Yearly Archives: 2021

The Long-Term Effects of Short Selling and Negative Activism

Peter Molk is Associate Professor of law at the University of Florida Levin College of Law and Frank Partnoy is the Adrian A. Kragen Professor of law at the University of California Berkeley School of Law. This post is based on their recent paper. 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 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).

First, the punch line of our new empirical study: activist short selling, which we call “negative activism,” has real and lasting long-term effects. On average, the share prices of targeted companies fall by more than 20% after four years. Accounting returns plummet. Targets are more likely to be sued and investigated by regulators. The numbers are staggering.

Meanwhile, GameStop-style attacks have led some short sellers to flee the market, and targets are being placed on others. Regulators are debating new short selling restrictions. Investors are focused on the mechanics of short selling. Some public company executives are eager to deter short selling. Members of Congress are attacking short sellers, often without evidence.

Many readers of this Forum are familiar with the two main results in the literature on “positive” activism. Its announcement is associated with a short-term share price increase in the range of +7%, and this price increase is reflected in long-term improvements in shareholder value. Scholars have replicated these findings repeatedly during the past decade, generating a lively and important debate that continues today. The early literature spawned an entire field of study, and the threat of positive shareholder activism has become a front-of-mind reality for practitioners, board members, and market participants.

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Weekly Roundup: March 19–25, 2021


More from:

This roundup contains a collection of the posts published on the Forum during the week of March 19-25, 2021.

Equality Metrics



Delaware Court Enjoins Poison Pill Adopted in Response to Market Disruption


Gensler and SEC’s 2021 Examination Priorities Highlight ESG and Climate Risk


Poison Pills After Williams: Not Only for When Lightning Strikes


Speech by Commissioner Roisman on ESG Regulation


Corporate Officers Face Personal Liability for Steering Sale of the Company to a Favored Buyer


Common Ownership and Competition in the Ready-to-Eat Cereal Industry




Are Women Underpriced? Board Diversity and IPO Performance



Activist Shareholder Proposals and HCM Disclosures in 2021



Protests from Within: Engaging with Employee Activists


Behavioral Psychology Might Explain What’s Holding Boards Back


The Distribution of Voting Rights to Shareholders


Remarks by Commissioner Crenshaw at Asset Management Advisory Committee Meeting

Caroline Crenshaw is a Commissioner at the U.S. Securities and Exchange Commission. This post is based on her recent remarks at the Asset Management Advisory Committee Meeting. The views expressed in the post are those of Commissioner Crenshaw, and do not necessarily reflect those of the Securities and Exchange Commission, the other Commissioners, or the Staff.

Good morning. As always, thank you to the Committee for your time, dedication, and thoughtfulness on important asset management issues that affect investors and market integrity. Thank you also to the staff of the Division of Investment Management.

I commend you for continuing your work on issues related to Environmental, Sustainability, Governance (ESG); private securities; and diversity and inclusion. And I look forward to today’s discussions on these important issues.

There has been a lot of discussion about ESG as of late, so today’s agenda, which includes a discussion about the ESG Subcommittee’s recommendations, is timely. [1] I’ve said this before and I’ll say it again: investors are using ESG-related information to make investment decisions and to allocate capital more than ever before. They are increasingly looking for sustainable investments, albeit investors have different thoughts about what “sustainability” means and how ESG factors inform their investment decisions. [2]

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The Distribution of Voting Rights to Shareholders

Vyacheslav Fos is Associate Professor of Finance and Clifford G. Holderness is Professor of Finance at Boston College Carroll School of Management. This post is based on their recent paper.

Our new paper, The Distribution of Voting Rights to Shareholders, is the first comprehensive study of the distribution of voting rights to shareholders. Using over 100,000 distributions of voting rights to shareholders, we find a wide array of evidence that firms and stock exchanges change when they notify investors of the voting record date based on the proposals involved and that sophisticated investors are often notified before retail investors. Trading volume is higher than normal both before and immediately after the record date. Stock prices decline significantly when they go from cum vote to ex vote. These changes in notification, trading volume, and stock prices are correlated both with how controversial votes are and how they ultimately turn out.

