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Proxy Season Paradoxes

June 19th, 2014 | By

As corporate fiduciaries, directors represent shareholders. But what should boards do when their sense of corporate good conflicts with resolutions advanced by specific owners? It is easy to say that boards need to do more to oversee risk, or to improve strategy, but without real-world testing, these statements become platitudes. Let’s take a look behind the headlines surrounding six recent proxy season conflicts—starting with five Fortune 500 companies (Bank of America, Darden, Staples, Target, and Walmart) and closing with a mid-market real estate investment trust (REIT) family (Ashford). In each case, boards have had to draw the line when confronted by special interests—while still respecting the rights and interests of all shareholders, including activists.

Please click on a company name above to go directly to the case study.

Bank of America: Of Accounts and Accountability

The issue. Is the board responsible for preventing honest administrative errors? On April 28, the Federal Reserve Board announced that it would require Bank of America Corp. to suspend planned increases in capital distributions and resubmit its capital plan. This requirement followed disclosure by Bank of America that the bank made an error in the data used to calculate regulatory capital ratios used in the most recent stress tests conducted by the Federal Reserve. The error was unintentional and, in comparison to the $2 trillion on the balance sheet, small. Nonetheless, the consequences became clear at the annual meeting on May 7, when the California State Teachers’ Retirement System (CalSTRS) pension fund voted against four of five members of Bank of America’s audit committee. “The shortcomings in processes and risk controls underscore the need to make the necessary changes to ensure this sort of issue does not arise again,” opined CalSTRS spokesman Ricardo Duran in an e-mailed statement to the Wall Street Journal. Yet only a minority of investors joined the California giant. Apparently, most investors shared the views of William Smead, chief investment officer of  Smead Capital Management in Seattle, who told the Wall Street Journal that the bank’s CEO Brian Moynihan “is a straight shooter” so his fund would “stay the course.” At the meeting, shareholders elected the full board for another term, approved all the management proposals, and rejected all four shareholder proposals; still, the CalSTRS campaign and commentary fired warning shots heard around the governance world.

The lesson. Boards cannot prevent error, but they can ensure quality of both processes and people. Clearly, this bank (like every institution) can continue to improve its controls. On the other hand, when management is willing to admit mistakes and act quickly, and the board has supported this progressive direction, it’s hardly time to change leadership.

Darden Restaurants (and Pfizer): The Right to Sell (or Buy)

The issue. Should cut-or-keep strategy be decided by boards and management or by shareholders? On May 16, Darden Restaurants Inc. announced a definitive agreement to sell its Red Lobster chain restaurant business and related assets, and assumed liabilities to Golden Gate Capital for $2.1 billion in cash. Red Lobster was failing and the board opted to sell it rather than turn it around. The deal will net Darden about $1.6 billion, of which approximately $1 billion will be used to retire outstanding debt. The deal is expected to close in early 2015 after necessary regulatory approvals. A week later, on May 22, Starboard Value, protesting the sale, put forward a full slate of candidates for Darden’s board of directors to be voted on at the company’s June 22 annual meeting. (Similar questions arose on the buy side at the Pfizer annual meeting on April 24 during the recently ended Pfizer bid for Astra-Zeneca.)

The lesson. Boards have a right to exercise judgment on whether a struggling company should turn around or sell off part of the business—or, conversely, whether a market leader should grow via merger. Analyst John Maxfield, writing about Red Lobster for the popular investment site Motley Fool, observed that turnarounds rarely succeed. He cited wise words from Warren Buffet, who wrote the following back in 1980: “When a management with a reputation for brilliance tackles a business with a reputation for poor fundamental economics, it is the reputation of the business that remains intact.” The Darden board apparently believed that the fundamental economics of Red Lobster were unfavorable so they sold it. (On the buy side, the Pfizer board made a similarly justified strategic decision—not to let go of a division, but instead to chase, and subsequently let go of, a dream.)

