Eclipse of the Public Corporation or Eclipse of the Public Markets?

The authors look back at Michael Jensen's 1989 article “The Eclipse of the Public Corporation.” They find some of his predictions have been borne out but other important ones, not. Jensen concluded that the publicly held corporation was in decline and had outlived its usefulness in many sectors. He argued that agency costs made public corporations an inefficient form of organization and that new private organizational forms promoted by private equity firms would likely replace the public firm. The number of public firms in the U.S. has declined significantly but there are still many hugely profitable and successful public companies. U.S. public markets are still well‐suited for firms with mostly tangible assets. So, what we are really witnessing is an eclipse not of public corporations, but of the public markets as the place where young firms with mostly intangible capital seek their funding. This is especially true when the usefulness of the intangible assets has yet to be proven. Sometimes the market is extremely optimistic about some intangible assets, but otherwise firms with unproven intangible assets may be better off funding themselves privately. This evolution has a downside: investors limited to public markets are cut off from investing in high intangible‐asset firms. Additionally, as fewer firms remain publicly listed, fewer firms will be transparent to society.     

LARGE BANK STOCKHOLDERS IN GERMANY: SAVIORS OR SUBSTITUTES?

This article challenges Mark Roe's suggestion that the prevalence of the widely held public corporation in the U.S. may not have been inevitable because U.S. laws prevented financial institutions from playing the monitoring role assumed by large German banks. The differences between Germany and the U.S. in the importance of trading markets and the role of banks as monitors can be explained in large part by actions of German banks that blocked the development of German capital markets and provided big banks with informational advantages over other traders.
Markets are likely to be more effective monitors than large banks because of the banks' conflicts of interest as creditors as well as underwriters and market-makers for German firms. Moreover, there is more diversity in the ownership structure of U.S. corporations than the current governance debate would suggest. In the U.S. there are many publicly owned companies that are either closely held or have reverted to private ownership through LBOs. This in turn suggests that U.S. capital markets have devised means for bringing about concentrated stock ownership in those cases where large stockholder monitoring is likely to be more efficient.
Thus, to the question what is likely to happen to U.S. corporate ownership structure if remaining legal constraints on stock ownership by U.S. banks are relaxed, the answer this article offers is "not much." Indeed, if one considers increasing U.S. institutional ownership together with recent SEC attempts to liberalize shareholder communications, there appears to be a striking trend toward a new concentration of voting power–one that may ultimately rival that of the German banks.     

What Happens During the Private Period?: Evidence from Public‐to‐Private Reverse LBOs

This study provides new evidence on the restructuring activities undertaken by public‐to‐private reverse leveraged buyouts (RLBOs) while owned by private equity firms. The authors' comprehensive sample of public‐to‐private LBOs that return to public ownership through IPOs enables them to observe changes in profitability, valuation, financial structure, operating structure, and cost structure from the time the firms go private through (and after) their emergence through (re‐) IPOs. With their exclusive focus on reverse LBOs involving public‐to‐private deals, the authors reach findings that contradict previous conclusions about RLBOs. At the time of the LBO, the target firms in reverse LBOs are more levered than their peers, pay higher dividends, and are more profitable than their peers. At the same time, however, they appear to have lower market valuations before the buyouts. During the private period, the target firms of reverse LBOs achieve significant increases in employee productivity, asset restructuring, and improved gross margins, while operating with substantially higher levels of debt financing, lower levels of cash and working capital, and greater concentration of equity ownership. After the companies return to public ownership through IPOs, such companies continue to operate with higher leverage and ownership concentration than their publicly traded peers while producing further increases in profitability, resulting in substantial increases in both enterprise and equity valuation. The authors' analysis also shows that higher debt levels from the buyout play an important role in increased enterprise values. The evidence suggests that possible undervaluation as well as expected efficiency gains from restructuring actions are the primary motives for such reverse LBOs.     

