Board Silly or Silly Proposal? A Response to Professor Subramanian

Posted by Jeff Lipshaw

On the way to something else, I saw Ethan Leib’s post over PrawfsBlawg drawing a parallel between the objections to staggered corporate boards, and possible objections to our system of staggered Senate elections.  What inspired Ethan’s observation was an op-ed in today’s New York Times from Harvard Professor Guhan Subramanian (right) on the issue of corporate staggered boards.  Professor Subramanian’s clever and well-written piece is entitled “Board Silly,” but to most corporate lawyers who have spent time in the real world, I’d wager its proposal seemed just plain silly.  (I also commented on the analogy to the Senate over at PrawfsBlawg.)

Here’s the issue.  No matter which side of the issue on which you sit, it’s undeniable that the combination of a so-called “poison pill” and staggered board make it very difficult to mount a successful hostile takeover.  The poison pill makes it almost impossible to initiate, much less complete a tender offer (for reasons too complex to describe here) that does not have the approval of the target board.  If the acquiror has the patience to wait until the next annual election of directors, it can mount a proxy contest.  A proxy contest does not trigger a poison pill.  But if the board is staggered, the acquiror would not be able to take control in a single election.  Indeed, most M&A lawyers would tell you the staggered board is more important than the poison pill.

The standard defense of the companies, when shareholders submit their non-binding resolutions requesting that the board undertake the process of eliminating the staggered board, is that the staggering of the terms promotes stability and continuity within corporate management.  (I made that argument myself, but I’m happy to say as I re-read it five years later, it was hardly the centerpiece of the defense.)  As Professor Subramanian correctly observes, responsible shareholders don’t oppose stability and continuity; what they oppose is the loss of the threat to incumbent management that they can be thrown out quickly if they fail to produce adequate returns to the shareholders.  And there’s the ironic rub.  It’s a crock that the form of the staggered board, as opposed to the substance of the customary practice of board nomination and renomination of its own members, is fundamentally responsible for the stability and continuity of the board (and I couldn’t bring myself to say that even when I was defending it!)  Boards will be stable and continuous as long as their elections, whether unitary or staggered, do not turn into political free-for-alls, which appears to be the goal of at least some portion of the shareholder activist community (primarily the union pension funds).

More below the fold.

Professor Subramanian’s “compromise” is to move the staggered boardfrom the corporate charter, where it cannot be changed (at least inDelaware) without the board’s prior consent, to the bylaws, where itcould be amended by the shareholders at least as easily as they couldmount a successful proxy fight for control of the board.  Somehow hesees this as a favor to the directors “because companies areincreasingly requiring that board candidateswin a majority of votes cast, [and therefore] directors would value theright to faceelection only every three years rather than every year.”

I’m not sure what the basis is for this last empiricalproposition.  The question is whether competent directors are going towant to serve at all in the environment where majority vote versusconsensus is the standard.  By and large, as a matter of form, boards”vote” on the matters before them, but the substance of decision-makingis not majority rule.  (To my sociologist friends:  the form is gesellschaft, but the actual operation of the board and management group is gemeinschaft.)

The flip side of the irony is this from Professor Subramanian:  “Ifdirectors surrender on the question of staggered boards, we riskfurther short-termism in boardrooms and no internal counterweight tomanagers focused on quarterly earnings.”  That’s precisely theargument the directors make in support of the retention of the poisonpill and staggered board!  To wit:  “If our stock price sinks to abargain price as a result of a short-term event, and a raider wants toacquire us on the cheap, and not in the best long-term interest of theshareholders, we need to be able to fend it off.”  Note also theadditional empirical assertions: (1) that short-termism in boardroomsis a rampant problem in corporate America (is it?  I’m agnostic on thatuntil shown some better data); and (2) that it takes the merewindow-dressing of a three-year term in the bylaws to provide acounterweight to managers focused exclusively on the short-term.

Professor Subramanian’s bylaw proposal is an offer of the sleevesoff his vest.  Either the staggered board has a anti-takeover effectwhich overall benefits the shareholders, in which case it is defensibleas a matter of corporate law, or it does not, in which case perhaps itshould go.  (By the way, I think the burden is on those advocating itselimination, but that’s another subject.)  But if I were a director,and the professor offered this to me as a compromise, I’d say “Towhat?  Don’t do me any favors – I can have continuity and stability aslong as your constituencies refrain from making our elections intoreferenda about class inequalities and wealth redistribution.  Anddon’t insult me by suggesting that the only thing that keeps me frombeing a short-termer is the three-year election cycle.  Last I checked,I still minded my fiduciary duties.”