Staples: A Matter of Discretion

The issue: Can the board justly exercise discretion in pay in order to retain executives during a turnaround? The Staples board believed so, and proceeded in good faith to pay accordingly, but shareholders disagreed. On March 3, the Staples board rewarded executives for their added workload in turning the retailer around by approving a “2013 Reinvention Cash Award.” The board also approved an extra reward cycle to retain executives and staff who had not received a bonus in two years due to dragging financials caused by the poor economy for consumer discretionaries. Institutional Shareholder Services (ISS), a proxy advisory firm, urged investors to reject the plan in their advisory “say-on-pay” vote at the annual meeting on June 2. ISS carries considerable influence in the proxy policy-setting and voting processes, and in this case apparently they did, as a majority of shareholders (53.64%) voted against the Staples plan. At that same meeting, 50.66 percent of shareholders cast advisory votes to split the chair and CEO roles at the retailer.

The lessonWhile directors should make every effort to comply with their policies when awarding pay, they should reserve and defend the right to exercise discretion; similarly, directors are the ones who should determine the independent leadership structure for their boards. When boards exercise compensation discretion, for example by making an award that did not appear in a plan, they need to clearly communicate early on their reasons for doing so. This is a key finding of the NACD Blue Ribbon Commission (BRC) on Executive Compensation, convened in 2014, as well as previous BRCs on the topic. Communication, not compensation, may be the core issue here. (Then again, communication of any point requires two parties—the speaker and the listener. In some cases, however, it simply may be that shareholders are unwilling to hear management’s reasons for a nonroutine pay decision.)

Target: Expecting the Impossible?

The issue. If a board knows that a particular risk exists and takes action to defend against it, are directors to blame if the defense does not function well enough to prevent harm? In mid-2013, anticipating hacker problems, Target began installing a $1.6 million malware detection tool made by the computer security firm FireEye; yet due to a break in the chain of alerts during the most recent holiday season, the defense did not work and Target suffered an attack at the height of the holiday shopping season. Subsequently—despite swift response to the problem (replacing the chief information officer and strengthening security)—ISS recommended that shareholders vote against 7 of the company’s 10 directors at the company’s June 11 annual meeting, urging rejection of the members of the audit and corporate responsibility committees. The day before the meeting, Luis Aguilar, a commissioner at the Securities and Exchange Commission, mentioned the Target incident in a speech at the NYSE, and observed that “effective board oversight of management’s efforts to address these issues is critical to preventing and effectively responding to successful cyber-attacks.” Shareholders did vote by a majority on June 11 to keep the full board, but concerns linger. More than 90 lawsuits have been filed against Target by customers and banks for alleged “negligence,” and they are seeking compensatory damages as well.

The lessonThe line between the board and management is still distinct, but it is no longer bright; it will vary by company, so it is up to each board to find it. IT risk oversight is not easy. NACD’s Director’s Handbook Series on Cyber-Risk Oversight recommends that boards approach cybersecurity as an enterprise-wide risk management issue, and encourages directors to understand the legal implications of cyber risk as they apply to their company’s specific circumstances. Boards can encourage them to build that arsenal. Meanwhile, boards can and should vigorously defend themselves against voting campaigns that would disrupt board continuity at the expense of various stakeholders, including not only shareholders but also employees and their communities.

Walmart: What Price Integrity?

The issue. Does the board have a right to invest heavily in building an ethical culture or should shareholders get more of that money? Sometimes it seems that boards are damned if they do and damned if they don’t. On June 6, Walmart shareholders voted to reelect the entire Walmart board, and to reject a proposal that would mandate a separate chair and CEO, among other votes. This vote occurred despite campaigns against the directors in March; both the CtW Investment Group (on March 19) and ISS (on March 25) issued reports critical of Walmart, recommending that shareholders vote against two existing directors, as well as the company’s executive compensation proposals. They claimed that the company failed to disclose information to shareholders regarding sums spent on investigations into alleged company violations of the Foreign Corrupt Practices Act. In fact, Walmart did publish a global compliance report with details on its programs, so the main reason for the critique seems to be the amount of money spent on compliance. Randy Hargrove, a Walmart spokesperson, has assured the public that “[t]he board has authorized whatever resources are necessary to get to the bottom of the matter.”

