial Crisis


Labor Representation in Governance as an Insurance Mechanism


The Xerox Takeover Saga


Regulatory Reform Should Spur Consolidation


China as a “National Strategic Buyer”: Towards a Multilateral Regime for Cross-Border M&A


Directors’ Notes: A Trap for the Unwary?


Do Founders Control Start-Up Firms that Go Public?


US Contentious Situations Update


CEO Pay Ratio: A Deep Data Dive


Principles and Best Practices for Virtual Annual Shareowner Meetings



Spotlight on Boards 2018

Martin Lipton is a founding partner of Wachtell, Lipton, Rosen & Katz, specializing in mergers and acquisitions and matters affecting corporate policy and strategy. This post is based on a Wachtell Lipton publication by Mr. Lipton.

The ever-evolving challenges facing corporate boards prompt an updated snapshot of what is expected from the board of directors of a major public company—not just the legal rules, but also the aspirational “best practices” that have come to have equivalent influence on board and company behavior. Today, boards are expected to:

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Stock Market Short-Termism’s Impact

Mark J. Roe is the David Berg Professor of Law at Harvard Law School. This post is based on a recent paper by Professor Roe, available here.

Related research from the Program on Corporate Governance includes Corporate Short-Termism—In the Boardroom and in the Courtroom by Mark Roe (discussed on the Forum here); The Myth that Insulating Boards Serves Long-Term Value by Lucian Bebchuk (discussed on the Forum here); and Can We Do Better by Ordinary Investors? A Pragmatic Reaction to the Dueling Ideological Mythologists of Corporate Law by Leo E. Strine (discussed on the Forum here).

Stock-market driven short-termism is crippling the American economy, according to legal, judicial, and media analyses. Firms are forgoing the R&D they need, sharply cutting capital expenditures, and buying back their own stock so feverishly that they starve themselves of cash. The stock market is the primary cause: corporate directors and senior executives cannot manage for the long-term when their shareholders furiously trade their company’s stock, they cannot make long-term investments when stockholders demand to see profits on this quarter’s financial statements, they cannot even strategize about the long-term when shareholder activists demand immediate results, and they cannot keep the cash to invest in their future when stock market pressure drains away that cash in stock buybacks.

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