BANK OF AMERICA ROUNDTABLE ON THE LINK BETWEEN CAPITAL STRUCTURE AND SHAREHOLDER VALUE

A number of popular business magazines have recently run cover stories describing the “return of leverage.” Although full of interesting details about individual leveraged deals and the investment bankers who put them together, they are largely silent on several issues of economic importance: Why is this happening now? What are the most important benefits as well as costs of debt financing? Is there such a thing as a value-maximizing, or “optimal,” capital structure for public corporations? No financial economist has thought and written as much about corporate capital structure and its relationship to shareholder value and corporate governance as Harvard professor Michael Jensen. The first economist to see the value-adding potential of LBOs in the 1980s, he was also the first to identify the source of the problems with the late-'80s deals. In this roundtable discussion, Professor Jensen explores the “real” effects of corporate financial policies on managerial decision-making and shareholder value with a distinguished group of corporate executives and financial advisors.     

The State of the Public Corporation: Not So Much an Eclipse as an Evolution

By some measures, the U.S. public corporation appears to be in the midst of a significant decline, as Michael Jensen predicted 25 years ago in a Harvard Business Review article called “The Eclipse of the Public Corporation.” Based on an analysis of ten industries during the 48‐year period from 1966 through the end of 2013, the author reports a 60% drop in the number of publicly traded U.S. companies, as measured from each of the industry peaks to the end of 2013. Mergers and acquisitions, together with the private‐equity transactions hailed by Jensen in his 1989 HBR article, have contributed significantly to this reduction in numbers. But so has the remarkable growth of “uncorporate” (or pass‐through) structures such as Master Limited Partnerships (MLPs) and Real Estate Investment Trusts (REITs), both of which address governance as well as tax problems faced by public C‐corporations. But along with this drop in numbers, the author's analysis of the performance of U.S. public companies—as measured both by operating returns on equity and Tobin's Q ratios—also shows a growing separation of the “best” from the “rest” over time. Intense global product market competition, the growing benefits (and urgency) of achieving efficient scope and scale, high U.S. corporate income tax rates, and a vigorous market for corporate control are all significantly “thinning the herd” of public corporations. The “winners” have been emerging as larger, more efficient, and more influential enterprises than ever before, as the rise of massive U.S. multinationals (and, in countries outside the U.S., state‐owned enterprises) over the past two decades has increasingly blurred the line between private business and government. Viewed in this light, the overall trends, both in the U.S. and abroad, suggest an evolution rather than an eclipse of the public corporation. Such trends also suggest that over the next 25 years, the success of the public corporation will increasingly depend on issues such as its ability to resolve conflicts between controlling shareholders (including sovereign governments) and minority shareholders, regulatory (in particular, antitrust) policy, and the role (and investment horizons) of activist shareholders.     

Active Investors, LBOs, and the Privatization of Bankruptcy

In this testimony to the House Ways and Means Committee on February 1, 1989 (when LBOs and other highly leveraged transactions were under fierce attack by politicians and the media), the author identified “LBO associations” such as KKR and Forstmann Little as a valuable innovation in organizational form—a new model of management and governance that was competing directly with the headquarters of large public corporations, especially conglomerates. In the author's words, LBOs “substitute incentives provided by compensation and ownership plans for the direct monitoring and often centralized decision-making in the typical corporate bureaucracy.” In illustrating his point, the author noted that whereas the CEOs of U.S. companies during the '70s and '80s saw their personal wealth go up by only about $3 for every $1,000 increase in firm value, the average CEO in an LBO experienced a change of $64 per $1,000—and for the partners of the LBO firm, the closest equivalent to a conglomerate CEO, the change was about $200 per $1,000. Based on the performance of the first wave of LBOs to return to public ownership, such dramatic concentrations of equity ownership appear to have produced large gains in operating efficiency. (And since the author's testimony, these findings have been confirmed by subsequent studies of later periods and in other countries.) The heavy debt loads in these transactions, besides making possible the concentration of equity ownership, also perform an important control function, intensifying the search for efficiencies and discouraging reinvestment in low-return projects. For those LBOs that have trouble servicing their debt loads, the author argues that the costs of insolvency should turn out to be significantly lower than for traditional public companies because LBOs provide strong incentives to keep the process of reorganizing troubled companies out of the bankruptcy court (a prediction that, although proving wrong in the early‘90s, has turned out to be true of the most recent wave of private equity deals).     

