Archive for November, 2009|Monthly archive page
The mid-nineteenth century vision of the joint stock, limited-liability company was exquisitely simple and superbly successful. Ownership was the basis of power. Shareholders appointed the directors, who reported regularly on their stewardship over the company. Shareholder democracy was based on one share – one vote.
Then something went wrong. Directors took control. As long ago as 1932, in research that is still among the most cited in the corporate governance lexicon, Berle and Means showed that power over public corporations in the United States had become concentrated in corporate boardrooms. What happened to the original notion that power over a corporation should be exercised by the owners? A similar erosion of shareholder power occurred in the United Kingdom, and indeed in most other countries whose company law reflected the old Commonwealth company law traditions.
The UK Cadbury Report (1992) and corporate governance codes in other countries attempted to redress the balance by requiring board-level nomination committees, with independent non-executive director members, to put forward the names of potential directors. But these non-executives, themselves, had been approved by the chairman and CEO, and owed some allegiance to them. The board then put their proposals to the members, who got to vote. But incumbent directors effectively could re-appoint themselves and, when the time came, appoint their successors.
The shareholders of a UK public company can now call for a special meeting of the members, at which a simple majority can vote to remove any (or indeed all) of the directors. Section 338 of the UK Companies Act 2006, broadly, enables members of a public company to require the company to give all shareholders notice of their resolution, provided they hold 5% of the total voting rights or total at least 100 members. But the financial risk and uncertainty of such actions make them newsworthy.
In the United States the situation is worse. One share one vote still prevails, but the board decides which names get on the ballot paper. The only way for outsider candidates to get nominated is through proxies circulated to all the other shareholders at the proposer’s expense. This financial exposure results in most board appointments being uncontested, with incumbent directors keeping their seats around the board room table, with the attendant benefits, even though in practice only a small proportion of shareholders actually voted for them
Attempts to persuade the Securities and Exchange Commission and state regulators to change the rules have been frustrated by aggressive lobbying from corporate director interest groups. The latest attempt by the SEC to reform the system was put on hold earlier this year.
Companies in the United States, of course, are incorporated by individual states. There are no provisions for incorporation at the federal level. Many companies are incorporated in Delaware, because company law and the Delaware companies’ court tend to be sympathetic to their interests. But Delaware company law was changed earlier this year to allow companies to reimburse the costs of circulating the names of outsider directors to other shareholders.
A straw in the wind was reported in the Economist (31 October 2009). The American company, HealthSouth, a company that runs private hospitals and clinics, which in the past has been criticized for poor corporate governance, changed its corporate governance rules to allow activist shareholders to propose candidates for election to its board. The company even offered to cover the costs involved, if 40% of the votes were subsequently cast for the outside candidates.
In his clumsily titled, but brilliantly perceptive book Corpocracy (Wiley, New Jersey, 2008), Robert (Bob) Monks showed how modern corporations have maximized their wealth, balked at government regulation, and locked-out their shareholders, whilst the executives rewarded themselves with massive pay packages. Shareholder control over large corporations, he argued, is weaker now than ever. Not only are these corporations rarely held to account by regulators, they face even less control by those whose interests they are ostensibly there to serve.
Bob Monks feels that shareholders, particularly institutional shareholders, should attempt to influence corporate behaviour and governance for the benefit of all shareholders and society. He has called for the United States to adopt the British approach, with a federal statute that would give investors the right to call a special meeting to remove directors.
The Economist commented “in a healthy shareholder democracy, such a rule would not be controversial.”