The Rise of Agency Capitalism and the Role of Shareholder Activists in Making It Work

The past 50 years have seen a fundamental change in the ownership of U.S. public companies, one in which the relatively small holdings of many individual shareholders have been supplanted by the large holdings of institutional investors, such as pension funds, mutual funds, and bank trust departments. Such large institutional investors are now said to own over 70% of the stock of the largest 1,000 U.S. public corporations; and in many of these companies, as the authors go on to note, “as few as two dozen institutional investors” own enough shares “to exert substantial influence, if not effective control.” But this reconcentration of ownership does not represent a complete solution to the “agency” problems arising from the “separation of ownership and control” that troubled Berle and Means, the relative powerlessness of shareholders in the face of a class of “professional” corporate managers who owned little if any stock. As the authors note, this shift from an era of “managerial capitalism” to one they identify as “agency capitalism” has come with a somewhat new and different set of “agency conflicts” and associated costs. The fact that most institutional investors hold highly diversified portfolios and compete (and are compensated) on the basis of “relative performance” provides them with little incentive to engage in the vigorous monitoring of corporate performance and investor activism that could address shortfalls in such performance. As a consequence, such large institutional investors—not to mention the large and growing body of indexers like Vanguard and BlackRock—are likely to appear “rationally apathetic” about corporate governance. But, as the authors also point out, there is a solution to this agency conflict—and to the corporate governance “vacuum” that has been said to result from the alleged apathy of well‐diversified (and indexed) institutional investors: the emergence of shareholder activists. The activist hedge funds and other specialized activists who have come on the scene during the last 15 or 20 years are now playing an important role in supporting this relatively new ownership structure. Instead of taking control positions, the activists “tee‐up” strategic business and financing choices that are then decided upon by the vote of institutional shareholders that are best characterized not as apathetic, but as rationally “reticent”; that is, they allow the activists, if not to do their talking for them, then to serve as a catalyst for the expression of institutional shareholder voice. The institutions are by no means rubber stamps for activists' proposals; in some cases voting for the activists' proposals, in many cases against them, the institutions function as the long‐term arbiters of whether such proposals should and will go forward. In the closing section of the article, the authors discuss a number of recent legal decisions that appear to recognize this relatively new role played by activists and the institutions that choose to support them (or not)—legal decisions that appear to confirm investors' competence and right to be entrusted with such authority over corporate decision‐making.     

Global Drivers of and Local Resistance to French Shareholder Activism

Shareholder activism in France has made significant advances during the past 25 years even as it continues to face formidable sources of local resistance. But if the list of corporate governance improvements since 1989 described by the authors might lead one to conclude that France now has minority shareholder protection and shareholder activism comparable to those of the U.S. or U.K., powerful local interests, including much of French management, labor, and government, continue to mount effective resistance to such forces for change. The French government still works closely with French business elites and unions to manage both individual companies and the general economy. And government officials continue to speak publicly of “protecting” French firms from “illegitimate” foreign shareholders. Accordingly, the authors characterize French corporate governance as a “hybrid” model of shareholder activism, one that incorporates the perspectives and interests of the classic French stakeholder model as well as an emerging shareholder value movement. Although foreign institutional investors have increased their shareholdings in French companies and promoted “best practice” governance rules, particularly with respect to voting rights, local forces will continue to resist aggressive shareholder activism. Such a hybrid model makes the outcomes of shareholder activism less predictable, a risk that foreign investors and companies often respond to by seeking alliances with local proxy advisers and investor associations to gain “legitimacy.”     

The role of derivatives in hedge fund activism

Using a hand-collected sample of hedge fund activist engagements from 1994 to 2014, this study analysed the role of derivatives in the hedge fund activism. Evidence shows abnormal returns of targets of hedge fund activists who did not use derivatives exceeded the abnormal returns of targets of hedge fund activists who employed derivatives around the activist engagement disclosure period. We also find that idiosyncratic volatility of the targets of hedge fund activists who did not use derivatives was more reduced than that of the targets of hedge fund activists who used derivatives. Finally, the probability of takeovers increases for hedge fund activists who did not use derivatives.     