A Fireside Chat with Raj Gupta: What It Takes to Create Long‐Term Value

The chairman of two public companies (and former chair and CEO of Rohm and Haas) draws on his experience as a director of five private and 15 public companies in discussing the challenges and opportunities facing today's corporate boards. Perhaps the most formidable challenge is the pace of technological change, which is making business models ‘in all industries and countries’ obsolete and forcing companies to adapt much more quickly than in the past. Along with the risk of obsolescence is the increase in ‘reputational risk’ associated with an ‘information age’ in which companies are forced to monitor the nearly continuous flow of fact, hearsay, and outright fabrication. The author recommends that public company boards adopt a new ‘partnership’ model. Besides ensuring an ‘ethical tone at the top,’ corporate directors should aim to become partners with the senior management team by playing more active roles in strategic planning, risk management, and the design of performance evaluation and incentive pay systems. In the most striking departure from current practice, the author urges directors to seize the opportunity created by the ‘reconcentration’ of ownership of U.S. public companies by actively engaging large institutional investors in a strategic dialogue about the companies' strengths and vulnerabilities. In so doing, proactive directors can help their management teams preempt shareholder activists and create long‐run value by creating a more effective two‐way channel of communication, one with the potential to give management more confidence when undertaking large strategic investments with longer‐run payoffs.     

PERFORMANCE LEVERAGE, AND OWNERSHIP STRUCTURE IN REVERSE LBOs

Previous studies have provided convincing evidence of improvements in the performance of companies that undergo leveraged buyouts (LBOs). This article presents evidence from the authors' recent study of the performance of 90 "reverse LBOs–LBO firms that go public again in an IPO—after they return to public ownership. The aim of the study was to track the performance of reverse LBOs and to reveal any association between operating performance and changes in leverage and equity ownership.
Among the principal findings of the study were the following: Despite a substantial decline in leverage ratios and equity ownership by insiders at the time of the IPOs, equity ownership of reverse LBOs remained more concentrated and leverage higher than that of public companies in the same industries.
The operating performance of reverse LBOs was significantly better than that of the median firm in their industries in the year prior to and in the year of the IPO. Although there is some evidence of a deterioration in the performance of the reverse-LBO firms, they continue to outperform their industry competitors for at least four full fiscal years after the IPO.
Greater reductions in the percentage equity owned by managers and other insiders at the time of the reverse LBO are associated with larger declines in operating performance.
The stock price performance of reverse LBOs after going public appears more "rational" than that of other IPOs—that is, there is less initial under pricing and no sign of the negative, longer-term abnormal returns reported by recent studies of IPOs.     

10 ways to create shareholder value

Executives have developed tunnel vision in their pursuit of shareholder value, focusing on short-term performance at the expense of investing in long-term growth. It's time to broaden that perspective and begin shaping business strategies in light of the competitive landscape, not the shareholder list. In this article, Alfred Rappaport offers ten basic principles to help executives create lasting shareholder value. For starters, companies should not manage earnings or provide earnings guidance; those that fail to embrace this first principle of shareholder value will almost certainly be unable to follow the rest. Additionally, leaders should make strategic decisions and acquisitions and carry assets that maximize expected value, even if near-term earnings are negatively affected as a result. During times when there are no credible value-creating opportunities to invest in the business, companies should avoid using excess cash to make investments that look good on the surface but might end up destroying value, such as ill-advised, overpriced acquisitions. It would be better to return the cash to shareholders in the form of dividends and buybacks. Rappaport also offers guidelines for establishing effective pay incentives at every level of management; emphasizes that senior executives need to lay their wealth on the line just as shareholders do; and urges companies to embrace full disclosure, an antidote to short-term earnings obsession that serves to lessen investor uncertainty, which could reduce the cost of capital and increase the share price. The author notes that a few types of companies--high-tech start-ups, for example, and severely capital-constrained organizations--cannot afford to ignore market pressures for short-term performance. Most companies with a sound, well-executed business model, however, could better realize their potential for creating shareholder value by adopting the ten principles.     