The lesson. Boards have the right and, one might argue, the obligation to invest resources to ensure ongoing efforts to improve compliance and integrity. Global companies have many employees and agents to oversee. Policies can go only so far. Perhaps the best guidance here comes directly from the classic Delaware Chancery Court decision in the Caremark case (1996) in which Chancellor William Allen, finding in favor of a defendant board in an insurance kickback case, held that a board as part of its duty of care has an obligation to “exercise a good faith judgment that the corporation’s information and reporting system is in concept and design adequate to assure that appropriate information will come to its attention in a timely manner as a matter of ordinary operations.” If a board fulfills that requirement, its oversight should be praised rather than condemned.

Ashford: A Tale of Two REITs

The issue. Who gets to determine governance—the board or shareholders? The recent history of the Ashford REIT complex provides a real-world laboratory for the issue. It all started in February when the Ashford Hospitality Trust (AHT) board amended AHT bylaws to require board approval of any future bylaw amendments. (Previously, AHT bylaws could be amended by shareholders without board approval.) One reason for this amendment is that the AHT board wants the company to remain under the protection of the Maryland Unsolicited Takeover Act (MUTA). The AHT board also voted to increase the number of shares required to call a special meeting of shareholders. In response, ISS called on shareholders to withhold votes for all but one director at the annual meeting on May 13. At that meeting, all directors were voted in by a majority of votes cast, despite a high amount of negative votes for the targeted directors. Earlier, shareholders of an AHT spin-off, called Ashford Hospitality Prime (AHP), which is advised by AHT, approved two proxy proposals submitted by Unite Here, a union representing workers in the garment and hospitality industries. AHP shareholders voted by a majority of 68 percent to have the company opt out of MUTA—a result that the AHT board hopes to avoid. So far the board of AHT is holding firm in favor of takeover protections and remaining under MUTA protection, unlike its AHP spin-off.

The lesson. Within the bounds of legal compliance, governance is a responsibility of the board, not the shareholders. So when it comes to preserving corporate independence, boards need not give up their corporate shields just because activists accuse them of being too defensive. This may well be a case of rhetoric versus reality. When the MUTA was passed 15 years ago (in 1999), the Baltimore Business Journal hailed it as good for investors: “Corporate takeover bill protects stockholders,” read the news item. In an editorial detailing the law’s provisions to a painstaking degree, the Baltimore Business Journal concluded: Some public commentary on the takeover bill has mistakenly suggested that it takes away all obligations directors have to stockholders. To the contrary, unlike Pennsylvania’s corporate law, which is highly pro-management and provides no relief to investors or stockholders in Pennsylvania corporations, Maryland law now provides some increased procedural advantage to and greater flexibility for directors, while preserving the primacy of stockholder value and providing an escape valve from the most troubling provisions for future investors in Maryland corporations. It seems that with the passage of time, and inattention to statutory language, the anti-MUTA myth has risen again. We will watch this case for further developments.

Conclusion

These developments have involved different issues—financial planning, mergers and acquisitions, compensation, cybersecurity, internal controls, and takeover protection. Nevertheless, these developments point to the need for ongoing director education on risk oversight in all of these areas, not just in a classroom, but also on the job, and with more active monitoring. These stories also show the value of understanding the evolving expectations of governance itself. As directors face increasing pressures to continually know more and do more, they can strive to improve, yet at the same time recognize the intrinsic limitations of the board’s role. Directors should also seek to provide investors with information on the context and rationale behind the board’s decisions, as part of the company’s overall shareholder engagement and communication program. This close look at current struggles has yielded important lessons—and guidance for an ever-challenging future.

NACD Board Names Dr. Reatha Clark King Chairman

May 23rd, 2013 | By

On May 23, NACD announced the election of Dr. Reatha Clark King to chairman of our board of directors. While Reatha’s role as chair is new, her relationship with NACD goes back many years. She has been a member of NACD since 1993, an NACD director since 2005, and chaired the governance committee in recent years.

An unconventional path

Reatha’s directorship experience is extensive; she has served on the boards of ExxonMobil, Wells Fargo & Co., H.B. Fuller Co., Minnesota Mutual Insurance Co., and The Lenox Group—in addition to several nonprofit organizations. She has followed, however, what I would call an unconventional path to the boardroom. After earning undergraduate degrees in chemistry and math and later a PhD in chemistry from the University of Chicago, Reatha began her career in the sciences, working as a research chemist for the National Bureau of Standards, and then becoming a professor of chemistry and an academic dean at York College. After earning another degree—this time an MBA—she became the president of Metropolitan State University in Minnesota. Reatha was then tapped to head the General Mills Foundation, where she spent 14 years leading the company’s community initiatives. From there, she added the aforementioned board seats to her already impressive resume.