Hedge fund activism,CEO turnover and compensation

This paper examines the governance role of hedge fund activists by analyzing the impact of these activists on CEO turnover, CEO pay, and CEO pay-performance link in targeted companies. Using the difference-in-difference approach, we first find significantly higher CEO turnover following hedge fund activism. After we split target companies into the CEO-turnover and non-CEO-turnover sub-samples, we find that only new CEOs in targeted companies get more compensation following hedge fund activism while incumbent CEO pay does not significantly change. The relationship between CEO bonuses and return on assets following hedge fund activism also differs across the subsamples split by CEO turnover. Pay-performance relationship is enhanced by hedge fund activism for new CEOs, but not for incumbent CEOs. In additional analyses, we document that CEO turnover is positively associated with Tobin’s Q and shareholder votes on Say on Pay in target companies after hedge fund activism.     

U.S. Corporate Governance: Accomplishments and Failings A Discussion with Michael Jensen and Robert Monks

Two of America's most prominent shareholder activists discuss three major issues surrounding the U.S. corporate governance system: (1) the case for increasing shareholder “democracy” by expanding investor access to the corporate proxy; (2) lessons for public companies in the success of private equity; and (3) the current level and design of CEO pay. On the first of the three subjects, Robert Monks suggests that the U.S. should adopt the British convention of the “extraordinary general meeting,” or “EGM,” which gives a majority of shareholders who attend the meeting the right to remove any or all of a company's directors “with or without cause.” Such shareholder meetings are permitted in virtually all developed economies outside the U.S. because, as Monks goes on to say, they represent “a far more efficient and effective solution than the idea of having shareholders nominate people for the simple reason that even very involved, financially sophisticated fiduciaries are not the best people to nominate directors.” Moreover, according to both Jensen and Monks, corporate boards in the U.K. do a better job than their U.S. counterparts of monitoring top management on behalf of shareholders. In contrast to the U.S., where the majority of companies continue to be run by CEO/Chairmen, over 90% of English companies are now chaired by outside directors, contributing to “a culture of independent‐minded chairmen capable of providing a high level of oversight.” In the U.S., by contrast, most corporate directors continue to view themselves as “employees of the CEO.” And, as a result, U.S. boards generally fail to exercise effective oversight and control until outside forces—often in the form of activist investors such as hedge funds and private equity—bring about a “crisis.” In companies owned and run by private equity firms, by contrast, top management is vigorously monitored and controlled by a board made up of the firm's largest investors. And the fact that the rewards to the operating heads of successful private equity‐controlled firms are typically multiples of those received by comparably effective public company CEOs suggests that the problem with U.S. CEO pay is not its level, but its lack of correlation with performance.     

Nigerian professional investors' sense-making of the impact of shareholder activism on corporate accountability

This study investigates the perceptions of professional investors (PIs) on the impact of three groups of shareholder activists (i.e., reputable, sophisticated, or institutional) on corporate accountability in a weak institutional context and how this shapes the PIs’ investment recommendations. Relying on a sense-making theoretical perspective of the power and competence of shareholder activists obtained through semi-structured interviews with 27 Nigerian PIs, we reveal that the impact of shareholder activism occurs in three activism-accountability dimensions: dominant, insignificant, and emerging. Subsequently, we unpack factors that explain the power and influence of the dominant activism of reputable activists, the insignificant activism of sophisticated activists and the emerging activism of institutional activists. By advocating a contextual understanding of shareholder activism, this article sheds much-needed insights into the concept of ‘activism-accountability’ in a weak institutional environment.     

The costs of shareholder activism: Evidence from a sequential decision model

This paper provides benchmarks for monitoring costs and evaluates the net returns to shareholder activism. I model activism as a sequential decision process consisting of demand negotiations, board representation, and proxy contest and estimate the costs of each activism stage. A campaign ending in a proxy fight has average costs of $10.71 million. I find that the estimated monitoring costs reduce activist returns by more than two-thirds. The mean net activist return is close to zero but the top quartile of activists earns higher returns on their activist holdings than on their non-activist investments. The large-sample evidence presented in this paper aids in understanding the nature and evolution of activist engagements.     

Risk Management,Corporate Governance,and the Search for Long-Term Investors

This discussion explores a number of ways that more effective risk management, corporate governance, and communication with investors can help companies increase their effciency and long-run value. According to one of the panelists, recent surveys of corporate directors suggest that companies should devote more time and attention to three issues—strategy, risk management, and succession planning—and that strategy and risk are the “flipsides of the same coin.” As the panelist argues, “You can't talk about strategy without talking about what risks you're going to take—and what risks you decide to take has to depend on the core competencies that drive the corporate strategy.” In addition to making risk management a critical part of corporate strategy, another notable recommendation is to communicate a company's strategy and business plan as clearly as possible to investors, with the aim of attracting more sophisticated, long-term shareholders. Contrary to popular belief, such a group may well include some hedge funds and other activist shareholders. According to a newly released report on shareholder activism (produced and cited by another panelist), corporate boards should work harder to identify and engage the “largest 10 shareholders in the organization,” with the ultimate goal of cultivating a shareholder base that buys into the company's strategy.     