How Corporate Diversity and Size Influence Spinoffs and Other Breakups

In recent months, the list of large diversified companies that have decided they would be worth more as several smaller, focused companies has grown sharply. In many of these cases, it has been outside pressure from activist investors that has motivated these actions by management—and with some pretty favorable results. But what is driving these strategic actions and what is most important in determining whether breakups create value? To answer this fundamental questions, it is critical to decide whether large, diversified companies have a value recognition problem or a value creation problem. In this article, the authors present and try to integrate the findings of two separate but related research studies on business diversity and size with the aim of identifying their implications for corporate strategy and helping company executives create more value for their investors. The specific reasons for underperformance by large diverse companies vary greatly, but there are a number of potential problems discussed in this article, including organizational “distance,” capital allocation, human capital allocation, cross subsidies, and ineffective governance. Instead of waiting for activist investors to demand a breakup, executives of large diverse companies should be proactive in addressing the potential weaknesses of their organizations. Private equity firms understand how to make diversification work and many of today's executives could learn some valuable lessons from these firms. Large diverse businesses should embrace “Internal Capitalism,” a corporate culture and set of practices that emphasizes the importance of strategic decision‐making that is linked through continuous performance assessment to the corporate goals of boosting efficiency and sustainable growth.     

Roundtable on Corporate Disclosure

In an article published in this journal two years ago titled "Just Say No to Wall Street," Harvard's Michael Jensen and The Monitor Group's CEO Joseph Fuller urged companies to put an end to what they called the "earnings guidance game." Instead of earnings forecasts, Jensen and Fuller recommended that companies provide investors with information about their strategic goals and value drivers, and about the risks associated with carrying out those goals and management's plans to manage those risks.
In this roundtable, a group of corporate executives, equity analysts, and academics explore the possibility that companies can increase their values by resisting the temptation to "manage" earnings, committing to expanded disclosure, and engaging investors in a more strategic dialogue. By establishing such a dialogue, companies may be able to break out of the current "bad equilibrium" in which markets distrust managers and managers distrust markets.     

The Reverse LBO Decision and Firm Performance: Theory and Evidence

We investigate the transition from private to public ownership of companies that had previously been subject to leveraged buyouts (LBOs). We show that the information asymmetry problem firms face when they go to public markets for equity, as well as behavioral and debt overhang effects, will produce a pattern in which superior performance before an offering should be expected, with disappointing performance subsequently. We find empirical evidence of this phenomenon by studying 62 reverse LBOs that went public between 1983 and 1987. The market appears to anticipate this pattern.     

The virtue matrix. Calculating the return on corporate responsibility

Executives who want to make their organizations better corporate citizens face many obstacles: If they undertake costly initiatives that their rivals don't embrace, they risk eroding their company's competitive position. If they invite government oversight, they may be hampered by costly regulations. And if they adopt wage scales and working conditions that prevail in the wealthiest democracies, they may drive jobs to countries with less stringent standards. Such dilemmas call for clear, hard thinking. To aid in that undertaking, Roger Martin introduces the virtue matrix--a tool to help executives analyze corporate responsibility by viewing it as a product or service. The author uses real-life examples to explore the forms and degrees of corporate virtue. He cites Aaron Feuerstein, CEO of Malden Mills, a textile company whose plant was destroyed by fire in 1995. Rather than move operations to a lower-wage region, Feuerstein continued to pay his idled workforce and rebuilt the plant. Unlike the typical CEO of a publicly held corporation, who is accountable to hundreds or thousands of shareholders, Feuerstein was free to act so generously because he had only a few family members to answer to. But as Martin points out, corporations don't operate in a universe composed solely of shareholders. They can be subject to pressure from citizens, employees, and political authorities. The virtue matrix provides a way to assess these forces and how they interact. Martin uses it to examine why the public clamor for more responsible corporate conduct never seems to abate. Another issue the author confronts is anxiety over globalization. Finally, Martin applies the virtue matrix to two crucial questions: What are the barriers to increasing the supply of corporate virtue? And what can companies do to remove those barriers?     

