Gretchen Morgenson: 20 Years of Corporate Governance

In her last column for the New York Times, Gretchen Morgenson summarizes the best and worst and most improved of the corporate governance issues she has reported on, quoting VEA Vice Chair Nell Minow:

Nell Minow is a corporate governance expert and vice chairwoman at ValueEdge Advisors, a firm that guides institutional shareholders on reducing risk in their portfolios. She has been rattling cages in the governance field since the mid-1980s and says she’s seen a definite improvement in boardroom makeup and practices.

“When I started in this field, O. J. Simpson was on five boards, including the audit committee of Infinity Broadcasting,” she recalled in an interview. “And at another company, the C.E.O.’s father was on the compensation committee. We’ve come a long way.”

That’s not to say that problems arising from sleepy and clubby boards have been eradicated. “Exhibit A is executive compensation,” Ms. Minow said. “The first C.E.O. pay package I ever complained about was $11 million. The very fact that that has gone completely berserk shows that boards are still a long way from where they should be.”

FT: Investors pass the buck on governance VEA: No They Don’t

Rana Foroohar’s column on institutional investors and corporate governance is internally inconsistent and factually wrong. She says that institutional investors “outsource” their proxy votes to the proxy advisory firms. But anyone who understands finance and markets has to recognize that (1) institutional investors rely on a wide range of sources for making all investment decisions, including proxy voting, and that they make decisions about the sources they rely on based entirely on their assessment of value, (2) the data show that institutional investors like the analysis of the proxy advisory firms but often depart from their recommendations, especially on complex and controversial votes like proxy contests and business combinations, and (3) the votes she focuses on, regarding CEO pay, are advisory only and can be disregarded by the board

In other words, even if they do “outsource” their fiduciary obligation (no evidence this is the case), the vote is not binding on the company, which can ignore it.

She writes:

Consider the recent saga of Credit Suisse. Over the past couple of years, the company has been trying to orchestrate a turnround, settling a big fine over dicey (pre-financial crisis) mortgage-backed-security deals with the Department of Justice, offloading bad assets and restructuring the business. None of this is good for share price in the short term, but it was necessary. No surprise, then, that the Credit Suisse management team was disappointed when proxy advisers opposed its corporate pay plan, citing 2016 losses, despite the fact that the top brass took a 40 per cent cut in its own compensation as part of the turnaround effort. “It was just totally demotivating for staff and management,” says one insider. “We could have left these decisions for someone else to worry about later and there would have been no issue over pay.”

ISS stands by its recommendation, and adds that it does take into account other performance metrics, like return on invested assets, revenue growth, and so on. But TSR is “what investors want to see,” says Patrick McGurn, special counsel at ISS, and therefore determines a yes-or-no vote on pay. “We’ve talked to our clients about using non-financial performance to judge pay, but they want something quantifiable. You can’t just have some vague judgment about it.”

A couple of points here. First, Foroohar completely undercut her own argument by showing that it is the institutional investors and proxy advisory service clients who tell ISS what to do, not the other way around. Second, if, indeed, the turnaround will provide benefits to investors, that is when the benefits should be realized by the employees as well, and there are pay plans that provide all the right incentives to do so.

Source: Investors pass the buck on governance

Harvey Weinstein is also a jerk. That alone should have gotten him fired. – The Washington Post

Emily Yoffe writes about the corporate governance failure at The Weinstein Company. She says even in the almost unthinkable case that the board and executives did not know about his constant sexual harassment and abuse (reportedly, his employment contract explicitly recognized it), they did know enough about his public inappropriate behavior to recognize that, as the company’s public presence, he was a huge potential liability.

What is undeniably true is that Harvey Weinstein’s abhorrent public behavior, toward men and women, in front of witnesses, should have forced his business partners to take serious action against him years ago. If they had, it’s possible that many people would have been saved from his attacks, including the women he assaulted in private — and the spectacular dissolution of the Weinstein Company wouldn’t be a business school case study in how ignoring the bad acts of a key employee can wipe out the whole operation.

