Posts Tagged ‘Shareholder activism’

Shareholder Voting in an Age of Intermediary Capitalism

Posted by June Rhee, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Wednesday April 16, 2014 at 9:00 am
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Editor’s Note: The following post comes to us from Paul H. Edelman and Randall S. Thomas, Professor of Law and Mathematics and Professor of Law and Business, respectively, at Vanderbilt University, and Robert Thompson, Professor of Business Law at the Georgetown University Law Center.

Shareholder voting, once given up for dead as a vestige or ritual of little practical importance, has come roaring back as a key part of American corporate governance. Where once voting was limited to uncontested annual election of directors, it is now common to see short slate proxy contests, board declassification proposals, and “Say on Pay” votes occurring at public companies. The surge in the importance of shareholder voting has caused increased conflict between shareholders and directors, a tension well-illustrated in recent high profile voting fights in takeovers (e.g. Dell) and in the growing role for Say on Pay votes. Yet, despite the obvious importance of shareholder voting, none of the existing corporate law theories coherently justify it.

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European Commission Proposes to Moderate Short-termism and Reduce Activist Attacks

Editor’s Note: 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 memorandum by Mr. Lipton.

Two articles (among several) in a comprehensive proposal to revise EU corporate governance would have a significant beneficial impact if they were to be adopted in the United States. In large measure they mirror recommendations by Chief Justice Leo E. Strine, Jr., in two essays: Can We do Better by Ordinary Investors? A Pragmatic Reaction to the Dueling Ideological Mythologists of Corporate Law, 114 Columbia Law Review 449 (Mar. 2014) and One Fundamental Corporate Governance Question We Face: Can Corporations Be Managed for the Long Term Unless Their Powerful Electorates Also Act and Think Long Term? 66 Business Lawyer 1 (Nov. 2010).

…continue reading: European Commission Proposes to Moderate Short-termism and Reduce Activist Attacks

Current Thoughts About Activism, Revisited

Posted by Martin Lipton, Wachtell, Lipton, Rosen & Katz, on Tuesday April 8, 2014 at 9:19 am
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Editor’s Note: 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 memorandum by Mr. Lipton, Steven A. Rosenblum, and Sabastian V. Niles. Wachtell Lipton’s earlier memorandum on current thoughts on activism is available here, their earlier memoranda criticizing an empirical study by Bebchuk, Brav and Jiang on the long-term effects of hedge fund activism are available here and here, and their earlier memoranda criticizing the Shareholder Rights Project are available here and here. The Bebchuk-Brav-Jiang study is available here, Lucian Bebchuk’s earlier response to the criticism of the Shareholder Rights Project is available here, and the Bebchuk-Brav-Jiang responses to the Wachtell Lipton criticisms of their study are available here and here.

We published this post last August. Since then there have been several developments that prompt us to revisit it; adding the first three paragraphs below.

First, Delaware Supreme Court Chief Justice Leo E. Strine, Jr. published a brilliant article in the Columbia Law Review, Can We Do Better by Ordinary Investors? A Pragmatic Reaction to the Dueling Ideological Mythologists of Corporate Law in which he points out the serious defects in allowing short-term investors to override carefully considered judgments of the boards of directors of public corporations. Chief Justice Strine rejects the argument of the academic activists and activist hedge funds that shareholders should have the unfettered right to force corporations to maximize shareholder value in the short run. We embrace Chief Justice Strine’s reasoning and conclusions.

…continue reading: Current Thoughts About Activism, Revisited

Three Courts Dismiss Lawsuits for Lack of Subject Matter Jurisdiction

Posted by Noam Noked, co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Sunday April 6, 2014 at 9:00 am
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Editor’s Note: The following post comes to us from Yafit Cohn, Associate at Simpson Thacher & Bartlett LLP, and is based on a Simpson Thacher memorandum; the full text, including footnotes, is available here.

This proxy season, rather than following the traditional route of seeking no-action relief from the Securities and Exchange Commission (“SEC”) (or, in one instance, after receiving a no-action denial), at least four companies have filed lawsuits against activist investor John Chevedden, in each case requesting declaratory judgment that the company may properly exclude Chevedden’s proposed shareholder resolution from the proxy materials for its 2014 annual meeting. While companies have enjoyed judicial victories against Chevedden in the recent past (including during the current proxy season), this month, for the first time, three federal courts dismissed actions against Chevedden, citing lack of subject matter jurisdiction.

