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.     

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.     

Does Board Independence Matter in Companies with a Controlling Shareholder?

A number of studies have reported value discounts for listed companies in countries that provide weak legal protection to minority shareholders. Such studies typically attribute these discounts to the ability, and the well‐documented tendency, of controlling shareholders to extract a disproportionate share of corporate resources for “private benefits.” This tendency and the resulting discounts create a dilemma for those controlling shareholders intent on maximizing value for not just themselves, but all shareholders: How can such controlling shareholders assure their minority shareholders that they will not exploit their power to expropriate resources and so eliminate the discount from their companies' shares? This article investigates the possibility that such discounts can be reduced by appointing boards of directors made up of individuals who are independent of the controlling shareholders. Based on the systematic analysis of some 800 companies representing 22 countries, the authors' recent study reports that corporate values are consistently higher when boards are more independent of controlling shareholders—and that this relationship is especially strong in those countries that afford fewer rights to minority shareholders. What is likely to cause controlling shareholders to appoint more independent directors—a change that, after all, effectively limits the controlling shareholders' power and “degrees of freedom”? The answer provided by the authors is that board independence is most likely to be pursued by companies with controlling shareholders that also have major growth opportunities that must be funded mainly with outside equity.     

The Case for Activist Directors: A Conversation with Ira M. Millstein

In this conversation held at the 2016 Millstein Governance Forum at Columbia Law School, Ira Millstein, a leading authority on corporate governance and founding chair of the Millstein Center for Global Markets and Corporate Ownership, discusses his new book, The Activist Director, with Geoff Colvin of Fortune Magazine. In explaining why he wrote the book, Millstein said that it is important for boards of directors to understand the key role they must play to secure the future of our corporations, and for shareholders to recognize, encourage, and support this role. The role of directors has changed significantly over the years. Yet corporate performance, broadly speaking, has not lived up to expectations, and Millstein attributes this in part to the failure of directors to adapt and evolve quickly and decisively enough—which in turn has helped to fuel the rise of activist investors. Much of the problem stems from the tendency of boards to view themselves as oversight organizations that review and “challenge” management at arm's length, as opposed to truly engaging with management to make better decisions. To address this problem, Millstein makes the case for “activist” directors who will partner with management, think deliberately and critically about the company's strategy, and work for the longterm interest of the corporation. And to provide financial incentives for directors to reinforce their commitment to the corporations they serve, Millstein favors an increase in compensation for directors that is tied to long‐term performance. As an early example of what became an activist board, Millstein describes his own experience with the board of General Motors in the late 1980s and early 1990s when it confronted managerial failure and ended up replacing the CEO. In the current environment of activist investors, activist boards must give serious consideration to shareholder proposals for change, without succumbing to pressure for shortsighted cutbacks in value‐adding investment and while ensuring that management is focused on long‐term growth and innovation. Directors must have the courage and commitment to carry out the course of action they deem to be in the best longterm interests of the corporation.     

WHEN SHAREHOLDERS CHOOSE NOT TO MAXIMIZE VALUE: THE UNION BANK OF SWITZERLAND'S 1994 PROXY FIGHT

This paper examines the fight over a share reunification plan that pitted Swiss financier Martin Ebner against Union Bank of Switzerland (UBS), once the largest Swiss bank and a global leader in asset management. In the U.S. corporate governance debate, large shareholders are often held up as a possible solution to corporate governance problems. But this examination of the UBS proxy fight shows why some large shareholders can themselves be a source of governance problems. The share reunification plan was designed to combine the firm's two classes of stock: registered (voting) shares and bearer (non-voting) shares. As its motive for the plan, the UBS board cited a desire both to increase liquidity and to prevent a control change. The majority of the holders of the company's registered stock—many of whom had other financial ties to the bank—ended up voting for a proposal that caused them to lose 11% of the value of their shares during the three trading days following its announcement, and eventually almost twice as much. Moreover, even the holders of the bearer stock hurt themselves by approving the reunification plan. Although the plan clearly transferred value from the registered to the bearer shares, the redistribution benefits from the plan for the bearer shareholders were not sufficient to offset their losses from the reduced probability of a control change. Although it did not succeed in accomplishing its immediate goal, the UBS proxy fight is today recognized as a watershed event in Swiss corporate governance. Until recently, Switzerland's economy has been dominated by cartels, with closely overlapping boards of directors. Hostile takeovers were essentially unheard of, and criticism of management by shareholders was highly unusual. Ebner's activities have had the effect of stimulating public debate about shareholders' rights and shareholder activism. In so doing, they have made it more acceptable for shareholders to criticize management and established shareholder value as a “politically correct” goal for Swiss corporations.     