Source: Harvey Weinstein is also a jerk. That alone should have gotten him fired. – The Washington Post

The truth about Jeff Immelt and General Electric’s corporate jets

VEA Vice Chair Nell Minow was asked to comment on reports that former GE CEO Jeff Immelt not only flew in a corporate jet but on some trips had a second GE jet follow with no passengers in case he needed a back-up.

Corporate governance hawk Nell Minow told CNBC it is difficult to know how many global companies use similar practices.Many companies have shifted to using fractured ownership of private jets, which makes oversight more difficult.

“Whatever benefit General Electric saved or extra layer of security they achieved, it was not worth the hit to their reputation,” Minow said.

Source: The truth about Jeff Immelt and General Electric’s corporate jets

When a Company Is Profiting From the Opioid Crisis – The Atlantic

On July 26, at the annual shareholder meeting of McKesson, the nation’s largest distributor of pharmaceuticals, including opioid drugs, shareholders refused to approve the company’s generous executive-compensation plan after the International Brotherhood of Teamsters—which holds stock in McKesson—campaigned against it, citing the company’s “role in fueling the prescription opioid epidemic.” McKesson rejected that characterization, and denied that it had any such role. Calling the opioid, heroin, and fentanyl epidemic “complicated,” Jennifer Nelson, a spokesperson for McKesson, told me that “in our view, it is not to be laid at the feet of distributors.” The Teamsters, she charged, were trying to use the addiction crisis to their advantage in their ongoing labor dispute with the company involving the union’s efforts to represent workers at a McKesson distribution center in Florida.<P><P>The shareholder vote, which isn’t binding—McKesson says it’s still reviewing its current compensation plan—may seem like a minor slap over an esoteric bit of corporate governance, but it was a notable exception among public companies. According to the consulting firm Compensation Advisory Partners, of 447 say-on-pay votes among S&P 500 companies this year before early August, only five, including McKesson, suffered rejection. The Teamsters view the outcome as a success, especially at a time when unions’ power has waned. “Unions have been pushing for years for standard good-governance practices” in companies, says Michael Pryce-Jones, the union’s senior governance analyst. “This has importance across political divides.”

Source: When a Company Is Profiting From the Opioid Crisis – The Atlantic

Rosanna Landis Weaver reviews The CEO Pay Machine 

Our favorite expert on CEO pay, As You Sow’s Rosanna Landis Weaver, likes Steven Clifford’s new book, The CEO Pay Machine: How it Trashes America and How to Stop It.  We recommend the book and Weaver’s review:

Clifford takes apart all the components with a fresh eye. He is skeptical, for example, of the mantra of pay for performance. He notes that bonuses that don’t change behavior are a waste of money, and that many that do change behavior may change it for the worse. “All pay-for-performance systems cause more harm than good,” he writes. “They generate perverse incentives, undeserved and often absurdly high bonuses, and damage the companies that use them.” … He also speaks with great insight about the role of directors. “It’s impractical, if not impossible,” he notes, “for board members committed to being supportive players on the team to transform themselves into hard-nosed negotiators.”

Source: Book Review: The CEO Pay Machine – CEO Pay Updates: 2017 Proxy Season

It’s a dangerous time to be a bad CEO – The Washington Post

In its annual report, released Tuesday, the Conference Board found that among Standard & Poor’s 500-stock index companies that were in the bottom group of performers — as ranked by their total shareholder return — the CEO succession rate jumped five percentage points, from 12.2 percent in 2015 to 17.1 percent in 2016. That’s well above the 13.9 percent average over the past 16 years, said Matteo Tonello, the Conference Board’s managing director of corporate leadership, and the highest rate since 2002, when 21.2 percent of S&P 500 companies made a change at the top.

Source: It’s a dangerous time to be a bad CEO – The Washington Post

How Badly Must a C.E.O. Behave Before His Pay Is Clawed Back? – The New York Times

Gretchen Morgenson writes in the New York Times:

[There is] a lawsuit unfolding in Delaware Chancery Court…that involves the former chief executive of United and a prime figure in the Bridgegate scandal that has dogged Gov. Chris Christie of New Jersey. The facts of the case reflect a similar disdain for United’s shareholders by the corporate board members who are supposed to serve them.

