In 2011, ABC submitted this comment letter to the Securities and Exchange Commission (SEC) in support of a petition for rulemaking by the law firm Wachtel, Lipton, Rosen & Katz. Wachtel’s petition called for shortening the ten-day filing window under SEC rules between the time a shareholder or group of shareholders amasses a five percent position in a publicly-traded company and when it must report that fact to the Commission.
The ten-day period, as noted in our letter, is an anachronism that has been exploited by hedge funds and other large activist investors to trade on material, inside information. ABC argued for immediate disclosure of a five percent position.
The SEC never took action on this matter and the Wachtel petition languished.
Now, interestingly enough, a group of liberal Democratic Senators, including Bernie Sanders, has introduced legislation that would, among other things, shorten the ten day period to two. The bill is called the Brokaw Act (S. 2720). It is named for a town in Wisconsin that saw its paper mill closed due to hedge fund maneuvering, according to the bill’s chief sponsor, Senator Tammy Baldwin of Wisconsin. Other sponsors of the Baldwin Act are Jeff Merkley (D, OR) and Elizabeth Warren (D, MA).
Hedge funds are important players in the capital markets and corporate takeovers can lead to great economic efficiencies. But the ten-day window between the time a five percent position in a publicly traded company is acquired and the disclosure of that fact cannot be justified in a period of rapid information dispersal. The window should be narrowed, if not closed, ideally by the Commission or, if not, via the Brokaw Act.
This article, written by American Business Conference president John Endean and published in the Wall Street Journal, demonstrates that there are more individual holders of “street shares” than normally supposed and outlines a proposal at the Securities and Exchange Commission to make it easier for these individual shareholders in corporate elections. The goal: an expansion of corporate democracy at a time when corporate elections are tackling difficult social and economic policy issues.
At the recent Apple shareholders meeting, Tim Cook, the company’s CEO, popped his cork during the question and answer session. A representative of an organization that owns Apple stock and is apparently skeptical of Apple’s sustainability programs, asked Cook to commit to such programs only if they are good for Apple’s bottom line.
Something about the question or perhaps the questioner got under the CEO’s skin. Certainly he wouldn’t be the first corporate executive to find questions from shareholders annoying. Rather than hold his temper and finesse the question, Cook asserted that in some cases he does not “consider the bloody ROI [return on investment].” He then told his interlocutor that “if you want me to do things only for ROI reasons, you should get out of this stock.”
Advising shareholders to sell a stock at a time when the stock is already widely considered undervalued was probably not the best of responses. Maybe Cook had no choice given that his most famous board member, Al Gore, was sitting on stage behind him.
Still, the notion that a CEO can claim to make decisions arguably not in the financial interest of shareholders and that such decisions should not be subject to questioning by those shareholders seems odd. It is an illustration of a much larger public perception that corporations are or should be vehicles for social change rather than merely organizations to create wealth. This idea is appealing only insofar as one agrees with the “non-ROI” decisions of the CEO. That may not always be the case at all companies.
It would probably be best for CEOs to focus on generating shareholder value in a manner consistent with our laws and ethics. Doing so may indeed include supporting sustainability programs as part of building that value.
But looking to CEOs to use at their discretion shareholder money to effect social and political changes unrelated to the bottom line is a very bad idea. That it is a bad idea whose time may have come is, at bottom, a commentary on the dysfunction of our political system where social and political change should, ideally, be debated but so often is not.