Bloomberg

By Crystal Tse

July 10, 2023 at 8:30 AM EDT

Updated on July 10, 2023 at 10:30 AM EDT

The first proxy season after a key US rule change was expected to rock the shareholder activism world. Instead, the universal proxy card turned typically public battles into something more private and discreet, with settlements reached behind the scenes or very quickly once they become known.

For the first half of the year, the number of new activist campaigns in the US inched up by 13% to 196 from 173 for the same period in 2022. Private discussions with companies aren’t captured in the data.

Here are some of the activism highlights of the year’s first half and what’s shaping up for the rest of 2023.

Universal Proxy

The US rule change that took effect last year allows shareholders to vote for individual board nominees instead of picking between company and activist slates. That’s led to more settlements in private earlier on when investors show up rather than letting challenges evolve into public proxy battles, advisers said.

“Some companies and boards are more eager to wrap things up or make change proactively to avoid the cost and distraction of a fight, but also because of a perception that with universal proxy, more cards are stacked against you,” Elizabeth Morgan, a partner at law firm King & Spalding said.

That could lead to quicker settlements. Burger chain Shake Shack Inc. added an independent director to settle a fight with Engaged Capital in May, about 48 hours after news of Engaged’s position was reported.

There’s no lack of public board fights and large companies aren’t immune. Salesforce Inc., with a market value of $204 billion, had to deal with a swarm including Elliott Investment Management, Starboard Value LP, Jeff Ubben’s Inclusive Capital and Third Point LLC — before taking steps to avoid a board fight. Salesforce appointed three new independent directors, including ValueAct Capital Management Chief Executive Officer Mason Morfit.

In a contrast showing the effect of the US rule change, Canada saw a surge in campaigns to 42 from nine. Algonquin Power & Utilities Corp. and the contested takeover by Ritchie Bros Holdings Inc. of IAA Inc. attracted more than half a dozen activists.

One other trend to watch: while campaigns involving companies valued at $1 billion or more fell by almost 4% globally, those against smaller companies jumped 47%, the data show.

Icahn got Icahn’d

Billionaire Carl Icahn found himself on the receiving end of some of his own tactics thanks to a report by short seller Hindenburg Research.

Carl Icahn  Photographer: Bloomberg/Bloomberg

The report came out while Icahn sought board seats and called for the removal of the CEO of Illumina Inc., a $29 billion company. Icahn Enterprises LP has lost more than 40% of its value since May after the short seller blasted Icahn’s company as being overpriced and for paying outsize dividends to its namesake majority owner. Icahn Enterprises, in a statement, has called the Hindenburg report “self-serving.” He’s also amended his agreements with some of his lenders to lower the chances of a potential margin call. The new agreement unties Icahn’s loans from the share price performance of IEP, according to a filing Monday.

At Illumina, one of Icahn’s nominees won a board seat and Francis deSouza resigned as CEO just weeks after being re-elected to the board.

Succession

While HBOs Succession series didn’t get all the details right on the proxy fight by Stewy Hosseini (the actor Arian Moayed), the family dynamics depicted by it are playing out in real life for activists.

Icahn’s Hindenburg episode led to questions on whether it’s time for a new generation to step in. Brett Icahn, the son of the 87-year-old billionaire, is a portfolio manager at Icahn Enterprises and plays a central role in its activism business.

The changing of the guard is already happening at Trian Fund Management with co-founder Ed Garden retiring as chief investment officer after 18 years at the firm. Led by octogenarian billionaire Nelson Peltz, who is Garden’s father-in-law, Trian promoted Matt Peltz, Nelson’s son, and Josh Frank as co-chief investment officers.

Such transitions from a single prominent leader to multiple people and personalities may make defending against activists trickier, said Rich Thomas, managing director at Lazard Ltd.’s Capital Markets Advisory group.

“You need to know ‘who’ is the ‘who’ behind the activist fund, in order to really understand what direction the campaign might take or what tactics the activist may use,” Thomas said.

Biogen, Alkermes

Activist health-care investor Alex Denner resigned from Biogen Inc.’s board while he was agitating for board seats at Alkermes Plc. Former Biogen executive Susan Langer was nominated to replace him on the Biogen board, without disclosing their live-in romantic relationship being disclosed.

Alex Denner  Photographer: Andrew Harrer/Bloomberg

Langer was elected to Biogen’s board but Denner’s hedge fund Sarissa Capital ending up losing its proxy campaign at Alkermes. “Activists should be holding themselves to the same standards that they expect from public companies,” said Lawrence Elbaum, co-head of the shareholder activism practice at Vinson & Elkins, the second most active legal adviser for activists on Bloomberg’s league table.

Rest of the Year

The lead advisers to companies this year have been Goldman Sachs Group Inc., Sidley Austin and Joele Frank, while Squarewell Partners, Olshan and Longacre Square Partners won top spots on the activist advisory side, according to Bloomberg’s league tables.

Positions taken outside of proxy season are already trickling in.

Elliott is agitating at power producer NRG Energy Inc. and calling for a strategic review as well as CEO change. The investor also disclosed a 10% position in tire-maker Goodyear Tire & Rubber Co. asking it to appoint new independent directors and explore a divestment. While Trian had called off its fight at Walt Disney Co. in February, it’s still a shareholder and has added to its stake, Bloomberg News reported in May.

“There are some big campaigns out there, as well as some campaigns that are under the radar,” Lazard’s Thomas said.

Companies are now also more familiar with the universal proxy change after this season so boards will be less rattled by them.

“The big change in the coming year is that people will be less afraid of universal proxy card,” Thomas said. “People are going to settle down a little bit more and will be less likely to jump at the first sign of shareholder trouble.”

(Updates with details of Icahn loan amendment starting in 11th paragraph)