The Evolution of Executive Pay Policy at General Motors, 1918–2008

This article documents the gradual movement of General Motors away from the partnership concept that dominated U.S. corporate pay policy in the first half of the 20th century and toward the “competitive pay” concepts that have prevailed since then. The partnership concept was achieved by paying managers bonuses in the form of GM shares, with the amounts paid out of a single company‐wide bonus pool and based on a fixed share of profit (after subtracting a charge for the cost of capital). Thanks to this “EVA‐like” bonus scheme, GM's managers effectively became “partners” with the company's shareholders, sharing the wealth in good times but also the pain in troubled times. What's more, the authors also show that, from the establishment of the program in 1918 through the 1950s, the directors went to great lengths—including several bouts of innovative (and often complex) problem‐solving—to achieve their compensation objectives while maintaining such fixed‐share bonuses. But the sharing philosophy and associated compensation practices were gradually supplanted by competitive pay practices from the 1960s onward. The authors show that by the late 1970s, GM had a board of directors with modest shareholdings, in contrast to the board in the early post‐war period, whose directors had large stakes. As a consequence, directors began acting less like stewards of capital and more like employees whose financial rewards came not from returns on GM's stock but from the fees they received for their services. This fundamental change in board compensation almost certainly contributed to the gradual abandonment of fixed‐profit sharing for GM's managers. In its place, the board implemented competitive pay policies that, while coming to dominate executive pay policy in the U.S. and abroad, have largely divorced executive pay from changes in shareholder wealth. In the case of GM, this growing separation of pay from performance was accompanied by a significant decline in corporate returns on operating capital as well as stock returns over time.     

The Role of Corporate Boards: A Roundtable Discussion of Where We're Going and Where We've Been

In this roundtable that took place at the 2016 Millstein Governance Forum at Columbia Law School, four directors of public companies discuss the changing role and responsibilities of corporate boards. In response to increasingly active investors who are looking to management and boards for more information and greater accountability, the four panelists describe the growing demands on boards for both competence and commitment to the job. Despite considerable improvements since the year 2000, and especially since the 2008 financial crisis, the clear consensus is that U.S. corporate directors must become more like owners of the corporation who “truly represent the long‐term interests of all of the shareholders.” But if activist investors appear to pose the most formidable new challenge for corporate directors—one that has the potential to lead to shortsighted managerial decision‐making—there has been another, less visible development that should be welcomed by wellrun companies that are investing in their future growth as well as meeting investors’ expectations for current performance. According to Raj Gupta, who serves on the boards of HewlettPackard, Delphi Automotive, Arconic, and the Vanguard Group,

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Mechanisms of Board Turnover: Evidence From Backdating

Regulators and governance scholars often regard the high rates of reelection among those nominated for boards of directors (and the small percentage of nominated directors who lose elections) as persuasive evidence of limited shareholder power. To correct this perceived imbalance against shareholders, some corporate governance advocates have undertaken a number of efforts to reform the director election system, most recently by proposing “proxy access” regulation to facilitate contested board elections. The authors take a close look at the board turnover within companies implicated in stock‐option backdating to assess the effectiveness of board elections. What they find is that, despite high reelection rates among nominated directors, board turnover is in fact substantial—but it takes place almost entirely before the board elections. Because of the apparently high costs associated with losing such an election, board nominees generally are not renominated for election (or reelection) unless success is quite likely. And whereas independent directors generally leave boards by not being renominated, management directors generally resign. For this reason, reelection rates tell us very little about the effectiveness of shareholder voting. But what the authors' findings do show is that directors involved in stock‐option backdating experience reductions in both the number and prestige of their future directorships. Thus, the authors' findings suggest that the board of director election process functions more effectively than shareholder advocates typically claim, that criticism of the responsiveness of the board‐election process to shareholder interests is overstated, and that reform efforts are therefore likely to be misplaced.     