The right to vote is one of only three distributions made to shareholders. The other two distributions, cash dividends and rights offers, have been studied for years, with well in excess of 100 papers studying ex day changes with cash dividends alone. Moreover, the most common of the three distributions for most firms is the right to vote because it must occur prior to each shareholder meeting. Finally, voting is central to how shareholders control agency costs and influence key corporate decisions. Our findings show that the distribution of votes is far from straightforward mechanical event.

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Behavioral Psychology Might Explain What’s Holding Boards Back

Maria Castañón Moats is Leader, Paul DeNicola is Principal, and Leah Malone Director at the Governance Insights Center, PricewaterhouseCoopers LLP. This post is based on their PwC memorandum.

Introduction

The mythology of corporate boards goes something like this: put a group of high-achieving, experienced, strategic-minded, and diverse individuals in a room together. Add commitment and a lot of hard work. What you get is a top-notch board with a healthy culture and effective oversight. In practice, no boardroom culture is perfect. Every director has witnessed derailed discussions, dismissed opinions, side conversations, directors who dominate, and those who seem to be biting their tongue.

Boards are spending a great deal of time thinking about composition issues like director expertise and diversity. But what they might be missing is the importance of group dynamics—the human element. After all, each director brings his or her own habits, preferences, past experiences, and individual biases. These all impact the board’s culture and decision-making.

Boards can’t achieve a truly strong board culture without taking these dynamics into account. Here, we lay out how boards can spot the issues that may be holding them back. This requires directors to step back and ask some frank questions like: which topics get traction in the boardroom and which get ignored? Who is listened to, and who is dismissed? Why? We give you warning signs for spotting troublesome behavior. We also provide practical tools that your board (and C-suite) can use to improve boardroom culture and elevate the board’s performance.

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Protests from Within: Engaging with Employee Activists

David Larcker is Professor of Accounting at Stanford Graduate School of Business; Brian Tayan is a researcher with the Corporate Governance Research Initiative at Stanford Graduate School of Business; and Stephen A. Miles is founder and chief executive officer of The Miles Group. This post is based on their recent paper. Related research from the Program on Corporate Governance includes The Illusory Promise of Stakeholder Governance by Lucian A. Bebchuk and Roberto Tallarita (discussed on the Forum here); For Whom Corporate Leaders Bargain by Lucian A. Bebchuk, Kobi Kastiel, and Roberto Tallarita (discussed on the Forum here); Socially Responsible Firms by Alan Ferrell, Hao Liang, and Luc Renneboog (discussed on the Forum here); and Restoration: The Role Stakeholder Governance Must Play in Recreating a Fair and Sustainable American Economy—A Reply to Professor Rock by Leo E. Strine, Jr. (discussed on the Forum here).

We recently published a paper on SSRN, Protests from Within: Engaging with Employee Activists, that examines the rise of employee activism and its implications on corporate mission, management, and investment.

In recent years, we have seen a growing trend of stakeholder issues becoming prominent in discussions of corporate governance. This phenomenon is broadly known as ESG (environmental, social, and governance) and is characterized by pressure on companies to increase the attention they pay to and the investment they make in initiatives to advance the interests of all stakeholders—not just shareholders—including employees, suppliers, customers, and society.

One source of this pressure comes from an unexpected constituent: the company’s own employee base. To a greater extent than in the past, workers are pressuring employers to take policy stances and advocate on behalf of social, environmental, or political issues not necessarily directly related to the company’s core business. The issues involved are extremely broad and include environmental sustainability; reducing waste, pollution, or carbon emissions; workplace equality; diversity and inclusion; human rights violations; immigration policy; government defense contracting; gun control; free speech; and protesting statements of policymakers or politicians. Employee activism is related in spirit to unionization efforts—the crucial difference being that unionization efforts focus on improved working conditions for employees (through wage increases, benefits, safety, etc.) while activism encourages broader social and political activity which may or may not benefit an individual employee.

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A SPAC-tacular Distraction Compelling Opportunities in “Other” Event-Driven Investments

Doug Francis is Head of Event-Driven Strategies and Sam Klar is Portfolio Manager of Event-Driven Strategies at GMO LLC. This post is based on their GMO memorandum.