SPACs: An Alternative Wav to Access the Public Markets

Lost amidst the news of the real estate crisis, soaring oil prices, undercapitalized banks, and falling stock prices is a trend that has been quietly building in the U.S. capital markets. Instead of doing traditional IPOs, companies are increasingly going public by merging with Special Purpose Acquisition Companies, commonly known as SPACs. SPACs are publicly traded pools of capital formed for the sole purpose of merging with an operating company. Since the beginning of 2007, they have raised nearly $16 billion in U.S. markets, capital that is now being channeled into billion dollar‐plus mergers. Hedge funds, which provide the bulk of this capital, invest in SPACs as a way to create a customized portfolio of securities that provide private equity‐like exposure but also liquidity and the right to vote on the proposed acquisition. Frequently formed by well‐known sponsors such as Thomas Hicks and Nelson Peltz, SPACs now feature prominently in corporate discussions of strategic options. Companies that consider merging with SPACs often face complicated circumstances, require a major recapitalization, operate in a niche sector that lacks an institutional following, or have no obvious strategic buyers. The author describes how SPACs, by means of privately‐negotiated, tailored transactions, provide companies with access to the public markets in ways that a traditional IPO often cannot. The article includes case studies of three companies in unusual circumstances that, instead of doing IPOs, established access to public markets by merging with a SPAC.     

Session I: Corporate Purpose and Governance

In this first of five sessions of a recent Columbia Law School symposium devoted to discussion of his new book, Prosperity—and The Purpose of the Corporation, Oxford University's Colin Mayer begins by calling for a “radical reinterpretation” of the corporate mission. For all but the last 50 or so of its 2,000‐year history, the corporation has combined commercial activities with a public purpose. But since Milton Friedman's famous pronouncement in 1970 that the social goal of the corporation is to maximize its own profits, the gap between the social and private interests served by corporations appears to have grown ever wider, helping fuel the global outbreaks of populist protest and indictments of capitalism that fill today's media. In Mayer's reinterpretation, the boards of all companies will produce and publish statements of corporate purpose that envision some greater social good than maximizing shareholder value. To that end, he urges companies to make continuous investments of their financial capital and other resources in developing other forms of corporate capital—human, social, and natural—and to account for such investments in the same way they now account for their investments in physical capital. Although the author appears to prefer that such changes be mandatory, enacted through new legislation and enforced by regulators and the courts, his main efforts are directed at persuading the largest institutional owners of corporations—many of whom are already favorably predisposed to ESG—to support these corporate initiatives. Marty Lipton, after expressing enthusiasm about Mayer's proposals, suggests that mandating such changes is likely neither feasible nor desirable, but that attempts—like his own New Paradigm—to gain the acceptance and support of large shareholders is the most promising strategy. Ron Gilson, on the other hand, after voicing Lipton's skepticism about the enforceability of such statements of purpose, issues a number of warnings. One is about the political risks associated with ever more concentrated ownership of public companies in a world where populist distrust of all concentrations of wealth and power is clearly on the rise. But most troubling for the company themselves is the confusion such proposals could create for corporate boards whose responsibility is to limit two temptations facing corporate managements: short‐termism, or underinvestment in the corporate future to boost near‐term earnings (and presumably stock prices); and what Gilson calls hyperopia, or overinvestment designed to preserve growth (and management's jobs) at all costs.     