University of Delaware

During the early '90s, sharehold‐ers and other observers were call‐ing for a stronger link between CEO pay and performance–more spe‐cifically, a link between CEO pay and shareholder value. One result was a dramatic increase in the use of stock options for incentive pur‐poses. But, in the face of a booming stock market during the '90s, the “excesses” in CEO pay became a controversial issue in the business press. And when a number of CEOs cashed out their option holdings just prior to the collapse of their own companies' stock prices, the topic generated even more controversy. This roundtable brings together a small group of people from academia, business, institutional investing, and the courts to discuss problems with executive pay and corporate governance. There was general agreement among the pan‐elists that the board of directors and the compensation committee have a fiduciary responsibility to share‐holders to ensure that executive compensation is appropriate, and that an active, informed, and inde‐pendent board is critical to achiev‐ing that end. Nevertheless, in many cases, shareholders have voted on stock option plans and have almost always approved them–and in this sense they too bear some responsi‐bility for incentive plans that fail to serve their own interest. As one remedy for the problem, both the New York Stock Exchange and the Conference Board have called for boards to hire the compensation consultants who design the compen‐sation plans. But this is not likely to be a complete solution since, as several panelists pointed out, the consultants do not negotiate executive pay con‐tracts. There have also been new regulations on board independence to prevent “friendly” boards from overpaying their CEOs–although, here again, some panelists expressed reservations about the loss of “institu‐tional memory” if these regulations mean giving up board members from a company's major suppliers or lead banks. The loss of such outside ex‐pertise and knowledge of the com‐pany may be even more critical now that board members with any pos‐sible relationship to the firm are pro‐hibited from sitting on various board committees. In general, there was a clear pref‐erence among the panelists for market‐based solutions–with greater reliance on investors' ef‐forts to protect their own inter‐ests–as a meaningful alternative to new regulations designed to ensure the sort of responsible be‐havior that monitoring by inves‐tors is intended to accomplish. Survey data indicate that institu‐tional investors have finally real‐ized that pay packages matter, espe‐cially when they are outrageously high and completely disconnected from financial performance. In such cases, investors are likely to “weigh in” on compensation prac‐tices, and through repeated use, the shareholder voting process could become an effective force for disciplining management. The primary role of the judiciary in all this is twofold: first, to hold corpo‐rate board members accountable for their actions; and second, to protect the integrity of the share‐holder voting process.     

Fiduciary Duties of Corporate Directors in Uncertain Times

Confronting new political uncertainties, heightened challenges, and asserted “best practices,” directors may wonder whether their fiduciary duties have changed. The authors synthesize the latest decisions of the Delaware courts on the standards of conduct for directors and the standards by which their conduct is reviewed. While directors should expect uncertainty to be a fact of corporate life, neither the fiduciary duties of directors nor the protections afforded them have changed. Disinterested and independent directors, acting in good faith to make decisions they deem in the best interests of the corporation, continue to have broad protections under the business judgment rule. This legal framework enables and encourages active directors to make hard choices when they need to do so. The paper includes flowcharts illustrating how the standards of judicial review apply to various categories of business decisions that directors may have to make. It concludes with practical suggestions for directors and General Counsels to establish business judgment rule protection for board decisions or, where applicable, withstand more stringent standards of review.     

THE LEGALITY OF THE SHAREHOLDER RIGHTS BY-LAW IN DELAWARE: PRESERVING THE MARKET FOR CORPORATE CONTROL

Just as some lawyers almost killed the takeover market with the invention of the poison pill in the 1980s, others are now about to reinvigorate it with another legal invention. The “shareholder rights bylaw,” which promises to be the next major legal battleground in the market for corporate control, aims to eliminate the current ability of target company boards of directors to block changes of control by keeping their poison pill defenses in place. The new bylaws require the poison pill (and other defensive measures) to expire automatically whenever the firm receives an allcash offer for 100% of the firm's stock at a price at least 25% above the prebid market price. The firm can keep its poison pill, but only if shareholders vote to keep it after receiving the offer. Although the legality of the share-holder rights bylaw has been challenged as an undue infringement on boards of directors' power to run companies, this article argues that their legality will be upheld for three reasons:

• ? First, shareholder rights bylaws merely reinforce the corporate manager's responsibility to manage the firm to maximize shareholder value.
• ? Second, Delaware and most other jurisdictions give shareholders the specific right to amend the bylaws of a corporation; and the shareholder rights by-law is a straightforward exercise of this explicit right granted to shareholders.
• ? Third, the adoption of shareholders rights by-law does not prevent the board of directors from advising share-holders to vote to reject a takeover bid, nor does it prevent shareholders from giving management the authority to use defensive mechanisms such as the poison pill.