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Activist Abuses Require SEC Action on Section 13(d) Reporting

Editor’s Note: Theodore N. Mirvis is a partner in the Litigation Department at Wachtell, Lipton, Rosen & Katz. The following post is based on a Wachtell Lipton memorandum by Mr. Mirvis, Andrew R. Brownstein, Adam O. Emmerich, David A. Katz, and David C. Karp. Work from the Program on Corporate Governance about about Section 13(d) and blockholder disclosure includes The Law and Economics of Blockholder Disclosure by Lucian Bebchuk and Robert J. Jackson, Jr., discussed on the forum here.

Three years ago we petitioned the SEC to modernize the beneficial ownership reporting rules under Section 13(d) of the Securities Exchange Act of 1934 (see our rulemaking petition, our memos of March 7, 2011, April 15, 2011, March 3, 2008 and our article in the Harvard Business Law Review). Since we filed our petition, activist hedge funds have grown more brazen in exploiting the existing reporting rules to the disadvantage of ordinary investors.

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Shareholder Activism in the M&A Context

Editor’s Note: David A. Katz is a partner at Wachtell, Lipton, Rosen & Katz specializing in the areas of mergers and acquisitions and complex securities transactions. This post is based on an article by Mr. Katz and Laura A. McIntosh that first appeared in the New York Law Journal; the full article, including footnotes, is available here. This post is part of the Delaware law series, which is cosponsored by the Forum and Corporation Service Company; links to other posts in the series are available here.

With M&A activity expected to increase in 2014, shareholder activism is an important factor to be considered in the planning, negotiation, and consummation of corporate transactions. In 2013, a year of relatively low deal activity, it became clear that activism in the M&A context was growing in scope and ambition. Last year activists were often successful in obtaining board seats and forcing increases in deal consideration, results that may fuel increased efforts going forward. A recent survey of M&A professionals and corporate executives found that the current environment is viewed as favorable for deal-making, with executives citing an improved economy, decreased economic uncertainty, and a backlogged appetite for transactions. There is no doubt that companies pursuing deals in 2014—whether as a buyer or as a seller—will have to contend with activism on a variety of fronts, and advance preparation will be important.

…continue reading: Shareholder Activism in the M&A Context

Do-It-Yourself Activism

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Thursday March 13, 2014 at 7:58 am
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Editor’s Note: The following post comes to us from Gerry Hansell, senior partner and managing director at The Boston Consulting Group, and is based on a BCG publication by Mr. Hansell, Tawfik Hammoud, Alexander Roos, and Vinay Shandal. Recent work from the Program on Corporate Governance about hedge fund activism includes The Long-Term Effects of Hedge Fund Activism by Lucian Bebchuk, Alon P. Brav, and Wei Jiang.

Many corporate executives and board members view activist investors as little more than bullies with calculators: they seem to hunt in packs, force disruptive and risky changes, and use simplistic benchmarks as their call to action.

Yet their ranks have grown rapidly, and activist investors now attack even the largest and most successful companies. Worldwide, the assets managed by activist investors have increased sevenfold over the past decade, from $12 billion to $85 billion. Since 2005, the number of activist campaigns in the U.S. has increased 15 percent per year, reaching a total of 144 in 2012. These investors have pushed for the return of excess cash to shareholders at Apple; urged restructuring through spinoffs and divestitures at PepsiCo, Sony, Timken, and McGraw-Hill; and called for the replacement of senior management or board members at Abercrombie & Fitch, Yahoo, and Sotheby’s.

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Still Running Away from the Evidence: A Reply to Wachtell Lipton’s Review of Empirical Work

Posted by Lucian Bebchuk, Harvard Law School, Alon Brav, Duke University, and Wei Jiang, Columbia Business School, on Wednesday March 5, 2014 at 9:02 am
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Editor’s Note: Lucian Bebchuk is Professor of Law, Economics, and Finance at Harvard Law School. Alon Brav is Professor of Finance at Duke University. Wei Jiang is Professor of Economics and Finance at Columbia Business School. This post responds to a Wachtell Lipton memorandum by Martin Lipton, Empiricism and Experience; Activism and Short-Termism; the Real World of Business, available on the Forum here. This memorandum presents a review of empirical work on activism and uses this review to criticize the empirical study by Bebchuk, Brav, and Jiang on The Long-Term Effects of Hedge Fund Activism. The study is available here, and its results are summarized in a Forum post and in a Wall Street Journal op-ed article. Bebchuk and Lipton will discuss the evidence on hedge fund activism at the Harvard Roundtable on Activist Interventions, which will take place later this month.

