Home > Uncategorized > A tipping point for the reputation of activist investing

A tipping point for the reputation of activist investing

It’s hard to imagine how the sun would shine more ackmanbrightly (or hotly) on activist hedge funds.  Pershing Square scored the top spot in Bloomberg’s annual performance ranking for the entire hedgefund industry with 32.8% return. Assets under management in the sector have surged to $120 billion, according to the Alternative Investment Management Association.  Funds are taking on US blue chip companies with surprising frequency:  Dupont, General Motors, Apple, BNY Mellon, and the list goes on.  In step with this ascendancy, the media have started to take a holistic view of activist investing and the basic question is:  are these guys good for the system?

Journalists understand that investors and the economy at large benefit from counterweights to entrenched corporate management and boards of directors.  The media know that companies, especially large companies, can become complacent and sag under their own weight.  The media recognize that it is good to shake up the system now and then.  The media, however, are not sold on whether activist hedge funds are a productive, corrective force in the capital markets.

As a result, the reputation of activist hedge funds is at an inflection point at a time when they are at their most prominent, in terms of activity in the market and footprint in the media.  Recent media coverage has been thoughtful about both sides of the activist coin.  As a group, journalists believe in challenges to authority and are predisposed to accepting the basic thesis of activist investing.  In the words of the editors of Bloomberg View, “crafting policies that aim to stifle shareholder dissent is a dumb idea…Suppressing it [the ability of shareholders to turn on managers] with corporate-governance rules that make it harder for shareholders to challenge managers would do far more harm than good.”

The Financial Times credits activists for “advancing the cause of shareholder democracy and good corporate governance, which was otherwise moving at a glacial pace in the hands of traditional institutional equity owners. That is one secular shift that investors can take comfort in, but it brings societal and market-wide benefits, not ones that accrue to activists specifically.”

The Economist echoes the view that other equity owners have done little to advance corporate performance and governance:  “they [index managers such as BlackRock andVanguard] have not in the past felt much need to worry about how the firms they invest in are run. Alongside them are the managers of mutual funds and pension funds, such as Capital Group and Fidelity. They actively pick stocks and talk to bosses but their business is running diversified portfolios and they would rather sell their shares in a struggling firm than face the hassle of fixing it.”

However, hedge fund tactics frequently alienate would be allies in the media and fuel criticism of the activist sector, especially as the largest US companies come under pressure from activists.  Stock buybacks are an example.  About GM’s $5 billion buyback precipitated by Harry Wilson of MAEVA Group and other funds, the Deal Professor column at the New York Times calls the push for buybacks a “worrying trend” and writes, “the haste in which G.M. rushed to comply to Mr. Wilson’s demands, and they and other companies shed cash rather than fight, shows that the activist tide pushing the stock buyback may have gone too far.  Let’s hope that it doesn’t wash our companies and shareholders.”  The Economist called buybacks “corporate cocaine” and an influential paper from Harvard advocates banning them.

Buyback strategies have driven many of the recent campaigns focused on blue chip companies (a trend noted here more than two years ago).  What’s unusual is that about a third of recent corporate targets were outperforming the market when the activist campaign began.  Media have questioned the utility of this, especially given the distraction created for management and boards.  The Times comments, “trying to break up great companies only weakens one of America’s greatest competitive advantages: the leadership, strength, and adaptability of its global companies. The activists should keep their focus on the underperformers, and work to build the next set of great companies…”

It is too early to judge what Main Street thinks about campaigns to pressure major corporations that by many measures are doing well, but anecdotal evidence shows that small investors give the benefit of the doubt to management.  See the comments to this story about Dupont and Trian.  If investors tire of a perpetual war with activists, one idea that could gain traction is tenured voting, a way of giving long-term shareholders more voting power than new shareholders.  The Wall Street Journal recognizes tenured voting as “providing a bulwark against short-termers who roam the markets, looking to force buybacks or an untimely company sale.”

Then there are the cases of obvious excess that occur with alarming regularity in the the activist sector. Herbalife: a very public case of hedge fund on hedge fund violence.  Valeant: a fine line between innovation and insider trading. Now, we have Stake ‘n Shake and its activist counterattack to an activist campaign.  The Journal quotes activist specialist Greg Taxin: “One could fairly worry that this [Stake n’ Shake] proxy fight represents the jump-the-shark moment for activism. Serious activism can improve performance and enable more efficient capital markets. This isn’t that.”

We are at an inflection point in the evolution of activist investing.  No hedge fund has created a broader narrative about the role of activism in our market system.  The jury is still out on whether activists are the market watchdogs they claim to be.  The risk is that hedge fund tactics create a backlash and that corporations, with the support of institutions, small investors and even the courts, succeed in changing rules that whittle away at the activist toolbox (proxies, disclosure and short selling, etc) in order to further entrench management.

The SEC acknowledges that there is a debate bout whether activists are good for the market and the economy.  While not taking a side (yet), Major Jo White said, “I do think it is time [for activists] to step away from gamesmanship and inflammatory rhetoric that can harm companies and shareholders alike.”

The Economist suggests two possible paths.  Activists “could mature to become a complement to the investment-management industry—a specialist group of funds that intervene in the small number of firms that do not live up to their potential, with the co-operation of other shareholders. Alternatively it could overreach—and in so doing force index funds and money managers into taking a closer interest in the firms they own. If that is the way things go, activists could eventually become redundant.”

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