Saturday, December 6, 2014

Fictional shareholders

Particularly in the context of benefit corporations, a lot of us have used this space to talk about whether corporate directors are in fact required to adhere to a shareholder-wealth-maximization norm.  The flipside of this inquiry is to ask what shareholder wealth maximization means from the shareholders' viewpoint.

In his article Fictional Shareholders: For Whom are Corporate Managers Trustees, Revisited, Daniel Greenwood uses the term “fictional shareholders” to describe the mythical share-value-maximizing shareholder to whom corporate directors are theoretically beholden, who does not possess any interests, values, or priorities beyond shareholder wealth maximization.

One of the most striking examples of the “fictional shareholder” notion can be found in the D.C. Circuit’s opinion in Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011), where the court rejected the SEC’s proxy access rule in part on the ground that some shareholders might put forth director-nominees for the “wrong” reasons – i.e., reasons specific to their idiosyncratic interests outside of their status as shareholders, unrelated to corporate wealth maximization.  See generally Grant M. Hayden and Matthew T. Bodie, The Bizarre Law and Economics of Business Roundtable v. SEC.

Of course, in real life, shareholders do in fact have interests other than increasing prices of the shares they own in an individual company.  They may care about shares they own in other companies, or care about things unrelated to shares entirely – like the environment in which they live, the wages they are paid for their jobs, the prices they pay for goods as consumers, and so forth.  These varied considerations may "maximize" their wealth overall, even if they do not maximize the value of shares in any specific company.

Which is why I found this article so interesting.  The AFL-CIO is objecting to Wall Street’s practice of paying out deferred compensation to executives who depart for government.  Deferred compensation packages are intended to encourage employees to remain with the company; the compensation is forfeited if the employee leaves for a competitor.  So why should it be accelerated for government?  (Copies of the letters sent by AFL-CIO can be found here.)

Andrew Ross-Sorkin, adorably, believes the practice encourages “public service” even if it doesn’t benefit shareholders.

I believe the practice - at least in the eyes of the firms that employ it - likely directly maximizes shareholder wealth in particular companies by maintaining close ties between Wall Street and regulators.  Not in crude sense that government regulators “go easy” on Wall Street firms because they wish to curry favor or repay a debt, but in the more subtle sense that firms believe that if they maintain lines of communication and friendly relationships between themselves and their regulators, they can persuade regulators to adopt Wall Street priorities and sensibilities.  And, of course, when Wall Street firms have close ties to regulators, they can use friendship and informal networking to obtain information and cooperation –  the case of Rohit Bansal  is simply an extreme example.  (Probably Mary Jo White is more typical – after she left public service to work at Debevoise, she was accused of using her government connections to assist John Mack in avoiding SEC penalties for insider trading.)

So AFL-CIO’s objection, to me, does not come from its status as an adviser to investment funds investor seeking the highest possible value for their shares.  It comes from its status as a union federation, with members who have interests outside of their status as shareholders. 

AFL-CIO tacitly acknowledges as much.  In its press release describing its objections, it writes, “Unless the position of these companies is that this is just a backdoor way to pay off a newly minted government official to act in Wall Street’s private interests rather than the public interest, it is very difficult to see how these policies promote long-term shareholder value.”

Which is another way of saying that if these employees do act to further Wall Street’s interests, then they do promote shareholder value.  

So that leads to the question – is it legitimate, for the AFL-CIO to object to these practices, even if they increase the value of the pension fund's holdings?  Do corporate managers have any obligation to consider such objections, if they are not motivated by a desire to maximize wealth at a particular firm?

And what if the AFL-CIO did decide to call the banks' bluff by filing a lawsuit claiming that compensation incentives to decamp for government service do not benefit shareholders?  Would the directors have to admit that they hope for benefits like regulatory forbearance, or could the directors claim that, a la Andrew Ross-Sorkin, such pay practices provide a public benefit and represent a mark of good corporate citizenship?

https://lawprofessors.typepad.com/business_law/2014/12/fictional-shareholders.html

Ann Lipton | Permalink

Comments

Interesting question, Ann. I think the business judgment rule would be sufficient to provide cover, if the directors stay silent as to reason or claim some shareholder benefit. If the directors expressly claim that there was no thought of shareholder benefit in that decision, then I think it would be a more interesting case and one that carries at least some risk for the directors.

Posted by: Haskell Murray | Dec 6, 2014 9:59:45 AM

Haskell - yes, I think that's right. I just find it an intriguing problem because of the very real conflicts regarding who gets to decide what shareholder value means - and where it seems that the very purpose of the shareholder objection is to force an admission that these practices are, in fact, intended to benefit shareholders.

Posted by: Ann Lipton | Dec 6, 2014 1:36:24 PM

Actually the AFL-CIO wrote the companies in its capacity as an "institutional investor" not an advisor to investors. The federation has its own pension plan and often speaks up on issues like this in that capacity. It seems reasonable to suggest that they view this argument as consistent with their fiduciary obligation to their plan beneficiaries.

And since it has been standard practice to view government regulation as more effective when it is genuinely independent since at least the Progressive Era of the early 20th century, why jump to the conclusion that the AFL's behavior is somehow illegitimate? Regulatory "capture" has been a growing public concern and has been heightened by the recent stories of the problems associated with the banking sector.

[Full disclosure: I have advised the AFL-CIO and other union pension plans and unions on issues in this area.]

Posted by: Steve Diamond | Dec 6, 2014 7:23:07 PM

Hi Steve - sorry for the mistake about their role, although I don't think it makes a difference to my point - namely, whether shareholders can/should object to these policies.

But you misunderstand what I'm saying - I'm not saying regulatory capture isn't a problem, or that AFL-CIO doesn't have an interest in preventing it. I'm saying that if you view them purely as shareholders - with no interests other than the maximization of the share price in a single company in which they invest - they should be applauding regulatory capture. Yet of course they don't - because the idea of a shareholder who holds no interests other than as a shareholder is a legal fiction.

Posted by: Ann Lipton | Dec 6, 2014 7:27:58 PM

Ok, so we have to conclude that Lazard is giving away $20 mn to Weiss that it would not give away if went to a competitor because he might go easy on Lazard? And therefore it is better for Lazard shareholders? (Let's leave aside that Lazard is not publicly traded.)

Well, it seems to me a highly speculative and risky guess by Lazard that Weiss will care one whit about them now that he has $20 million of their own money. The better route would be to say that if you come back we will reinstate your options and credit your years of government service. But I agree with Haskell that they could likely hide behind the business judgment rule.

More broadly, however, I think it is significant that the AFL wrote to a range of large banks. I think it is reasonable to think that overall even if one thinks stuffing the pockets of a departing banker going into government might be a good business decision for one bank it might have a negative impact if it is a widely accepted practice - at some point regulatory capture undermines the culture of the entire system. (See any number of articles on the Federal Reserve's behavior towards Goldman etc.) Since the AFL likely has diversified holdings it has a broader concern as would very likely many investors. Since exit is not possible voice becomes necessary. Indeed, the Times article on this indicates the letter is creating a stir inside the banks and that suggests management is sensitive to the issue.

[Addendum to my earlier disclosure: I did not advise the AFL on this particular initiative.]

Posted by: Steve Diamond | Dec 6, 2014 7:58:35 PM

Errata: Lazard is publicly traded. Apologies.

Posted by: Steve Diamond | Dec 6, 2014 8:21:01 PM

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