At the heart of the lawsuit is the refusal by United’s directors to retrieve any of the $28.6 million received by Jeffery A. Smisek, United’s former chief executive, when he was defenestrated in 2015 amid a federal corruption investigation….In a litigation demand, [The City of Tamarac, Fla., Firefighters Pension Trust Fund] requested that the company’s board claw back the severance pay given to the executives who took part in the bribery scandal. By doing so, United’s board would correct its breach of fiduciary duty and prevent “the unjust enrichment” of company executives.

Seems fair enough. But United’s board has refused. Its justification for not recouping the pay is, well, pretty rich.

In a letter to the pension fund, a lawyer for United explained that it would harm the company to give the board “unfettered discretion to recoup compensation” in cases involving wrongdoing. “Where such discretion is out of step with industry norms,” the letter said, it would “make it difficult for United to recruit and retain top talent, particularly at the senior management level.”

In other words, clawing back severance awarded to executives amid a bribery investigation is not industry practice. And if United pursued such a recovery, the airline would be an outlier and unable to hire good people.

How Should CEOs Deal with Trump?

One odd and compelling consequence of the Trump era has been the way it has affected, flummoxed, and exposed America’s corporate titans. A class of people who are accustomed to deference and are possessed of extraordinary self-confidence and agency hasn’t quite known how to react to the new regime.

Ordinarily, CEOs can support GOP standard-bearers who promise to cut taxes and slash regulations without anyone blinking. But a polarizing, willfully un–PC politician like Trump poses a challenge for many modern CEOs. He’s a walking violation of a host of human-resources policies and stands in stark opposition to the corporate-style progressivism that permeates so many consumer-facing companies today. As a group, Fortune 500 companies today are socially liberal, especially on areas surrounding diversity, gay rights, and immigration; they are unabashedly in favor of free trade and globalization, express concern about climate change, and embrace renewable energy. Trump is none of these things.

And so we’ve seen a range of reactions. There’s a group of CEO types, mostly crusty older guys like Carl Icahn and T. Boone Pickens, who are unapologetic Trump fans—and in some instances his pals. Since they founded their companies and are far beyond caring what other people think, getting in bed with Trump politically isn’t an issue.

As people in public life, CEOs often feel compelled to offer anodyne support for the new CEO of the country.

But many others have had to walk a tightrope. Immediately after the election, many CEOs felt compelled to reaffirm their own—and their companies’—values in the face of Trumpism. As Pepsi CEO Indra Nooyi noted, “My employees were all crying. The question that they are asking, especially those who are not white—‘Are we safe?’ Women are asking, ‘Are we safe?’ LGBT people are asking, ‘Are we safe?’—I never thought I would have to answer those questions.” She continued: “So, I think that the first thing that we have to do is to assure everyone living in the United States will be safe.” And Pepsi, however clumsily, has attempted to capitalize on the progressive pushback against Trump’s policies—even as Nooyi serves on Trump’s Strategic and Advisory Council.

As people in public life, CEOs often feel compelled to offer anodyne support for the new CEO of the country. And that’s typically not a big deal. But some CEOs have found that doing so can get them into hot water with their customers, key employees, and endorsers.

Source: Jamie Dimon steps in it.

10 top CEOs who earn salaries of less than $50,000

Taking only $1 in compensation has become something of a point of pride in Silicon Valley.”The dollar salary really for them is meant to signify that they have large stakes in their company. The value they’re going to receive — the compensation they’ll earn — is coming solely from their stock,” Aaron Boyd, director of governance for Equilar, a company that researches executive compensation, explains to Forbes.”

You’re not going to question whether or not Larry Page is interested in growing a company’s stock as a shareholder. As one of the largest shareholders, he’s all in.”

Source: 10 top CEOs who earn salaries of less than $50,000