The Evolving Shareholder Activist Landscape (How Companies Can Prepare for It)

Shareholder activists remain an important force in the boardroom. More than 60 activist campaigns were initiated against S&P 1500 companies in 2016. And although activist hedge funds have under‐performed the broad market since 2013, activists’ assets under management are still nearly double their level of four years ago, and announcements of their campaigns continue to be met with increases in the target companies’ stock prices. At the same time, shareholder activism continues to evolve in constructive ways. Most important is the growing support of mainstream investors, as reflected in the increased backing of activist proposals by traditional institutional asset managers and the falling number of openly confrontational campaigns. Activists have also had continued success in gaining board representation, particularly at the largest target companies. And more board seats are being gained by activists in early settlements, which have also been associated with higher stock returns than those campaigns that resulted in later settlements or ended in a proxy contest. During the period 2006–2016, over 40% of activist campaigns made public demands for specific strategic actions, such as selling assets, spinning off divisions, or seeking buyers for the companies. And activist investors have been remarkably effective in accomplishing such changes in that those activist targets urged to seek buyers were four times more likely to be acquired than the average company. At the same time, a growing number of campaigns have focused on operating efficiency, capital allocation, business strategy, and other changes that often require longterm engagement. Perhaps because of their longer‐term focus, such campaigns have also more been likely to result in board seats for the activists. The authors' findings contain a number of messages for corporate managements and boards: listen to your shareholders, and assess your strengths and vulnerabilities through an activist's eyes; build an effective board; articulate your strategy clearly; consider the possibility of activist intervention when planning M&A transactions; and engage early when approached by an activist.     

The diffusion of corporate governance to emerging markets: Evaluating two dimensions of investor heterogeneity

This study investigates whether foreign institutional investors can enhance shareholder value in emerging markets. We pay special attention to two dimensions of investor heterogeneity: whether investors declare themselves to be activists, and whether activists come from countries with strong traditions of investor activism (identified by the incidence of hostile takeovers in their respective home countries). First, using an event study approach with regard to announcements of block purchases by foreign institutional investors in Korea, we find that stock prices increase only when foreign institutional investors declare themselves to be activists (increasing on average by 3% over a 20-day window). Second, we find that positive stock price reactions are more pronounced when the activist investors come from source countries with strong traditions of investor activism (increasing on average by 7% over a 20-day window). Third, we find that target firms are more likely to reduce cash holdings, raise leverage ratios, and peg dividend payouts, stock repurchases, and CEO turnover more closely to changes in earnings, but only if foreign activists come from countries with strong traditions of activism. We address possible selection bias by propensity score matching.     

Blockholders Are More Common in the United States Than You Might Think*

Finance scholars have long characterized the large publicly traded U.S. company as having a fragmented ownership structure with a diffuse shareholder base—significantly more diffuse than comparable companies in most other countries. But the findings of the author's recent study, which incluudes large amounts of “hand-collected data” on the share ownership of U.S. companies, are strikingly at odds with this characterization. As reporteed in the study, 96% of a sample of 375 randomly chosen, publicly traded U.S. corporations—including companies like American Express and McDonald's—had at least one shareholder who owned at least 5% of the firm's common stock. In fact, such blockholders as a group owned almost 40% of the typical U.S. company. There was, to be sure, an inverse relation between ownership concentration and firm size, but ownership was unexpectedly concentrated even among the largest companies, with 89% of the S&P 500 companies in the sample having at least one 5% blockholder. What's more, the ownership concentration of U.S. public companies turned out to be remarkably similar to the average ownership concentration of large samples of listed companies from 22 European and East Asian countries. More specifically, the ownership structure of U.S. companies—after controlling for differences in company size—appears to all in the middle of the distribution of those countries, whether one looks at the proportion of companies with block-holders or the blockholders' average percentage holdings.     