Preparing for 2020 and beyond

Looking ahead, Reatha’s experience in both the corporate arena and academia makes her particularly well-suited to guide NACD and its NACD Directorship 2020 initiative. NACD Directorship 2020 aims to help boards understand, define, and prepare for the emerging and evolving issues that will shape the future of directorship. It gives me great confidence that Reatha will be leading our organization as we prepare for 2020 and beyond.

I’m also honored that Barbara Franklin, who has led our board for the last four years, will continue to serve as a director until May 2014. Barbara has had a tremendous impact on NACD, overseeing our unprecedented membership growth during her tenure and helping us solidify our position as the authority on leading boardroom practices.

As I look at our excellent board of directors and management team, I am more confident than ever in NACD’s ability to deliver on our mission to advance exemplary board leadership.

NACD Spearheads Alternative Solution to Mandatory Audit Firm Rotation

June 22nd, 2012 | By

Next week, the Public Company Accounting Oversight Board (PCAOB) will hold its second public hearing on a proposed rule that would mandate audit firm rotation for all publicly traded companies. One concept the PCAOB has floated is a requirement that public companies rotate audit firms at least every 10 years.

The concept has been floated as a way to address flagging investor confidence in the ability of public audit firms to maintain strict independence.  However, the proposal could have an unintended adverse and far-reaching impact on public companies, not only for directors but also for executives, investors and shareholders.

NACD members across the nation are raising concerns about this concept.  In response, NACD is leading an initiative to engage the corporate governance community and propose an alternative solution—one that allows directors to retain their governance authority while also addressing what the PCAOB perceives to be a lack of investor confidence in the processes by which companies ensure auditor independence.

Audit quality and independence are important issues for directors, and reassuring investor and regulator confidence is a worthy goal.  But in our view, mandatory auditor rotation devalues and undermines the important role boards—and audit committees in particular—play in helping auditors maintain independence, objectivity and skepticism.

In our formal comment letter to the PCAOB, NACD expressed concerns about this proposal on behalf of our members and the entire boardroom community.  We objected to a mandated “one-size-fits-all” solution that would detract from the authority of the audit committee, supplant the board’s governance process and possibly generate unintended risk for the company.

The NACD was not alone in raising questions about the concept. The public comment period triggered a record-breaking volume of comment letters to the PCAOB and vigorous discussion at a roundtable in which NACD participated here in Washington last March.  Several roundtable panelists suggested that NACD was a key source to weigh in on board-level solutions, and the PCAOB noted that it would be receptive to our input.

The NACD Audit Committee Chair Advisory Council is spearheading this initiative, building a coalition comprised of investor representatives (including the Council of Institutional Investors) and the audit profession (including the Center for Audit Quality).   This coalition has a dual mission:

  1. Identify and evaluate with the corporate governance community an alternative solution to mandated regulations on auditor rotation.
  2. Promote this solution within the community and advocate its beneficial effects to the PCAOB and other influencers.

Our goal is to provide our recommendations and rationale to the PCAOB no later than December 2012, in anticipation of the PCAOB finalizing its recommendations in early 2013.

We need your input.  As a first step to formulating an alternative solution to mandatory auditor rotation, we are asking our 12,000 members to offer their own insights on how boards—and audit committees in particular—can apply leading practices to build investor and public trust.

Click here to provide your thoughts through a brief electronic survey. Responses are anonymous and will only be reviewed in aggregate form.

Your participation in this initial survey is a first step in shaping a framework for recommendations that will guide audit committee behavior and actions on matters of auditor independence, objectivity and skepticism.  These recommendations will be shared with the director and investor communities over the course of the coming months.

Ultimately, NACD will deliver these recommendations to the PCAOB by the end of the year, and we will position those concepts as representative of the will and the expertise of the public company directors and boards.

At NACD, we are committed to advancing and promoting best practices of companies to ensure proper board oversight that protects shareholders, investors and employees.