As the article concludes, upholding this right of shareholders to choose whether a poison pill is used to block a takeover is critical to the vitality of the takeover market and, hence, to the preservation of the agency relationship between directors and shareholders. Upholding this right may also prove critical to Delaware's ability to maintain its predominance in the market for corporate chartering.     

Monitoring the board: should shareholders have direct proxy access?

Motivated by the current discussion to reform shareholder-nominated director elections, this paper presents a model that shows that, when shareholders have direct access to proxy, the quality of the board of directors improves. This is so because more independent directors—regarded as better monitors of managerial activities—will be elected. In the model, a manager maximizes his expected utility by solving the trade-off between reputation and consumption of private benefits. The board can be of high-type (independent, only cares about reputation) or low-type (non-independent, faces a trade-off similar to the manager's). When the board can signal its type at a relatively small cost, giving shareholders direct access to proxy is better than delegating the nomination of outside directors to managers: in the first alternative, only high-type boards will be kept, whereas in the second, low-type boards will predominate.     

Corporate board and board committee independence,firm performance,and family ownership concentration: An analysis based on Hong Kong firms

This study examines whether the relationship between corporate board and board committee independence and firm performance is moderated by the concentration of family ownership. Based on a sample of Hong Kong firms, we find no significant association between the independence of corporate boards or board committees and firm performance in family firms, whereas board independence is positively associated with firm performance in non-family firms. Additionally, our findings show that the proportion of independent directors on the corporate boards of family firms is lower than that of non-family firms, but we find no significant difference in the representation of independent directors on the key committees of corporate boards between family and non-family firms. Overall, these results suggest that the “one size fits all” approach required by the regulatory authorities for appointing independent directors on corporate boards may not necessarily enhance firm performance, especially for family firms. Thus, the requirement to appoint independent directors to the corporate boards of family firms needs to be reconsidered.     

An Empirical Examination of Sponsor Influence over the Board of Directors

Investment funds have a unique organization structure in which a fund's board of directors frequently contracts the management of the fund with the fund's sponsor but has a fiduciary duty to act in the interest of the fund's shareholders with regard to decisions such as the shareholder fees charged by the sponsor to manage the fund. For a large sample of closed–end funds, my findings indicate that sponsors exert considerable influence over the board of directors through a variety of mechanisms such as the installation of a sponsor–affiliated board leader, director compensation from service on multiple boards for the sponsor, and control of the director selection process. Furthermore, my examination of closed–end premiums indicates that the market perceives that the absence of sponsor involvement in the director selection process is a credible signal that new directors are not "hand–picked" by the sponsor and that this attribute is positively priced by the market.     

Women in power with power: The influence of meaningful board representation on default risk

This paper examines the relationship between the presence of female board members and firms' corporate default risk. We find an inverted “U-shaped” relationship for a sample of 917 firms in 19 emerging markets for the period 2005–2019. We also show that, consistent with critical mass theory, boards need to have three or more female directors to significantly reduce default risk. Furthermore, having female directors with an independent role on the board in countries with less familial dominance, or having female directors with a leadership position, significantly reduces default risk. Finally, we find a positive effect of the interaction between a country's gender inequality and board gender diversity on default risk.     

A CEO's Playbook for Creating Long‐Term Value: Ten Essential Resource Allocation Practices

A former CEO of a large and successful public company teams up with a former chief investment strategist and a well‐known academic to suggest ten practices for public companies intent on creating long‐run value:

1. Establish long‐term value creation as the company's governing objective.
2. Ensure that annual plans are consistent with the company's long‐term strategic plan.
3. Understand the expectations embedded in today's stock price.
4. Conduct a “premortem”—and so gain a solid understanding of what can go wrong—before making any large capital allocation decisions.
5. Incorporate the “outside view” in the strategic planning process.
6. Reallocate capital to its highest‐valued use, selling corporate assets that are worth more to or in the hands of others.
7. Prioritize strategies rather than individual projects.
8. Avoid public commitments, such as earnings guidance, that can compromise a company's capital allocation flexibility.
9. Apply best private equity practices to public companies.
10. CEOs should work closely with their boards of directors to set clear expectations for creating long‐term value.

These practices, as the authors note in closing, “are meant to provide a starting point for public companies in carrying out their mission of creating long‐run value—and in a way that earns the respect, if not the admiration and support, of all its important stakeholders.”     

