Forum
reference:
Need
for policies to resume support of ultimate investors' interests in use of their
capital to produce goods and services
|
Source:
The Harvard Law School Forum on Corporate Governance and Financial
Regulation, February 23, 2017 posting |
Who Bleeds When the
Wolves Bite?
Posted by Kobi Kastiel, Co-editor, HLS
Forum on Corporate Governance and Financial Regulation, on Thursday,
February 23, 2017
Leo E.
Strine, Jr., Chief Justice of the Delaware Supreme Court, the Austin Wakeman
Scott Lecturer on Law and a Senior Fellow of the Harvard Law School Program on
Corporate Governance, recently issued an essay that is forthcoming in the Yale
Law Journal, which is available here.
The abstract of Chief Justice Strine’s essay summarizes it as follows:
This essay examines the effects of
hedge fund activism and so-called wolf pack activity on the
ordinary human beings—the human investors—who fund our capital
markets but who, as indirect of owners of corporate equity, have
only limited direct power to ensure that the capital they
contribute is deployed to serve their welfare and in turn the
broader social good.
Most human investors in fact depend
much more on their labor than on their equity for their wealth
and therefore care deeply about whether our corporate governance
system creates incentives for corporations to create and sustain
jobs for them. And because human investors are, for the most
part, saving for college and retirement, they do not gain from
stock price bubbles or unsustainable risk taking. They only gain
if the companies in which their capital is invested create
durable value through the sale of useful products and services.
But these human investors do not
typically control the capital that is deployed on their behalf
through investments in public companies. Instead, intermediaries
such as actively traded mutual funds with much shorter-term
perspectives and holding periods control the voting and buy and
sell decisions. These are the intermediaries who referee the
interplay between activist hedge funds and corporate managers,
an interplay that involves a clash of various agents, each class
of which has a shorter-term perspective than the human investors
whose interests are ultimately in the balance.
Because of this, ordinary Americans
are exposed to a corporate republic increasingly built on the
law of unintended consequences, where they depend on a debate
among short-term interests to provide the optimal long-term
growth they need. This essay humanizes our corporate governance
lens and emphasizes the living, breathing investors who
ultimately fuel our capital markets, the ways in which they are
allowed to participate in the system, and the effect these
realities have on what corporate governance system would be best
for them. After describing human investors’ attributes in
detail—their dependence on wages and locked-in, long-term
investment needs—this essay examines what people mean when they
refer to “activist hedge funds” or “wolfpacks” and considers
what risks these phenomena may pose to human investors. Finally,
this essay proposes a series of reforms aimed not at clipping
the wings of activist hedge funds, but at reorienting our
corporate governance republic to truly serve the needs of those
whose money it puts to work—human investors. |
The full essay is
available for download
here.
Harvard Law School Forum
on Corporate Governance and Financial Regulation
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