The combination of record-level SPAC issuance and a flood of non-SPAC M&A has created a supply-demand imbalance in the event-driven asset class. With SPACs garnering most of the limelight, we believe investors are missing an excellent opportunity to deploy capital into “other” event-driven investments, most prominently merger arbitrage.

A Wild Year

It’s certainly been an interesting 12 months in the event-driven asset class. From soft catalyst event situations upended by the onset of COVID in Q1 2020, to the March 2020 “Arbageddon” widening in merger arbitrage spreads, to countless instances of hedge fund repositioning causing atypical volatility in typically boring share class arbitrage. It’s been a truly wild ride.
The combination of Q1 2020 performance challenges for the asset class and slow-to-recover new merger volume last spring and summer led to the perception that there was “nothing to do” in event-driven. The record issuance of SPACs in 2020 and early 2021, accompanied by some high-profile bouts of outperformance in former SPACs like Nikola, amended that narrative slightly. Recent commentary has been willing to stipulate that there was nothing to do in event-driven, apart from SPACs.

The Current Opportunity

As experienced event-driven investors, we’ve often chafed at the notion that event-driven’s attractiveness waxes and wanes as much as commentators would suggest. Indeed, our team mantra is “there’s almost always something to do,” and our historical results have supported this claim’s veracity.

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Activist Shareholder Proposals and HCM Disclosures in 2021

Mike Delikat is partner, Jessica James is senior associate, and Alex Mitchell is an associate at Orrick, Herrington & Sutcliffe LLP. This post is based on their Orrick memorandum. Related research from the Program on Corporate Governance includes Social Responsibility Resolutions by Scott Hirst (discussed on the Forum here).

Since 2015, pay gap disclosure has been front and center on the activist shareholder proposal landscape from an employment and workforce perspective. Following closely on the heels of tragic events of last summer and the significant advancement of the Black Lives Matter movement, activist shareholder groups have pivoted away from proposals requiring disclosures of pay gap statistics and are instead focused on other dimensions of internal diversity, equity, and inclusion (“DEI”). These initiatives seek more broad-based disclosure of whether and how companies are managing gender and racial disparities in representation—including, for example, in the boardroom and at senior management levels within an organization. Combined with recent rule changes at the U.S. Securities and Exchange Commission (“SEC”) with respect to required Human Capital Management disclosures, public companies should prepare for how they will respond to proposals seeking different and new disclosures regarding steps they are taking to expand and maintain diversity within their workforces.

A Brief History Pay Gap Shareholder Proposals

Over the last five years, shareholder proposals on pay equity evolved to become an important issue at the operational and board level—particularly for companies in the technology and finance industries—with competitive, legal, and cultural implications. These proposals initially focused on undefined “pay gap” disclosures—meaning the overall percentage pay difference between male and female employees—as well as steps taken or proposed to address unexplained disparities. Over time, these proposals sought more granular gender and racial pay gap data, with an emphasis on median pay gap data—meaning a single, raw, unadjusted data point reflecting the middle compensation value among all female employees in a workforce compared to the same value for men. Critics of median pay gap disclosures point out that this measure of pay does not account for legitimate differences in compensation between employees or more nuanced information regarding a company’s highest and lowest earners.

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2020 Developments in U.S. Securities Fraud Class Actions Against Non-U.S. Issuers

David H. KistenbrokerJoni S. Jacobsen and Angela M. Liu are partners at Dechert LLP. This post is based on a Dechert memorandum by Mr. Kistenbroker, Ms. Jacobson, Ms. Liu, Christine Isaacs and Siobhan Namazi, and Austen Boer.

Notwithstanding a year of unprecedented economic and societal change amidst a global pandemic, non-U.S. issuers continued to be targets of securities class actions filed in the United States. Indeed, despite widespread court closures due to the coronavirus pandemic, 2020 continued to see an uptick in the number of securities class action lawsuits brought against non-U.S. issuers. It is therefore imperative that, regardless of the economic climate, non-U.S. issuers stay vigilant of filing trends and take proactive measures to mitigate their risks.

In 2020, plaintiffs filed a total of 88 securities class action lawsuits against non-U.S. issuers.