Multiple board appointments and firm performance in emerging economies: Evidence from India

This paper extends the literature on multiple directorships, busy directors and firm performance by providing evidence from an emerging economy, India, where the incidence of multiple directorships is high. Using a sample of 500 large firms and a measure of “busyness” that is more general in its applicability, we find multiple directorships by independent directors to correlate positively with firm value. Independent directors with multiple positions are also found to attend more board meetings and are more likely to be present in a company's annual general meeting. These findings are largely in contrast to the existing evidence from the US studies and lend support to the “quality hypothesis” that busy outside directors are likely to be better directors, and the “resource dependency hypothesis” that multiple directors may be better networked thereby helping the company to establish more linkages with its external environment. Multiple directorships by inside directors are, however, negatively related to firm performance. Our results suggest that the institutional specificities of emerging economies like India could work in favor of sustaining high levels of multiple directorships for independent directors without necessarily impairing the quality of corporate governance.     

ESG Investing in Graham & Doddsville

The author describes how and why the world's best “business value investors” have long incorporated environmental, social, and governance (ESG) considerations into their investment decision‐making. As the main source of value in companies has increasingly shifted from tangible to intangible assets, many followers of Graham & Dodd have delivered exceptional investment results by taking an “earnings‐power” approach to identifying high‐quality businesses—businesses with enduring competitive advantages that are sustained through significant ongoing investment in their core capabilities and, increasingly, their important non‐investor “stakeholders.” While the ESG framework may be relatively new, it can be thought of as providing a lens through which to view the age‐old issue of “quality.” Graham & Dodd's 1934 classic guide to investing, Security Analysis, and Phil Fisher's 1958 bestseller, Common Stocks and Uncommon Profits, both identify a number of areas of analysis that would today be characterized as ESG. Regardless of whether they use the labels “E,” “S,” and “G,” investors who make judgments about earnings power and sustainable competitive advantage are routinely incorporating ESG considerations into their decision‐making. The challenge of assessing a company's sustainable competitive advantage requires analysis based on concepts such as customer franchise value, as well as intangibles like brands and intellectual property. For corporate managers communicating ESG priorities, and for investors analyzing ESG issues, the key is to focus on their relevance to the business. In this sense, corporate reporting on sustainability issues should be viewed as analogous to and an integral part of financial reporting, with a management focus on materiality and relevance (while avoiding a “promotional” approach) that is critical to credibility.     

Controlling shareholders,board structure,and firm performance: Evidence from India

We examine the prevalence and performance impact of controlling shareholders and study corporate board structures and ownership structures in 1796 Indian firms. Families (founders) are present on the boards in 63.2 (65.5) percent of the sample firms. On average, founders own over 50% of outstanding shares. In contrast to the findings of Anderson and Reeb (2003) in the U.S. context, we find that controlling shareholder board membership in Indian firms has a statistically significant negative association with Tobin's Q. Higher proportion of independent directors, higher institutional ownership or larger firm size does not appear to mitigate this relationship. Overall, board membership of controlling shareholders appears to be costly for minority shareholders.     

The Icahn Manifesto

The title of this opening chapter in the author's new book on activist investors refers to Carl Icahn's solution to the “agency” problem faced by the shareholders of public companies in motivating corporate managers and boards to maximize firm value. During the 1960s and '70s, U.S. public companies tended to be run in ways designed to increase their size while minimizing their financial risk, with heavy emphasis on corporate diversification. Icahn successfully challenged corporate managers throughout the 1970s and 1980s by buying blocks of shares in companies he believed were undervalued and then demanding board seats and other changes in corporate governance and management. This article describes the evolution of Icahn as an investor. Starting by investing in undervalued, closed‐end mutual funds and then shorting shares of the stocks in the underlying portfolio, Icahn was able to get fund managers either to liquidate their funds (giving Icahn an arbitrage profit on his long mutual fund/short underlying stocks position) or take other steps to eliminate the “value gap.” After closing the value gaps within the limited universe of closed‐end mutual funds, Icahn turned his attention to the shares of companies trading for less than his perception of the value of their assets. As the author goes on to point out, the strategy that Icahn used with such powerful effect can be traced to the influence of the great value investor Benjamin Graham. Graham was a forceful advocate for the use of shareholder activism to bring about change in underperforming—and in that sense undervalued—companies. The first edition of Graham's investing classic, Security Analysis, published in 1934, devoted an entire chapter to the relationship between shareholders and management, which Graham described as “one of the strangest phenomena of American finance.”