In a 17-page memorandum issued by the law firm of Wachtell Lipton (Wachtell), Empiricism and Experience; Activism and Short-Termism; the Real World of Business, the firm’s founder Martin Lipton put forward new criticism of our empirical study, The Long-Term Effects of Hedge Fund Activism. Lipton’s critique is based on a review of a large number of works which, he asserts, back up empirically the view that our study questions. Following our examination of each of the studies noted by Lipton, this post responds to Lipton’s empirical review. We show that Lipton’s review fails to identify any empirical evidence that is inconsistent with our findings or backs the claim of Wachtell that our study questions.

Our study shows that the myopic activisms claim that Lipton and his firm have long asserted—the claim that that interventions by activist hedge funds are in the long term detrimental to the involved companies and their long-term shareholders—is not supported by the data. Seeking to cast doubt on the validity of our finding, Lipton’s memorandum cites twenty-seven works by academics or policymakers, and asserts that these studies demonstrate that our conclusion—that the myopic activism claims is not supported by the data—is “patently false.” In this post, we explain that this assertion is not supported by the cited studies; most of the studies are not even related to the subject of the consequences of hedge fund activism, and those that are related to it do not provide evidence contradicting our findings.

Below we begin with discussing the relevant background and then review the cited studies and explain why, in contrast to the impression Lipton’s memo seeks to make, they do not provide an empirical basis for the myopic activists view. Instead of running away from the empirical evidence, while constantly shooting back, Wachtell Lipton should accept that its myopic activists claim is not supported by the data. Indeed, as one of us plans to discuss in a separate post, despite its repeated attacks on our study, Wachtell is shifting its position toward avoiding reliance on the myopic activism claim in its opposition to hedge fun activism, and this shift should lead Wachtell and its clients to rethink their attitude to hedge funds activists.

…continue reading: Still Running Away from the Evidence: A Reply to Wachtell Lipton’s Review of Empirical Work

UK Shareholder Activism: A Toolbox for 2014

Posted by Kobi Kastiel, Co-editor, HLS Forum on Corporate Governance and Financial Regulation, on Sunday March 2, 2014 at 9:00 am
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Editor’s Note: The following post comes to us from Jeffery Roberts, senior partner in the London office of Gibson, Dunn & Crutcher LLP, and is based on a Gibson Dunn alert by Mr. Roberts.

Following an increase in shareholder and investor activism beyond pure executive remuneration issues in the United Kingdom (UK) in 2013, with some 25 companies targeted for public campaigns, this post provides a summary of certain principles of English law and UK and European regulation applicable to UK listed public companies and their shareholders that are relevant to the expected further increase in activism in 2014. This post covers (i) stake-building; (ii) shareholders’ rights to require companies to hold general meetings; (iii) shareholders’ rights to propose resolutions at annual general meetings; and (iv) recent developments in these and related areas through raising and answering a number of relevant questions.

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Shareholder Activism in M&A Transactions

Posted by Alan M. Klein, Simpson Thacher & Bartlett LLP, on Wednesday February 26, 2014 at 9:06 am
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Editor’s Note: Alan M. Klein is a Partner in the Corporate Department at Simpson Thacher & Bartlett LLP. The following post is based on a Simpson Thacher memorandum.

Shareholder activism, which has increasingly occupied headlines in recent years, continued along its sharp growth trajectory in 2013. The number of activists, as well as the amount of capital backing them, has increased substantially, as has the sophistication and effectiveness of their tactics.

In addition, last year was particularly noteworthy for the role shareholder activism played in the M&A sector, including a number of high-profile attacks on announced business combination transactions. In November 2013, we hosted a conference to discuss the rise of shareholder activism as it relates to M&A activity. We gathered a number of industry-leading experts to discuss significant recent developments and emerging trends and to explore tactics and responses from a company and an activist perspective. The panel discussions at this conference provided a number of interesting insights, observations and data points, and several of the key themes and highlights are outlined below.

…continue reading: Shareholder Activism in M&A Transactions

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