  • As was the case in 2019, the Second Circuit continues to be the jurisdiction of choice for plaintiffs to bring securities claims against non-U.S. issuers. More than 50% of these 88 lawsuits (49)3 were filed in courts in the Second Circuit. A clear majority (35) of these 49 lawsuits were filed in the Southern District of New York. The next most popular circuit was the Third Circuit, with 22 lawsuits initiated in courts there. The Ninth and Tenth Circuits followed with 15 and two complaints, respectively.
  • Of the 88 non-U.S. issuer lawsuits filed in 2020, 28 were filed against non-U.S. issuers with a headquarters and/ or principal place of business in China, and 12 were filed against non-U.S. issuers with a headquarters and/or principal place of business in Canada.
  • As was the case in 2018 and 2019, the Rosen Law Firm P.A. continued to be the most active plaintiff law firm in this space, leading with most first-in-court filings against non-U.S. issuers in 2020 (25). However, departing from the trend of the last several years, Pomerantz LLP was appointed lead counsel in the most cases in 2020 (14); the Rosen Law Firm closely followed with 13 appointments as lead counsel.
  • Remarkably, the majority of the suits (28) were filed in the 2nd quarter, at the height of the coronavirus pandemic for most areas throughout the United States, particularly in the Southern District of New York.
  • While the suits cover a diverse range of industries, the majority of the suits involved the biotechnology and medical equipment industry (14), followed by the software and programming industry (9), the consumer and financial services industry (7), and the communications services industry (7).
  • Of the 22 lawsuits brought against European-headquartered companies, five were filed against firms headquartered in the United Kingdom and four were filed against firms headquartered in Germany.

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Are Women Underpriced? Board Diversity and IPO Performance

P. Raghavendra Rau is Sir Evelyn de Rothschild Professor of Finance at the University of Cambridge; Jason Sandvik is Assistant Professor of Finance at Tulane University; and Theo Vermaelen is UBS Professor of Investment Banking at INSEAD. This post is based on their recent paper. Related research from the Program on Corporate Governance includes Politics and Gender in the Executive Suite by Alma Cohen, Moshe Hazan, and David Weiss (discussed on the Forum here).

Over the past two decades, academic research has found little evidence that gender diversity on the boards of directors has a positive impact on firm value. In recent years, however, practitioners have increasingly argued that diversity among the board of directors has a positive economic impact on firms. In January 2020, the Nasdaq Stock Market filed a proposal with the Securities and Exchange Commission to adopt Rule 5605(f) (Diverse Board Representation) which argued for mandatory diversity on boards of firms listed on NASDAQ, based on economic arguments that diverse boards were positively associated with improved corporate governance and financial performance. In the same month, Goldman Sachs announced it would stop financing the Initial Public Offerings (IPOs) of companies in the U.S. and Europe with only white male board members again on the basis of superior performance by firms with gender-diverse boards.

In our paper Are Women Underpriced? Board Diversity and IPO Performance, we examine the economic impact of gender diversity on the performance of IPOs from 2000–2018. IPOs are an appropriate venue to study the effect of shareholder preferences on gender diversity because it is the only type of corporate transaction where investors can express their opinions about company valuation. Specifically, the book-building process provides a unique opportunity for investors to give feedback on the valuation range proposed by the investment bank. Investors can show that they value stocks differently from traditional valuation methods, such as discounted cash flows and earnings multiples, by incorporating a premium for diversity, for example. Because the underpricing of IPO shares reflects the difference between market valuations and the valuations by the investment bank, such a premium can be measured directly. There is no other event where this is empirically feasible. In addition, investment banks have an outsized impact on the terms of the offering and the structure of the firm. For example, the insistence by Goldman Sachs that it would not consider taking public a firm that did not have a gender-diverse board is unique. Investors can invest in any type of publicly listed firm, such as “sin stock” firms, depending on their preferences. However, if a non-gender-diverse firm is unable to go public, investors are necessarily constrained in expressing their preferences. Finally, IPO underpricing is likely to be less subject to the endogeneity problems that plague many studies that find a positive relation between gender diversity and stock market or operating performance. Indeed, it is not obvious whether diversity causes performance or vice versa. On the other hand, it is implausible that underpricing encourages firms to put women on the board.

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