University of Rochester Roundtable on Corporate M&A and Shareholder Value

Robert Bruner's new book, Deals from Hell , serves as the point of departure for a wide-ranging discussion of the effect of mergers and acquisitions on shareholder value and the general economy. Despite the book's title, Bruner's message is at bottom a positive one: Corporate M&A increases efficiency and value, on average, and enriches the shareholders of not only the selling firms, but the buyers as well.
But if the average transaction is value-increasing for acquirers, many acquisitions of publicly traded companies by other public companies are value-destroying for the buyers, in large part because of "control rights" that U.S. laws and regulations have effectively conferred on target company managements. One proposed solution is a return to the legal and regulatory climate of the 1980s, a time when companies that reduced their own values by making bad acquisitions thereby raised the odds that they would become the next takeover targets.     

Fulfilling its promise? Strategic public procurement and the impact of equality considerations on employers’ behaviour in Scotland

ABSTRACT

Public administration is an important force influencing equality in today’s society. Like budgetary choices, public procurement has increasingly gained attention as a means to promote equality. Yet, there are important gaps in knowledge, especially regarding how equality requirements in public procurement affect company behaviour. This paper sheds first light on the impact strategic public procurement has on employers’ behaviour. Based on empirical research, this paper highlights that companies perceive a limited prevalence of equality stipulations in Scottish public procurement practices and raises doubts about the impact of public procurement practices to create a successful business case for equality.     

An Exploratory Study of Profit Reporting Differences of Publicly Owned Professional Service Firms and Partnerships

There has been a trend for large professional service firms (PSFs) to move away from the traditional partnership structure to other ownership forms such as publicly owned companies. Research on the relative performance of these ownership forms has been constrained by the lack of availability of financial information for partnerships, and proxy revenue‐based measures used have resulted in conflicting findings. This paper seeks to guide future research by exploring accounting reporting differences between partnerships and publicly owned PSF companies in order to identify adjustments required for comparison and implications for performance measures used. This paper reviews the literature and examines the annual reports of two Australian publicly owned accounting companies and one large accounting partnership; pre‐initial public offering pro forma reporting in the prospectus of one of the companies identifies significant profitability reporting differences across ownership forms. The findings also suggest that the lower revenue per professional and per person for publicly owned PSFs found in prior studies may be offset by significantly lower salary costs. The paper concludes that significant value can be achieved by further analysis of profitability across ownership forms and suggests data requirements to inform the development of further case studies and large‐scale surveys of financial performance.     

Public vs. Private Equity*

Many corporate executives view private equity as a last resort, as expensive capital that should be tapped only by companies that don't have access to presumably cheaper public equity. The reality of private equity, however, is more complex, and potentially quite rewarding, for both shareholders and management. This paper surveys some of the academic work on the costs and benefits of public vs. private equity, contrasting the private equity investment process with its public counterpart and exploring how such a process may add value. The importance of public equity, particularly for very large companies and growth companies with large capital requirements, is indisputable. But as investment bankers and other practitioners have noted, under certain circumstances the public markets effectively become “closed” to some public companies. Moreover, the cost of equity raised in public markets involves much more than the direct costs of underwriters, attorneys, and accountants. Some indication of the indirect costs is provided by the market's typically negative reaction to announcements of seasoned equity offerings. Although the negative reaction averages about 3%, in some cases stock prices drop by as much as 10%, thereby diluting the value of existing stockholders. Most academics attribute this reaction to the informational disadvantage of public stockholders. Private equity is designed in large part to overcome this information problem by replacing the monitoring performed by the typical public company board with the oversight of better informed and more highly motivated owners. A growing body of academic research suggests that private equity investors add value to the companies they invest in, and that the best investors are consistently effective in so doing. What's more, even public companies that tap private equity seem to benefit. As the author found in his own research on PIPES (Private Investment in Public Equity Securities) transactions, even though such securities are issued to private equity investors at a discount to the prevailing market price, the average market response to the announcement of such transactions is a positive 10%. In short, the participation of private equity investors is perceived to create value, and some of this value is shared with the rest of the market.