Session III: Securities Law in Twenty‐First Century America: A Conversation with SEC Commissioner Robert Jackson

SEC Commissioner Robert Jackson comments on three major issues the Commission has been investigating: (1) the concentration of ownership among American stock exchanges; (2) the extent of common ownership of, and potential for undue influence over, U.S. corporations by large institutional shareholders; and (3) the role of corporate boards in promoting and protecting stakeholder interests as well as shareholder interests. In the first of the three areas, Jackson argues that the ownership of 12 of the 13 U.S. stock exchanges by just three financial conglomerates suggests a competitiveness problem— one that, despite the significant reductions in trading costs during the last 15 years, should receive further investigation. To the concerns raised by the common and increasingly concentrated ownership of U.S. public companies by institutional shareholders, the Commissioner's main response is to note that whatever culpability corporate America is forced to assume for our large and growing environmental and social problems must be shared with the largest U.S. institutional shareholders, whose collective resources and influence confer a responsibility to help guide companies when responding to such problems. Finally, on the issue of stakeholder theory and ESG, Jackson insists that asking corporate boards to put the interests of all stakeholders on a par with their shareholders’ when making strategic business decisions would be a mistake. Besides creating a major accountability problem, the adoption of stakeholder theory in place of “the clear, single‐minded objective function of increasing long‐run shareholder value” would deprive boards of their principal guide “when making the difficult tradeoffs among stakeholders that effective oversight and management of public companies require.”     

Entrepreneurial Shareholder Activism: Hedge Funds and Other Private Investors

We examine recent confrontational activism campaigns by hedge funds and other private investors. The main parallels between the groups are a significantly positive market reaction for the target firm around the initial Schedule 13D filing date, significantly positive returns over the subsequent year, and the activist's high success rate in achieving its original objective. Further, both activists frequently gain board representation through real or threatened proxy solicitations. Two major differences are that hedge funds target more profitable firms than other activists, and hedge funds address cash flow agency costs whereas other private investors change the target's investment strategies.     

Does Mandatory Shareholder Voting Prevent Bad Acquisitions? The Case of the United Kingdom

A large number of studies have shown that many companies have made large acquisitions that their own shareholders probably would not have approved if given the opportunity to do so. In this article, which summarizes the findings of their study published recently in the Review of Financial Studies, the authors present evidence that suggests the effectiveness of shareholder voting as a corporate governance mechanism designed to prevent such value‐reducing acquisitions from taking place. The authors' study focused on acquisitions in the U.K. where proposed transactions that exceed a series of 25% relative size (target's as a percentage of the acquirer's) thresholds are defined as “Class 1” transactions and require shareholder approval. The authors found strikingly positive stock market reactions to the announcements of such Class 1 acquisitions—as compared to zero if not negative average announcement returns for Class 2 transactions that were not subject to a shareholder vote. And when the authors extended their analysis to U.S. M&A markets, they found that the larger (again, in relative size) U.S. deals—large enough that they would have required a shareholder vote in the U.K.—provided returns to their shareholders that were negative, and thus significantly lower than those of their U.K counterparts. In terms of the economic significance of their findings, the authors found that Class 1 transactions were associated with aggregate gains to acquirer shareholders of $13.6 billion. By contrast, U.S. transactions of similar size, which again were not subject to shareholder approval, were associated with aggregate losses of $210 billion for acquirer shareholders; and Class 2 U.K. transactions, also not subject to shareholder approval, were associated with aggregate losses of $3 billion. In a further series of tests designed to shed light on how mandatory shareholder voting generates such substantial value improvements for acquirer shareholders, the authors also found evidence suggesting that when faced with the requirement of a shareholder vote, CEOs and boards are more likely to resist the temptation to overpay to close a deal. And the fact that the shareholders of the Class 1 acquirers did not end up blocking a single transaction that was submitted to a vote suggests that this mechanism works without the need for shareholders to actually vote down a deal. In other words, mandatory shareholder voting on acquisitions is a powerful deterrent to “bad deals” because, first of all, the vote is triggered automatically by the relative size tests and, second, CEOs and boards, with the help of their bankers, have a pretty good idea well in advance of the vote whether their shareholders are going to vote “no”—and such a vote would be viewed by top management as a major rejection, a strong vote of no confidence.     

Does institutional activism increase shareholder wealth? Evidence from spillovers on non-target companies

This paper presents evidence of the shareholder wealth effect of institutional activism using its spillovers on non-target companies. The spillovers are instructive because they are a response to an exogenous shock and thus create an environment to conduct a clean event study. In particular, we examine the spillover effects of the first target announcement of the Korea Corporate Governance Fund. As the very first sign of institutional activism in the country, this announcement creates an expectation of similar governance efforts even in non-target companies, especially in those companies whose governance is currently poorer and thus the scope for future activism is greater. Consistent with institutional activism contributing to shareholder wealth, we find that, among non-targets, those firms granting fewer rights to outside shareholders experience a more positive stock price reaction. Further analysis lends additional support to the positive wealth effect of institutional activism.     

Does “Vote No” Change Corporate Governance and Firm Value? Evidence from the Shareholder Activism of the Korean National Pension Service

In this paper, we analyze the effect of shareholder activism on firm value through internal corporate governance in an emerging market. We investigate the shareholder activism by the National Pension Service (NPS) of Korea, the fourth-largest pension fund in the world in 2010. We investigate stock price reaction to a “vote no” press announcement and find that the market does not react in the short run, which reaction is inconsistent with the results from developed countries. We also find that firms experiencing “vote no” and improved internal corporate governance have higher firm valuation. Shareholder activism by the NPS is effective in increasing target firm value through improving internal corporate governance.     

Does Risk Management Add Value? A Survey of the Evidence

The fact that 92% of the world's 500 largest companies recently reported using derivatives suggests that corporate managers believe financial risk management can increase shareholder value. Surveys of finance academics indicate that they too believe that corporate risk management is, on the whole, a valueadding activity. This article provides an overview of almost 30 years of broadbased, stock‐market‐oriented academic studies that address one or more of the following questions:

• ? Are interest rate, exchange rate, and commodity price risks reflected in stock price movements?
• ? Is volatility in corporate earnings and cash flows related in a systematic way to corporate market values?
• ? Is the corporate use of derivatives associated with reduced risk and higher market values?

The answer to the first question, at least in the case of financial institutions and interest rate risk, is a definite yes; all studies with this focus find that the stock returns of financial firms are clearly sensitive to interest rate changes. The stock returns of industrial companies exhibit no pronounced interest rate exposure (at least as a group), but industrial firms with significant cross‐border revenues and costs show considerable sensitivity to exchange rates (although such sensitivity actually appears to be reduced by the size and geographical diversity of the largest multinationals). What's more, the corporate use of derivatives to hedge interest rate and currency exposures appears to be associated with lower sensitivity of stock returns to interest rate and FX changes. But does the resulting reduction in price sensitivity affect value—and, if so, how? Consistent with a widely cited theory that risk management increases value by limiting the corporate “underinvestment problem,” a number of studies show a correlation between lower cash flow volatility and higher corporate investment and market values. The article also cites a small but growing group of studies that show a strong positive association between derivatives use and stock price performance (typically measured using price‐to‐book ratios). But perhaps the nearest the research comes to establishing causality are two studies—one of companies that hedge FX exposures and another of airlines' hedging of fuel costs—that show that, in industries where hedging with derivatives is common, companies that hedge outperform companies that don't.     

Political influence in hedge fund activism: Causal evidence from U.S. gubernatorial election

This study examines the causal impacts of political influence on hedge fund activism in an exogenous setting of U.S. gubernatorial election. Local incumbent politicians have incentives to protect local inefficient firms from being targeted by activists because activism could lead to divestment and local worker layoffs. And such incentives can become weaker in election years because political competition increases the incumbent politician’s accountability to broader groups of stakeholders. Consistent with this prediction, the likelihood of local firms being targeted by activists is shown to be significantly higher during election years. Moreover, the firm’s political connections mitigate the effects of election, suggesting that politicians still maintain protection to connected firms. Further cross-sectional tests show that the effects of election are stronger (1) for firms with lower labor intensity, severer problem of free cash flow and lower efficiency, and (2) when the political competition is fiercer. Additional tests reveal that hedge fund activism enhances the target firm’s operating performance and creates larger value for investors when it faces weaker political influence. To sum up, our findings suggest that political influence affects hedge fund activism and the activists strategically adjust the timing of initiating campaigns according to the changes of such influence.     

THE SHAREHOLDER WEALTH EFFECTS OF CALPERS' FOCUS LIST

Shareholder activism can help to protect shareholder value by promoting sound corporate governance practices. As an active institutional investor, CalPERS takes its role in the corporate governance process very seriously. In addition to many other initiatives, CalPERS publishes each year a list of six to twelve public companies with poor corporate governance principles and poor financial performance—its well-known "Focus List"—in the hope that the managements of these companies will be motivated to improve their performance and increase shareholder value for CalPERS and their other equity owners.
In an attempt to assess the effectiveness of CalPERS' governance program, the authors examine the market impact of the Focus List and find that companies on the list experience positive excess stock returns of about 12% over the three months following release of the list. Moreover, this wealth effect is even greater for companies with a large, widely dispersed shareholder base, as might be expected given the relative inability of such shareholders to act collectively.